P L D 1969 Dacca 344 (PLP)

M. R. KHAN, J.‑This petition under Article 93 of the Constitution has been presented by the WAPDA Employees' Union (E. P.) through its General Secretary. The petitioner claims to be a registered Trade Union and has called in question the validity of the order, dated 21‑1‑67 purported to have been made by the Deputy Director of Labour, Dacca Division (Annexure `D') declaring that the notice of strike issued by the petitioner on the East Pakistan Water and Power Deve lopment Authority has no validity. On this petition, a Rule nisi was issued upon the respondents to show cause why the said order should not be declared as having been made without any lawful authority and of no legal effect and why that order should not be directed to be cancelled, withdrawn or rescinded and the strike notice be treated as an valid one. The petitioner‑Union was formed in 1962 and was registered under the Trade Unions Act, 1926. It has a large number of members, all of whom are employees of the East Pakistan Water and Power Development Authority, a statutory corporation (hereinafter called E. P. WAPDA) and are engaged in various industries and establishments run and managed by it throughout East Pakistan. On 25‑4‑1966, the petitioner submitted to E. P. WAPDA a charter of demands as regards pay, allowances, contributory provident funds, gratuity and other terms and conditions of service of Class III and Class IV employees of E. P. WAPDA who are its members. The petitioner pursued its demand for a long time but it was of no avail. Having failed to persuade the employer to come to a settlement by negotiation, the petitioner served a strike notice on E. P. WAPDA on 16‑1‑1967, a copy of which was sent to the respondent No: 2 who is the Director of Labour and Chief Conciliation Officer. On 19‑1‑1967, the respondent No. 2 who is also the Registrar of Trade Unions withdrew the certificate of registra tion of the petitioner by an order of that date (Annexure `B'). Being aggrieved by that order, the petitioner preferred an appeal to the First Labour Court at Dacca. The Labour Court, by its order dated 21‑1‑1967 (Annexure `C') admitted the appeal and stayed the operation of the order of withdrawal of registration of the petitioner. But on the same date, i.e. on 21‑1‑1967, the Deputy Director of Labour who is a Conciliation Officer made the impugned order which runs thus "IMMEDIATE" 'Government of East Pakistan, Office of the Deputy. Director of Labour, Dacca Division, 63, Segunbagicha, Dacca‑

2. Memo. No. DDL/137 Dated 21‑1‑

67. To : The General Secretary, WAPDA Employees' Union, 45/G‑a‑A, R. K. Mission Road, Dacca, sub: Strike Notice. Please refer to the strike notice dated nil served to the Secretary, E, P. WAPDA by your Union copy of which hay also been received by this office. This notice has no validity as the registration of the Union has already been withdrawn by the Registrar of Trade Unions. (Sd.) Illegible 21‑1‑

