PLD 1948 PC 150 (PLP)

INAMULLAH, J.

‑There are two applications before me, one application under O. XXXIX rule .2 read with section 151 Civil P. C. for a temporary, injunction restraining the defend ant No. 1 the Federation of Pakistan from taking any steps to enforce the interim award . of the Industrial Tribunal published on 25th June 1953, and the other an application under section 151 Civil P. C. for an order to stay the hearing of applications for payment of wages, pending before the Small Causes Court,. Karachi. These two applications arise in a suit for a declaration that an interim award given by the Industrial Tribunal was invalid and ultra vires and for permanent injunction against the Federation of Pakistan and the other defendants Nos. 2 to 374 restraining their from taking any steps to enforce the interim award given by the Tribunal. The facts shortly put leading to the present case are these. The plaintiffs area Tramway Company and the defendant No. 1 is the Federation of Pakistan and the defendants Nos. 2 to 374 are plaintiff's employees. The plaintiffs are doing the business of running Tram‑cars and buses which they had purchased as a going concern from the East India Tramways Co., Ltd., in 1949. The defendant's are members of the Karachi Tramways Employees Union. On 13th April 1953, the Presi dent of the said Union Mr. Jan Sherazi served a notice on the plaintiffs requesting them to accede to their demands failing which they were to go on strike from 27th April 1953. The strike commenced on 28th April. On 29th April the Company issued a notice calling upon the workers who had remained absent to report themselves for duty on 30th April. The Company issued another notice dismissing these workers on their failure to comply with the earlier notice. On 4th May the Government of Pakistan issued its first Notification referring 7 points of disputes to an Industrial Tribunal appointed by it for adjudication. The said notification of 4th May 1953, prohibited the continuance of the strike or lock‑out in connection with the alleged dispute in existence. The President of the Union addressed a letter to the a Company stating that they had decided to call off the strike with immediate effect and requested the Company to let them know immediately at what time they should report for duty. This letter was received by the Company on the 5th May 1953. The Company did not send a reply to the Union but wrote a letter on the 6th May 1953. to the Joint Secretary, Ministry of Labour stating the reasons why they were not prepared to allow the workers to resume duty. The Tribunal held its sitting on the 1st June 1953. The Government on the same date by a notification amended its first notification by adding two more items to the Schedule given in the notification. One of the items mentioned in the Schedule was "dispute about the wages for the period of lock out". The award, which has been challenged, has been given on the dispute regarding the wages of the workmen for the lock‑out period. The interim award has been challenged on various grounds before me in order to show that the same was made without jurisdiction and therefore this Court would have jurisdiction to grant the relief claimed for in the plaint. The important question before me is what are the considerations on which a temporary injunction can be granted. The Bench of this Court in Civil Miscellaneous Appeal No. 33 of 1953 unreported case after considering English and Indian authorities approved the principles laid down in the Daily Gazette Press Limited (A I R 1930 Sind 287) for granting a temporary injunction: They are as under :‑ (1) That there is a serious question to be tried at the hearing, and there is a probability that he will be entitled to the relief sought by him, or in other words that he has a prima facie case to go to trial. (2) That the Courts' interference is necessary to protect him from that species of injury which the Court calls irreparable before his legal right can be established on trial, and (3) That the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting it. In the first place keeping the above principles in view the question is whether the plaintiffs have been able to establish a prima facie case or not. I have given my very best consideration to the arguments of Mr. Choithram, the learned advocate for the plaintiffs and I have come to the conclusion that the plaintiffs have failed to establish a prima facie case. It may be mentioned at the out‑set that the plaintiffs in order to establish a prima facie case have to show that either the Government had no jurisdiction to make a reference or that the Tribunal has acted without jurisdiction. This Court, it has to be borne in mind, has no jurisdiction to sit in appeal or revision over the acts of the Government relating to the industrial Disputes Act or the Tribunal. In this con nection the legal maxim omnia praesumuntur rite isse acta (all things are presumed to be rightly done) has also to be borne in mind. The burden of proof primarily and essentially is on the plaintiffs to show that either or both the Government and the Tribunal have acted without jurisdiction. Mr. Choithram, the learned advocate for the plaintiffs has in the first place very strenuously contended that the Tribunal had no jurisdiction to give an award in piece‑meal. His contention is that the Tribunal should have given its decision on all the matters referred to it at one and the same time. He has relied, in the first place, on section,15 of the Industrial Disputes Act 1947 in support of his contention. The relevant portion of section 15 on which he relies is as under :‑ "(1) Where an Industrial dispute has been referred to Tribunal for adjudication, it shall hold its proceedings expeditiously and shall as soon as practicable on the con clusions thereof submit its award ‑ to the appropriate Government. (2) On receipt of such award the appropriate Government shall by order in writing declare the award to be binding". Mr. Choithram contends that the plain construction of the above is that the award has to be given at one and the same time on all the questions' referred to it and not piece meal. It is contended that if the Legislature has so intended it would have given some indication in section 15 as regards the award being given piece‑meal. This contention, in my opinion, has no force. This is based on a fallacy that the award is an adjudication on all the points referred or all the disputes between the employer and, the employees. The argument ignores the definition of award given in the Indus trial Disputes Act 1947. Section 2 (b) of the Act defines "award" in the following terms :‑ "'Award' means an interim or final 'determination by an Industrial Tribunal of any industrial dispute or of any question relating thereto". If in section 15 of the Act the word "award" is substituted for the definition given above it would appear that the Tribunal can adjudicate upon any industrial dispute or any question relating thereto. The nest ground in support of the contention that the award should have been on all the points referred to the Tribunal is that the reference was indivisible. There is no force in this contention. There is nothing in the Industrial Disputes Act to limit the power of the Tribunal to give interim award or to adjudicate only one question at a time. The Civil Courts would be slow to put any such limitation on the power of the Tribunal unless it was expressly provided in the Act or clearly implied under any provision of the Act. I have not been shown any such provision. Mr. Choithram has relied on a case reported in A I R 1938 All. 195 in which it had been held that the award should be entire and complete unless there was an agreement between the parties which authorised the arbitrator to make successive awards. This case, in the first place, is no longer good law in view of section 27 of the Arbitration Act 1940 under which interim awards can be given. In this connection the commentary by Krishna Swami on the Arbitration. Act 3rd Edition 1953 at page 255 on section 27 (Powers of arbitrators to make interim award) of the Arbitration Act 1940 is noteworthy. "There was no specific provision either in the Arbitration Act of 1899 or in the second Schedule of the Civil Procedure Code, 1908, authorizing an arbitrator to make an interim award. It was not permissible for an arbitrator to give a provisional or incomplete award". The author further at page 256 comments as under :‑ Subsection (1) of the present section seeks to clarify the position by definitely recognizing interim awards, and authorizes an arbitrator or an umpire to make an interim or provisional award. But this power of the arbitrator is subject to the terms of the agreement of reference. The only change that this subsection appears to introduce seems to be, that under the old law, if the agreement of reference made provision for interim awards, such an award could be made. The present section lays down that unless the power of making interim awards is taken away by the terms of the agreement of reference, the arbitrator can make an interim award. Under the old law the presumption was against interim awards, and therefore the parties could by the agreement of reference confer that power on the arbitrator. According to the new section, the law authorizes the arbitrators to make interim awards, and the power to deprive the arbitrator of this authority is given to the parties who may, by a contract to the contrary, prevent the arbitrator from making an interim award . In the second place the decisions under the Arbitration Act on the question of award would not have much relevancy in view of the difference in the definition of the term "award" between the Arbitration Act and the Industrial Disputes Act. I have already given the definition of the term "award" as mentioned in the Industrial Disputes Act. "Award" under the Arbitration Act is defined as "award" means an arbitration award". It is noticeable that the definition of the term "award" in the Industrial Disputes Act is very wide. The Supreme Court of India in a well considered judgment in the case of the State of Madras (A I R 1953 S C 53) held that the scope of adjudication by a Tribunal under the Industrial Disputes Act is much wider than the Arbitration Act and the analogy between the Industrial Disputes ‑Act and the Arbitration Act is somewhat misleading. Mr. Sharifuddin, the learned counsel for the Federation of Pakistan has relied on an Indian authority which has a direct application to the question under consideration. He has relied on the case of the Punjab National Bank (A I R 1952 Pb. 134). In that case the Tribunal had given its interim award about the wages of the workmen for their wrongful dismissal. It was contended in that case that the Tribunal could not do so. Weston, C. J, and Harnam Sing, J. in a well considered judg ment held as under :

