P L D 1966 (W (PLP)

WAHIDUDDIN AHMED, J.‑

This is a petition under Article 98 of the Constitution of Pakistan. The petitioners, which is a Trade Union registered under the Trade Unions' Act, 1926, alleged that it represents the workmen of Ghandhara Industries Ltd., Karachi. In April, 1963, it is alleged that industrial dispute arose between the Employers and the workmen. The petitioners addressed a letter to the Employers for fixing an appointment to remove the misunderstanding between the parties. This was followed by another letter on 27th April, 1963. The Employers on the same date informed the petitioners that no Employees Union has teen officially recognised by them and as such the petitioners are not entitled to agitate any dispute between the workmen and the Employers. The Administrative Manager, however, informed the petitioners that their president .is prepared to discuss the matter in their individual capacity if they so desired. Being dissatisfied with this attitude of the Employers on 2nd May, 1963, the workmen went on strike. On 3rd May, 1963, the petitioners sent a letter informing the Conciliation Officer about the existence of the industrial dispute between the parties and about the strike which the workmen resorted to. This letter was acknowledged by the Conciliation Officer on 7th May 1963.

2. It appears that the Conciliation Officer contacted both the employers and the employees. He did not consider it necessary to hold a joint meeting because of the following reasons: "(1) There was no industrial dispute within the definition as given in the Industrial Disputes Ordinance. (2) The General Secretary and the Joint Secretary who signed the Notice of Strike in Form `A' were no longer workmen, as the Union had lost its representative character and was only representing the discharged workers and no workers on duty. (3) On 2‑5‑1963 when the workers went on lightening strike there was no dispute between the employers and workmen and the demands put forth on 7‑5-1963 were afterthought and were in contravention of the previous settlement referred to above. "(4) There was and is no dispute between the present workers and the Management of Ghandhara Industries Ltd., as is evident by the Notice of the Management dated 1‑7‑1963 (copy enclosed). (5) The petitioners have been by an order of the Civil Court restrained from interfering or taking possession of the assets of property or cash or operation of bank account or in any way inter‑meddling in the affairs of the General Motors Employees' Union and or Ghandhara Industries Employees Union until further orders, on 12‑6‑1963 in a Suit No. 258 of 1963 filed by Momin Khan and others against the petitioners. (6) In form `A' all the seven demands do not constitute an industrial dispute because they are in contravention of previous agreement and are vague and pertain to workmen whose services have already been terminated according to the Standing Orders Ordinance, 1960." The petitioners after waiting for 28 days filed this writ petition and claimed that the Conciliation Officer may be directed to issue a Failure Certificate under section 5 (4) of the Industrial Disputes Ordinance, 1959.

3. The petition is resisted on behalf of the Employers and other respondents. Their case is that the petitioners Union is not a representative one. The workmen about whom the dispute has been raised on behalf of the petitioners are no longer their employees; they were engaged as probationers on three months and as they failed to return to work on 3rd May, 1963, their service have been terminated in persuance of the terms of the contract applicable to them. It is further contended that since the Conciliation Officer had agreed with the Employers on these objections he was fully justified in declining to conciliate between the parties and in refusing to issue a Failure Certificate.

4. Mr. Nasiruddin, the learned Advocate‑General has taken us through the report of the Department dated 16th July, 1963. He has further referred us to the agreement entered into between the General Motors Overseas Corporation, Karachi Branch and General Motors Employees Union, Karachi dated 15th March, 1963. He has also drawn our attention to the conditions on which the workmen were employed by respondent Ghandhara Industries Ltd. after they had purchased the industrial concern from M/s. General Motors Overseas Corporation. Mr. Nasiruddin contended that the settlement between the employers and the employees was entered on 15th March, 1963 and, there fore, under the provisions of the Industrial Disputes Ordinance, 1959, it is not open to the employees to raise dispute in respect of which the settlement had already taken place. He further contended that on the terms on which the workmen were appointed it is quite clear that their status was that of probationers and, therefore, it was open to the employers to terminate the services of such employees without any notice to them under clause 12 of Standing Orders Ordinance No. III of 1960. The learned Advocate‑General further contended that on 7th May 1963, when the petitioners referred the dispute to the Conciliation Officer the workmen concerned were no longer in the employment of the Employers and, therefore, no industrial dispute could be said to exist between the Employers and the Employees and the Conciliation Officer was fully justified in not entering into the conciliation between the parties. In support of his contention the learned counsel has referred us to the various provisions of the Industrial Disputes Ordinance, the Rules and the Standing Orders.