67. For DEPUTY DIRECTOR OF LABOUR, Dacca Division." The petitioner's contention is that when the strike notice was duly given by it according to law and when E. P. WAPDA is a public utility service, the Conciliation Officer should have taken cognizance of the strike notice and held conciliation proceeding in the prescribed manner. The further contention of the petitioner is that the impugned order declaring the invalidity of the strike notice on the ground of the withdrawal of registration of the petitioner is illegal and that the said order is also violative of the principles of natural justice, the same having been made without giving the petitioner an opportunity to show cause. Moreover, the impugned order is alleged to be mala fide. The respondents appeared and filed an affidavit‑in‑opposition. They admitted that the petitioner was a registered Trade Union, but contended that, in view of the amendment of the definition of "worker" by the recent East Pakistan Ordinance No. XI of 1966, its registration was duly withdrawn by the Registrar of Trade Unions that with the withdrawal of its registration the peti tioner had no locus standi to raise any dispute and no dispute existed in the eye of law and that the Conciliation Officer was justified in refusing to take cognizance of the strike notice and to hold conciliation proceeding on the ground of invalidity of that notice. It was further contented that the strike notice was bad in law as it was un‑dated and no copy thereof was sent to the District Magistrate as required by the rules. The further attack against the strike notice is that that it was not accompanied by any signed statement that any ballot or other steps necessary to be taken under the Rules of the Trade Union had been taken before giving the notice. In other words, the legality of the strike notice was also attacked on the ground of non‑compliance with the provisions of rule 36 of the East Pakistan Industrial Disputes Rules. Section 21 of the East Pakistan Labour Disputes Act, 1965 (hereinafter called the Labour Disputes Act) provides that a dispute can be raised by a recognised Trade Union, a registered Trade Union and also by the workers employed in an establish ment through a body of seven workers duly authorised in that behalf. Section 19 of the said Act requires a `person,' which necessarily includes a registered Trade Union, a body corporate under section 13 of the East Pakistan Trade Unions Act, 1965, to give a strike notice to the employer in the case of a public utility service like E.P. WAPDA, Admittedly, the petitioner‑Union was registered as a Trade Union on 10‑11‑1962 under the Trade Unions Act, 1926. This Act was repealed and re‑enacted by the East Pakistan Trade Unions Act, 1965 (hereinafter called the Trade Unions Act). The petitioner's registration under the repealed Act was preserved by section 49 of the repealing Act, but its registration was withdrawn on 19‑1‑1967 by the order of the Registrar of Trade Unions (Annexure B'). Before the withdrawal of its registration, the petitioner gave a strike notice to E. P. WAPDA, a copy of which was admittedly received by the respondent No. 3, the Deputy Director of Labour and Conciliation Officer on 16‑1‑1967. It is not in dispute that the petitioner as a registered Trade Union raised a dispute as early as 25‑4‑1966 in regard to the terms and conditions of employment of its members. Thus, the petitioner raised the dispute and gave the strike notice at a time when its registration subsisted. Even otherwise, notwithstanding the withdrawal of its registration by the Registrar of Trade Unions, the petitioner, in view of the stay of the operation of the order of withdrawal of registration granted by the Labour Court by its order dated 21‑1‑1967, continued to remain in the eye of law a registered Trade Union. It is partinent to note that the impugned order declaring the invalidity of the strike notice was made on the same date on which the said stay order was granted. It does not matter much which of these two orders was earlier in point of time, because the operation of the order of withdrawal of registration was, at any rate, stayed by the Labour Court. When the petitioner, in view of the stay order granted by the Labour Court, continued to remain in the eye of Law a registered Trade Union, the validity of the strike notice could not be questioned on the ground of withdrawal of its registration. In this connection, Mr. Amirul Islam, learned Counsel for the petitioner submits that the registration of the petitioner was not, in fact, withdrawn, what, however, according to the learned Counsel, was withdrawn was the certificate of registration. He, therefore, submits that the certificate of registra tion alone having been withdrawn, the registration of the petitioner still subsists even without the Labour Court's stay order. It appears from the order, dated 19‑1‑1967 (Annexure `B') that the Registrar of Trade Unions, having regard to the amended definition of the `worker' introduced by Ordinance No. XI of 1966, found the petitioner debarred from forming a Trade Union and on that ground made that order, the operative part of which is as follows; "The certificate of registration of the Union is, therefore, withdrawn from this 19th day of January, 1967 in exercise of the powers conferred on the undersigned under subsection (2) of section 10 of the East Pakistan Trade Unions Acts, 1965. " Subsection (2) of section 10 of the Trade Unions Act, empowers the Registrar of Trade Unions to withdraw registration of a Trade Union if any of the grounds mentioned in that subsection is satisfied in a given case. Subsection (3) of that said Act, however, provides that on the withdrawal of registration of a Trade Union which is necessarily one under subsection (2), the Registrar shall withdraw the certificate of registration by a notice in writing. Although it is stated in the order (Annexure `B') that the certificate of registration wag withdrawn, the order of withdrawal was expressly stated to have been made in exercise of the powers conferred by subsection (2) of section

10. It is, therefore, clear that the Registrar of Trade Unions, in fact, withdrew the registration of the petitioner which was to be followed by the withdrawal of its certificate of registration as required under subsection (3) of section

