1971 PLC35 (PLP)

Now, the present case is that the second party challenged the application under section 34 (1) of the Ordinance. The main source of challenge of the second party is claimed to be the provisions of the Ordinance, that under section 22 (1) of the Ordinance the second party No. 2 is the collective bargaining agent of the workers of the first party and that the second party No. 1 is no longer the collective bargaining agent and hence, any agreement entered into by the first party and the second party No.1 would not be binding upon the second party No.2. Now, this argument does not stand in the taste of reasons, since it appears that even a registered Trade Union can be a collective bargaining agent under section 22 (1) of the Ordinance. In the ~ present case as I have elaborated the cases of the first party and the second party, it would appear that the second party No. 1 also served a strike notice simultaneously with the strike notice of the second party No. 2 and strike notice served by the second party No. 1 as have been referred to. It, therefore, means that the agreement enetered into by the second party No. 1 has been recognised by the second party No. 2, though they stated that their demands are outside the agreement. This does not appear to be correct. It appears that some of the demands as raised by the second party No. 2 have already covered by the agreement and therefore,. they were standing on a common ground. Further it has been submitted that as a federation the second party No. 2 should have been registered. But it has not been registered under section 22 of the Ordinance. Its locus standi has been questioned. Standing on such doubtful ground the second party No. 2 has been served this strike notice while an agreement between the second party No. 1 and the first party subsists. This appears to be not in conformity with the spirit of the Ordinance and as such, the strike shall be illegal, if it is declared, commenced or Continued during the period in which the settle ment or award is in operation in respect of the matters covered by settlement or award [section 46 (1) (b) of the Ordinance). While the second party No. 1 working as the collective bargaining agent of the workers of the first party, the second party No. 2 also appear in form, while challenging the bona fides of the agreement entered into by the second party No. 1 and the first party. In fact, the President of the second party No. 1 has filed the written objection as well as the application under Order VII, rule 11, C. P. C. This is very much against the spirit of the case of the second party No.

1. While the second party No. 1 says that it has no locus standi to enter into any agreement under the present Ordinance, it itself come forward through its representative td defend the position of the second party No.

2. The second patty No. 2, is absent, though notices have been served upon them. This is itself a contradictory position. From a perusal of the notice as I have already mentioned, it appears that the second party No. 2 has recognised the strike notice served by the second party No. 1 and also the agreement with the first party. This is a tripartite agreement entered into under section 5 (3) of the old Act which has been inconsistent with section 30 (4) of the present Ordinance, and therefore, it has been lawfully saved under the provisions of section 67 (2) (b) of the present Ordinance. The argument that no cause of action has been disclosed by the first party is not correct since- " The cause of action, as it means denotes a bundle of essential facts which it is necessary for the plaintiff to prove before he can succeed in his suit. It has no relation whatever the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff: It refers entirely to the grounds set forth in the plaint as the cause of action, or in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour." 9 D L R

197. It appears that in the present case there is a cause of action since the first party has clearly stated that there is an agreement and by resorting to strike the workers of the first party have violated the agreement and, therefore, the strike resorted to and continued by them is illegal. In view of all these reasons I find, that, the relevant provisions of the Act are consistent with the relevant provisions of the Ordinance as it relates so far to the present case and they have, been saved by section 67 (2) (b) of the Ordinance. Therefore, the application under section 34 of the Ordinance lies. A mere perusal of that section will show that by the agreement some rights were guaranteed to the first party. There is no doubt that grave emergency has been arisen in view of the stoppage of the publication of the newspapers due to the strike commenced, continued by the workers of the first party. There is a financial loss on the side of both the parties. There is no doubt that the members of the- public are deprived of in having their daily newspapers due to the seizure of the publication of the newspapers, as a result of the strike in question. The application under section 45 (1) is in a nature of tempo rary injunction under the C. P.C. In the circumstances-, "It is not necessary for the plaintiff, for temporary injunction, to establish that he has got a good case which is likely to -be decreed. If - the plaintiff has got sa arguable case, that is enough for the purpose of temporary, injunction. So far as the injunction is concerned, he is to prove a prima facie case for injunction. No Court should go into the merit of the suit in which' a temporary injunction is prayed for. " (11 D L R 103). It is also laid down that- "In the, case of temporary injunction (a) an application must show a fair prima facie case in support of the right claimed; (b) as actual or threatened violation of that right; (c) productive irreparable or at least serious damage (d) this conduct must be such as not to dissention him to assistance but it should be fair and honest and in particular there must be no acquiescence or delay; (e) there must be greater convenience in granting than refusing the injunction. (f) equally efficacious relief must not be obtainable by any other usaul mode or proceeding. " (11 D L R 470). In the present case the first party has fulfilled. all the conditions and, therefore, they are entitled to get temporary injunction for prohibiting the continuance of the strike commenced and continued by the workers .of the first party at the instance of the second parties. In this connection I once again state here that the provisions of Order VII, rule 11 (a) and (d), C. P. C., are not applicable to this present case and, therefore, the application under Order VII, rule 11 of the C. P. C. for rejection of the plaint fails. Both the learned members were, consulted in coming to the above findings and they have given their opinion in writing for prohibiting the strike. Hence, it is, ORDERED That the application under Order VII, rule 11 of C. P. C. is rejected on contest and the application under section 45 (1) of the Ordinance be allowed on contest. It is further ordered that the strike commenced and continued by the Press Workers of the first party at the instance of the second parties be prohibited.