5. On the other hand, Mr. Ali Ahmed Fazeel, the learned counsel for the petitioners has urged that on these objections the Conciliation Officer was not competent to decline to issue the Failure Certificate. The learned counsel contended that even if it is assumed for the sake of argument that the petitioners services has been terminated on 3rd May, 1963, the question whether their services were rightly terminated has to be determined by a competent Tribunal. The learned counsel further contended that the Conciliation Officer had no jurisdiction to determine these disputes and his only duty was to issue a Failure Certificate, if he was of the opinion that no conciliation could take place between the employees and the Employers: In support of his contention the learned counsel has relied on a decision of the Supreme Court in Hotel Metropole Ltd. Karachi v. Employees' Union (P L D 1964 S C 633). At p. 635 of the report their Lordships considered this aspect of the case. It was urged before their Lordships that the Union concerned were not competent to raise industrial dispute on behalf of the present employees of the Hotel concerned. Their Lordships rejected this argument on the observation that the point appeared to them to be irrelevant. Their Lordships further observed as under :‑ "The question before the Conciliation Officer in each case was one on which the views of the contesting parties were irreconcilable, and therefore, a settlement was virtually impossible. The point of locus standi, and the consequential point of the existence of an industrial dispute were, in the circumstances, matters requiring adjudication, which an Industrial Court appointed under Ordinance is to deliver, in the first instance, under the existing law. Adjudication is wholly outside the purview of conciliation, and once the Conciliation Officer saw that a settlement in respect of these points, which are points of law, was not possible his duty plainly was to declare a failure under section 5(4). In each case he expressed an opinion to that effect, but, as the High Court has pointed out, he took a course not warranted by law, namely, he referred the cases to his superior officer, to whom he left it to make the necessary declaration, or not to make it, as he pleased." In view of this clear observation of their Lordships we consider that the contention of, the learned counsel for the petitioners is well founded. The question, whether an industrial dispute exists, that the petitioners Union is competent to agitate the dispute on behalf of the employees and other objections raised by the respondents could be determined only by the Industrial Court and not by the Conciliation Officer or even by this .4 Court. Under section 12(4) of the Industrial Disputes Ordinance, this Court is not competent to enter into any such questions. It is not open to this Court to give any decision on merits on the points raised before us. Perhaps, the contention raised on behalf of the Employers may be substantial but at the same time, these must be raised and determined by a competent Tribunal. In our opinion, therefore, the Conciliation Officer in, case he comes to the conclusion that the parties were not Willing to conciliate their dispute was bound to issue a failure certificate in terms of section 5(4) of the above provision of law.

6. There is, however, one difficulty in the way of the petitioners. Recently, the Governor of West Pakistan was pleased to pass the West Pakistan Industrial Disputes Conciliation and Adjudication Order, 1965, dated 13th November, 1965, under rule 132 of the Defence of Pakistan Rules, read with the Government of Pakistan Ordinance No. SRO/1I1‑(R)/65 of 6th September, 1965. Under this provision of law certain changes have been made about the powers of the Concilia tion Officer to issue a Failure Certificate. Under clause 3(3) it is provided that if no conciliation is possible between the employers and the employees then it is the duty of the Conciliation Officer to send a report to the Government concerned and it is for the Government to decide whether a reference to the Industrial Court should be made in a particular case. In order to appreciate this point it will be useful to reproduce clauses 3(3) and 4 of the above‑mentioned notification. They are in the following terms: "3(3).‑If no settlement is arrived at within fourteen days of commencement of the conciliation proceedings, the Conciliation Officer shall, within seven days after close of conciliation proceedings send to Government full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about the settlement thereof together with full statement of such facts and circumstances and reasons on account of which in his opinion a settlement could not be arrived at.

4. Reference to Industrial Court.‑If on a consideration of the report referred to in sub‑clause (3) of clause 3, Government is satisfied that there is a case for reference to the Industrial Court, it may make such reference; and where Government considers such reference wholly or in part to be inexpedient in public interest to be made to the Industrial Court, it shall record and communicate to the parties concerned its decision therefore." In view of the change in law Mr. Fazeel had to concede that the Conciliation Officer in the present case also shall have to follow the above procedure. Now the Conciliation Officer in case he is unable to bring about conciliation between the parties instead of issuing a Failure Certificate shall have to submit a complete report about the industrial dispute to the Government for satisfying itself whether it is a fit case for reference to the Industrial Court. In these circumstances, we would direct the respondent to comply with the above‑mentioned provisions of law in respect of the industrial dispute raised by the petitioners after notice to the parties at a very early date.

7. In the result, subject to the above remarks, the petition is allowed to the extent indicated above with no order as to costs. K.B.A. Petition partly accepted.