10. On the face of it, the order the Registrar of Trade Unions being one under subsection (2) of section 10, what was withdrawn was the registration of the petitioner but not the certificate of its registration. Be that as it may, be as the registration of the petitioner, in view of the stay order granted by the Labour Court, continues to subsist in the eye of law, the Conciliation Officer was not correct in holding that the strike notice had no validity on account of the withdrawal of the registration, although he is empowered under the first proviso to section 5(1) of the Labour Disputes Act to satisfy himself as to the validity of a notice of strike before holding conciliation proceeding. Even if no order staying the operation of the order of withdrawal of registration had been made by the Labour Court, the legal position would not have been different inasmuch as the strike notice was given at a time when the petitioner was a registered Trade Union. We have not been able to find any provision in the Labour Disputes Act or the Trade Unions Act to the effect that a strike notice duly given by a registered Trade Union which is otherwise valid shall cease to be valid because of subsequent withdrawal of its registration. The real effect of withdrawal of registration of a Trade Union appears to be that with such withdrawal the Union ceases to be a body corporate under section 13 of the Trade Unions Act and the rights and liabilities as prescribed in Chapter III of that Act, which have nothing to do with strike notice, shall no more become applicable to that Trade Union for these reasons, we are of the view that the impugned order is bad in law. On the authority of the decision in the case of Chittagong Mercantile Employees' Association v. Chairman, Industrial Court (P L D 1966 S C 731) Mr. Abbas, learned Advocate for the respondents contends that with the withdrawal of registration, the petitioner had no more locus standi and the dispute raised by it ceased to be a dispute with the result that the strike notice given by it fell through. The decision in the cited case does not appear to be applicable here at all. In that case, the Industrial Disputes Ordinance of 1959 was under consideration. In that Ordinance, there was no provision entitling a registered Trade Union to raise a dispute which, as held in the cited case, could be raised by a workman himself and not by the Union on his behalf. This is no more true, because the East Pakistan Labour Disputes Act, 1965 which has repealed the Industrial Disputes Ordinance of 1959 provides for the first time in section 21 thereof that a registered Trade Union can raise a dispute, as has been done in this case. Moreover, in the cited case the very constitution of the Trade Union was held illegal, the same having offended against section 22(2) of the Trade Unions Act, 1926 (corresponding to section 24(2) of the East Pakistan Trade Unions Act of 1965). But this is not so in the present case. The registere3 Trade Union which raises a dispute under section 21 of the present Labour Disputes Act is necessarily entitled to give a strike notice in accordance with the provisions of section 19 thereof. In this case, as already said, the petitioner as a registered Trade Union raised the dispute and subsequently gave the strike notice. Both the raising of the dispute and the giving the strike notice were, therefore, quite in order. Hence, the cited decision is of no assistance to the respondents. Mr. Abbas next contends that the strike notice was not given in accordance with rule 36 of the East Pakistan Industrial Disputes Rules, 1960. These Rules appear to have been preserved by section 44 of the Labour Disputes Act and are still applicable so far as they are not inconsistent with the provisions of that Act. Apart from the saving provisions of the said section 44, the said Rules are also preserved under section 25 of the Bengal General Clauses Act, 1899. Rule 36(1) provides that the notice of strike shall be duly signed and dated. The grievance of Mr. Abbas is that the notice of strike given by the petitioner was undated. The copy of the strike notice (Annexure '4') appended to the respondents' affidavit‑in‑opposition, no doubt, shows that it was undated. But it is admitted in paragraph 9 of the affidavit‑in -opposition that the Deputy Director of Libour, Dacca Division (respondent No. 3) who is also a Conciliation Officer received a copy of that notice which had been given to E.P. WAPDA. When the copy of the notice was received by the respondent No. 3 on 16‑1‑1967, it goes without saying that E P.WAPDA must have received that notice on the said date at the latest. Section 19(1) (a) requires the giving of a notice of strike to the employer. According to section 17(1) (a); a conciliation proceed ing, in the case of a labour dispute relating to a public utility service, shall be deemed to have commenced on the date on which the strike notice is received by the Conciliation Officer. What is important according to these provisions is the date of receipt of the strike notice and not the date borne by the strike notice itself. Hence, the mere omission to put the date in the notice cannot be at all fatal. The further contention of Mr. Abbas is that the strike notice was not accompanied by any signed statement that any ballot or other steps necessary to be taken under the Rules of the Trade Union have been taken before giving the notice. This ground is in line with the provision of sub‑rule (2) of the said rule