"But it is said that the expression `interim award' means final determination of some items out of the items that the Tribunal is called upon to determine. The argument raised is that as the order passed on the 12th of September 1951 does not finally determine any of the matters referred for adjudication to the Tribunal the order does not come within section 2 (b) of the Act and the Tribunal had no jurisdiction to make that order. In 'Yugal Kishore Sinha v. The State of Bihar' ((1950) 2 Labour L J 539), an identical contention was raised. In repelling the contention Meredith, C. J., (Sheerer and Dass, JJ. concurring) said: The Oxford Dictionary defines interim, inter alia, as a temporary or provisional arrangement adopted in the mean while . There is no reason why this ordinary meaning should not be attached to the word in section 2 (b), and in fact the context clearly shows that that is the meaning attached. `Award' is defined as an interim or final deter mination, not only of an industrial dispute, but also of any question relating thereto. Therefore it is clear that in regard to even a single question, both an interim and a final deter mination are contemplated. Manifestly; the word interim in such a context must mean a provisional or temporary arrangement made in a matter of urgency and subject to a final adjustment or complete determination of the dispute ; for example, a payment on account pending final settlement of the amount as in the present case'. With great respect I follow the opinion expressed by the Full Bench of the Patna High Court in (1950) 2 Labour L J 539 and hold that the Tribunal had jurisdiction to make the order that it made on the 12th September 1951". It was urged in the second place that the Government had no jurisdiction to refer the question of wages to the Tribunal as no dispute existed in respect of the same. The Government would have jurisdiction only if there was any dispute or difference between the employers and employees. The con tention is that on the 4th May 1953, there was no demand made for wages by the workers and a repudiation of the same by the Company which could constitute a dispute so as to give jurisdiction to the Government to refer the item about the wages to the Tribunal. Mr. Choithram relied on A I R 1921 Cal. 342 and 46 Cal. 534 at page 539 for the proposition that there must be a demand by one party and a repudiation of the same by the other in order to constitute a dispute. The above argument is advanced on the basis of the two notifications. It is necessary to reproduce the material portions of the two notifications in order to appreciate the contention raised by the learned advocate. The two material paragraphs of the First Notification dated 4th May 1953, are as under :‑ "Whereas an Industrial dispute upon the issues specified in the Schedule hereto annexed exists between Messrs. Mohamedali Tramway Company, Karachi, and the Karachi Tramways Employees Union. Now, therefore, in exercise of the powers conferred by subsection (1) of section 10 of the Industrial Disputes Act, 1947 (XIV of 1947), read with subsection (1) of section 7 of that Act, the Central Government is pleased to refer the dispute to an Industrial Tribunal consisting of Mr. Mansur Alam . . . . . . . . . , . . . . . for adjudication of the said dispute". The Second Notification, dated 1st June is as under :‑ In exercise of the powers conferred by subsection 10 of the Industrial Disputes Act, 1947 (XIV of 1947), the Central Government is pleased to order that the following amendment shall be made in this Ministry's Notification No. LR‑1 (60) /51, published in the Gazette of Pakistan Extraordinary, dated the 4th May 1953, namely ;‑ In the Schedule of the said notification, the following items shall be added at the end; namely :‑

