P L D 1965 Dacca 211 (PLP)

A. SATTAR, J.‑The petitioner, The East Pakistan Aluminium and Iron Manufacturing Co., a partnership firm, has obtained this rule on the respondents, namely: (1) Chairman, Industrial Court, (2) Dacca Aluminium Workers' Association, and (3) Province of East Pakistan to show cause why the order dated the 27th July 1963, passed by the Chairman, Industrial Court, East Pakistan in T. U. R. Case No. 6 of 1962 should not be declared as having been made without lawful authority and as such of no legal effect. The facts of this case may be shortly stated as follows: The petitioner‑firm has been carrying on the business of manufacturing aluminium utensils and its factory is at 108‑C and 111, Tejgaon Industrial Area, Dacca. Respondent No. 2, Dacca Aluminium Workers' Association (hereinafter referred to as the Union), applied to the petitioner‑Company on the 28th August 1962, for recognition of the Union under section 28‑B of the Trade Union Ordinance. The petitioner‑firm refused recognition to the Union on the 30th August 1962. Thereafter, one Muhammad Idris describing himself as the General Secretary of the Union applied to the Chairman of the Industrial Court, East Pakistan on behalf of the Union for recognition under section 28‑C of the Trade Union Ordinance. The petitioner‑firm contested the claim of the Union for recognition. The matter came up for consideration before the Industrial Court on the 14th May 1963; but, as the Member of the Industrial Court representing the employers was not present the case was adjourned. It came up for final hearing on the 27th of July 1963. On this day also the said Member was not present, but the Chairman, by this order of the same date, directed the petitioner‑firm to recognise the Union. The petitioner‑firm has challenged the order of the Chairman on the ground that the Court was not properly constituted in accordance with the provisions of section 7(2) of the Industrial Disputes Ordinance, 1959. Mr. Ishtiaq Ahmed has appeared for the Chairman, Industrial Court and the Province of East Pakistan but no affidavit‑in- opposition has been filed in this case. Mr. Habibur Rahman Sharif who appears for the petitioner firm has contended that, as on the date of hearing the Industrial Court was not constituted as required under section 7(2) of the Industrial Disputes Ordinance, the order passed by the Chairman, in consultation with the Member representing the employees only, is bad in law. Section 7 (2) of the Industrial Disputes Ordinance provides that an Industrial Court shall consist of a Chairman and two Members to advise the Chairman, one of the Members will represent the Employers and the other will represent the Workmen. Mr. Ishtiaq Ahmed, on the other hand, has contended that, as the Members only advise the Chairman and the decision ultimately rest with him, the absence of one of the Members in the instant case does not affect the decision of the Chairman. In this connection, reference has been made to the rules framed under the Industrial Disputes Ordinance by the Provincial Government. Rule 29 of the East Pakistan Industrial Disputes Rules, 1960 provides for resignation of any Member of the Industrial Court at any time. Rule 30 provides for grant of leave of absence to a Member by the Chairman of the Industrial Court. We find that rule 34 provides that, while giving an Award or a decision, the Chairman shall consider the advice given to him by the members of the Court although he may not be bound to accept the advice either in full or in part. It further provides that such advice may be given orally during day to day hearing of the case and finally it shall be in writing signed and dated by the members concerned either jointly or separately after the close of the hearing of a dispute. The written advice so given shall form part of the record. The question that arises, therefore, in this case is Whether in a case where a particular member of the Industrial Court did not either hear a particular dispute or was not consulted by the Chairman the decision given by the latter is a valid decision under the Industrial Disputes Ordinance read with the rules framed thereunder. The purpose behind the appointment of the members to advise the Chairman in the matters of award and decision clearly appears to be that the points of view of the employers and the employees should be placed before the Chairman. It is true that the parties are also represented at the time of hearing but the idea behind the appointment of the two members seems to be that some independent advice with regard to the two view points, namely, that of the workers and the employers should be presented to the Chairman so that he can come to a correct decision. In our view, if the present decision of the Chairman which has been arrived at by him without consulting and receiving the advice of the member representing the employers is upheld, the whole purpose of the Act would be frustrated. In this connection, Mr. Ishtiaq Ahmed has drawn our attention to rule 7 of the Industrial Disputes (Central) Rules, 1960. It lays down that subject to the provisions of section 9 the Court shall act notwithstanding any casual vacancy in its number and no act, proceedings or determination of the Court shall be called in question or invalidated by reason of any such vacancy. Section 9 of the Ordinance provides for filling up of casual vacancies in the offices of the Chairman or members of the Industrial Court. This rule framed by the Central Government, no doubt, sanctions taking of decisions even in the absence o 8 a member of the Industrial Court, but we have no such corresponding rule in the rules framed by the East Pakistan Government. It is not necessary for us to decide to what extent rule 7 of the Industrial Disputes (Central) Rules is or is not consistent with the provisions of the Ordinance itself; but, as there is no such rule in the Provincial rules with which we are concerned, we find no authority for the proposition that a decision given by the Chairman without consulting one or both the members of the Industrial Court is a decision which is legal. We, therefore, hold that the decision in question of the Chairman has been given without any legal sanction. The rule, therefore, is made absolute. The order of the Chairman is declared to have been passed without any lawful authority. We direct the parties to bear their own costs. A. M. SAYEM, J.‑I agree. K. B. A. Rule made absolute.