36. The expression "the Rules of the Trade Union" occurring in rule 36(2), as it appears front section 6 of the Trade Unions Act, 1926 mean the constitution of the Trade Union concerned. Section 6 of the East Pakistan Trade Unions Act, 1965 which corresponds to section 6 of the earlier Trade Unions Act of 1926 makes it all the more clearer. No copy of the consti tution of the petitioner ‑ Union is before us. Mr. Abbas, however, has read out before us a copy of its constitution, but failed to point out any provision therein requiring the taking of ballot in any matter. Therefore, this ground also fails. The last contention of Mr. Abbas is that no copy of the strike notice was given to the District Magistrate as is required by sub‑rule (4) of rule

36. The said sub‑rule (4), no doubt, requires the sending of a copy of the strike notice to the District Magistrate of the district in which the industry is carried on. But this is only a directory provision and not mandatory. It appears from the Labour Disputes Act that the District Magistrate does not figure in any matter from the time of raising a dispute till its settlement. It seems to us that an intimation to the District Magistrate about the projected strike is necessary inasmuch as he is in charge of law and order. Therefore, non‑service of a copy of the strike notice on the District Magistrate is of no real consequence. However, it appears from the Annexure `X' to the petitioner's affidavit‑in‑reply that subsequently copies of that notice were sent to the different Deputy Commissioners within whose districts the E.P.WAPDA has industry and establishments. The provisions of sub‑rule (4) of rule 36 with regard to the giving of notice to the District Magistrate being directory, the said Annexure 'X' is a substantial compliance with that directory provision. In this connection, it is noticed that the alleged non‑compliance with rule 36 was not taken in the impugned order to be a ground for the alleged invalidity of the strike notice. As regards the petitioner's allegation that the impugned order is mala fide, the respondents deny it and characterise it as false. The impugned order was made the same day the stay order was granted by the Labour Court, and it was within two days of the withdrawal of the petitioner's registration. It is mainly because of the proximity of these dates that it is alleged by the petitioner that the impugned order male fide. The first proviso to section 5(l) of the Labour Disputes Act entitles the Conciliation Officer to satisfy himself as to the validity of a strike notice before entering upon conciliation proceeding. That being so, the Conciliation Officer cannot be said to have acted mala fide in making the impugned order, although it was made so soon after the with drawal of the registration and on the date of grant of the stay order, by the Labour Court. There is no material on record to show if the Conciliation Officer made the impugned order with knowledge of the stay order granted by the Labour Court. In fact, the Conciliation Officer, as stated by the learned counsel for the petitioner, was not a party in the appeal before the Labour Court. We do not, therefore, find any substance in the allegation that the impugned order is a male fide one. The petitioner has also invoked the principles of natural justice in that no show‑cause notice was issued to it before making the impugned order. The first proviso to section 5(1) of the Labour Disputes Act whereunder the impugned order was made, does not enjoy in the giving of a notice before deciding the validity or otherwise of the strike notice. However, the impugned order having been already found by us as bad in law, it is not really necessary to express any opinion as to whether the principles of natural justice are also attracted in this case. In the result, the Rule is made absolute with costs. We declare that the impugned order, dated 21‑1‑1967 made by the Deputy Director of Labour, Dacca Division, to the effect that the strike notice issued by the petitioner has no validity on the ground of withdrawal of its registration, has been made without any lawful authority and is of no legal effect. Before we part with this case, we would like to make it clear that we should not be taken to have expressed any opinion as to the legality or otherwise of the order withdrawing the registration of the petitioner, the same being a matter pending before the Labour Court for adjudication. MAKSUM‑UL‑HAKIM, J.‑I agree. A. B. Rule made absolute.