8. Wages for the period of lock‑out.

9. Determination of the strength of the staff in different categories which the company should maintain for the efficient running of the concern". It is contended that the only effect of the notification of the 1st June 1953, was to add two more items of dispute in the Schedule. In other respects the notification of 4th May remains the same with the result that the notification as amended would purport to recite the newly added dispute as existing on the 4th May 1953, which admittedly did not exist. It is therefore urged by Mr. Choithram that the Government had no jurisdiction to refer the question of wages as "existing dispute" as no demand for‑wages was made and repudiated. The above contention has no force. The Supreme Court of India in the case of Madras States (A I R 1953 S C 53) had occasion to consider similar argument advanced on the basis of the words "has arisen" occurring in the reference made by the Government. It was contended in the case that no dispute had arisen and therefore the Government had no jurisdiction to make a reference to the Tribunal. In order to appreciate the observations of the learned judges of the Supreme Court it is necessary to reproduce the. relevant portion of section 10 of the Industrial Disputes Act 1947. (1) If any industrial dispute exists or, is apprehended, the appropriate Government may, by order in writing. (a) refer the dispute to a Board for promoting a settle ment thereof ; or (b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry ; or (c) refer the dispute to a Tribunal for adjudication". The Supreme Court in the case referred to in a well considered judgment made the following observations :‑ "But, in truth, it was not material to consider whether there was any dispute outstanding between the first res pondent and his employees when the Government made the reference on 20th May 1947. The learned judges appear to have assumed that the disputes referred to a Tribunal under section 10 (1) (c) of the Act must, in order that the resulting award may be binding on any particular industrial establishment and its employees, have actually arisen between them. "Analyzing the order of reference of the Madras Government now under consideration", the learned judges observe "it is obvious that there is no mention of the existence of any dispute between the petitioner (the first respondent herein) and his workmen . . . . . . In fact there was no dispute to be referred to a Tribunal so far as this petitioner is concerned. If therefore there was no juris diction to make any reference, it follows that the whole reference and the award are both invalid and not binding on the petitioner". This view gives no effect to the words "or is apprehended" in section 10 (1)". The material consideration in the present case is only whether the Government could make a reference without a particular dispute, though an industrial dispute being in existing one (sic) the date of reference. I respectfully agree with the opinion expressed by the learned judges of the Supreme Court in the case referred to above that the dispute need not exist; it is sufficient if it was apprehended. In the present case it has not been contended by Mr. Choithram that the dispute about wages for the period of the lock‑out could not be apprehended by the Government. In this connection a reference may also be made to a case reported in A I R 1951 Trav. Coch. 203 in which it has been held that it is a pure executive or administrative act of Government to refer an industrial dispute to a Tribunal appointed by them. An act which is executive can be challenged only on the ground of want of jurisdiction and the Court would not be a meticulous in construing the words used by the executive giving effect to any particular provision of law in the present case section 10 of the Industrial Disputes Act. Another case which need be referred to is A I R 1952 Pat.

56. The question was whether a demand was necessary in order to constitute a dispute within the meaning of the Industrial Disputes Act, their Lordships held that it was not necessary and‑they differed from the view taken by the Madras Court in A I R 1951 Mad.

616. Mr. Choithram had relied on a Madras case reported in 1951 Mad. 191 for his contention that there should be a demand and denial and that there should be material before the Government to conclude that there was a dispute. It is sufficient to state that this case has been overruled by the Supreme Court of India in 1953 Supreme Court 53 already referred to above. It was also contended by Mr. Choithram that the Court cannot read the word "apprehended" in the notification. He relied on Halsburys Volume 10 2nd Edition page 262 para. 328 for his contention that the expressed provision in the instru ment excludes any stipulation which would otherwise be implied. There is no force in this contention. While inter preting the notification of 4th May 1953, the reference to section 10 of the Industrial Disputes Act cannot be ignored and emphasis laid only on the word "existed". The Govern ment was exercising its power of reference under section 10 and it would be deemed to make a reference in respect of the dispute which did not exist but was apprehended. The very fact that the dispute about the wages for the period of lock out did not exist on the 4th May 1953, would imply that the Government had made a reference about a dispute which was apprehended. Mr. Choithram also contended that the arbitrator (Tribunal) could not give himself jurisdiction to find that industrial dispute existed. He relied on 30 T L R 287 in support of his contention. There is no force in this conten tion. The Tribunal did not give itself jurisdiction to give any finding whether a dispute existed or was apprehended. The Tribunal in the first place had relied on the Madras case decided by the Supreme Court and reported in A I R 1953 S C 53 already referred to above and it was only in the alternative that it found that dispute did exist on facts also. The Tribunal did not act without jurisdiction in interpreting the reference made to it. It was also contended that the reference was vague. It was held in a case reported in A I R 1949 F C 148 and in the case of the Supreme Court already referred to above that it is not necessary for the Government to give particulars of the dispute ; it was sufficient if the existence of a dispute and the F fact that the dispute was referred to the Tribunal are clear from the order. This would be sufficient compliance of section 10 of the Industrial Disputes Act. I would now consider the question of irreparable injury. In the present case if the plaintiffs are refused ‑the interim injunction it cannot be said that they would suffer an irrepar able injury. The only consequence that can follow is that they are likely to be prosecuted under section 29 of the Industrial Disputes Act for the breach of any term of the award. It was observed by a Division Bench of this Court in the case of Hotel Metropole (Miscellaneous Appeal 33 of 1953 (P L D 1954 Sind 61): "Under section 29 of the Act the plaintiff would be liable to punishment for breach of any term of the award which is binding upon him under the Act, and presumably the same would be the position in any other legal proceedings based upon the award. The matters raised in this suit would therefore be open to the plaintiff in the event of a prosecu tion or other proceedings". I respectfully adopt the above observation and am of the opinion that the plaintiffs would not suffer any irreparable injury. So far as the question of the balance of convenience is concerned the balance lies in favour of the defendants. The defendants are petty workers employed by the plaintiffs company and if their application for the recovery of their wages is stayed they would suffer great hardship as the present suit is likely to take sometime before it is decided. The plaintiffs in case of success can get back the money from the defendants. For the reasons set forth above I hold that the plaintiffs have failed to make out a prima facie case and also other conditions necessary for the grant of a temporary injunction. The two applications are dismissed with costs and the injunc tion orders are discharged. A.H. Applications dismissed