P L D 1966 Supreme Court 731 (PLP)

S. A. RAHMAN, J.‑The appellant, the Chittagong Mercantile Employees' Association, sought a writ from the High Court at Dacca under Article 98 of the Constitution for quashing an order passed by the Industrial Court of East Pakistan. The petition was dismissed by the High Court, but a certificate was granted under Article 58 (2) of the Constitution because the case involved a substantial question of law as to the interpretation of the Constitu tion. This appeal has, consequently, been filed on the basis of that certificate, and, along with the Memorandum of appeal, a petition has also been submitted to this Court for permission to raise other points in the case, which are not covered by the certificate. In order to appreciate the points involved in this dispute, the relevant facts may at the outset, be briefly summarised. The appellant is a Trade Union, which was registered under the Trade Unions Act, 1926, in the year 1949. It claims to represent the clerical staff who are employees of the six firms that are impleaded as the 2nd to the 7th respondents to this appeal. The first respondent is the Chairman of the Industrial Court of East Pakistan, Dacca. It appears that the appellant made certain demands on the employer‑respondents, concerning the terms of service of their clerical workers. on the 5th of January 1962. Direct negotiations having proved fruitless, the appellant approached the Conciliation Officer, in accordance with the provisions of rule 24 of the East Pakistan Industrial Disputes Rules, 1960. The Conciliation proceedings also proved abortive and a certificate of failure was granted to the appellant by the Conciliation Officer, under section 5 (4) of the Industrial Disputes Ordinance, 1959, on the 23rd of May 1962. The appellant then filed six cases Nos. 80 to 85 of 1962, in the Industrial Court of East Pakistan. The employer‑respondents put in appearance, in answer to the processes issued, and took the stand that the cases were not maintainable as the appellant‑Union was not legally constituted in conformity with the provisions of section 22 (2) of the Trade Unions Act, 1926, as amended in 1960, and, therefore, had no locus standi in the matter. The Industrial Court gave effect to this objection and the appellant's petitions were rejected by the Chairman and Mr. K. M. Nasirul Huque, Member, representing the employers. Mr. Abdul Qader, the Member, representing the employees, however, dissented. It was against the order of the majority that the appellant moved the High Court and obtained a rule on the respondents to show cause why the impugned order should not be declared to have been passed without lawful authority. In the High Court, an objection was taken, on behalf of the respondents, that as the impugned order of the Industrial Court was an "award" within the meaning of the Industrial Disputes Ordinance, 1959, and was, therefore, susceptible of an appeal under section 12 (5) of the Ordinance, as amended in 1962, the application should not be entertained by the High Court, on the plea that an effective alternative remedy was open to the appellant. On behalf of the appellant, however, the position was adopted that the order in question did not amount to an award but was merely a decision on a preliminary point and as such was not appeal able under the Ordinance. The High Court upheld the objection of the respondents on this point but proceeded to deal with other points raised before them to order to make a com plete adjudication. One of the points taken, on behalf of the appellant, in the High Court was that Ordinance No. LXXIX of 1962, by which an appeal to the High Court was provided, against the award of an Industrial Court, by amendment of the Industrial Disputes Ordinance, 1959, was ultra vires of the President, as the subject of legislation fell within the Provincial sphere, under Article 32 of the Constitution, read with the First Schedule thereof. The High Court took the view that the Ordinance had been promulgated by the President in the national interest, with a view to achieve unanimity in the Provinces of Pakistan on the point involved and, therefore, Article 131, clause (2) of the Constitution was attracted and the vires of the Ordinance could not be successfully attacked. The High Court also held that the constitution of the appellant‑Union offended against the provisions of section 22 (2) of the Trade Unions Act, 1926, as amended by Ordinance XIV of 1960. That subsection enacts that a "registered Trade Union shall not elect more than 25 percent of the total number of its officers from amongst the persons who are not, for the time being, employed or engaged in the industry with which the Trade Union is connected." The finding given by the Industrial Court on this point was declared to be unexceptionable, on the admitted facts of the case. The claim of the appellant‑Union that it was entitled to maintain proceedings before the Industrial Court, on behalf of the workers, on the strength of section 13 of the Trade Unions Act, was also negatived by the High Court. Section 13 lays down that "every registered Trade Union shall be a body corporate by the name under which it was registered, and, shall have perpetual succession and a common seal. with power to acquire and hold movable and immovable property and to contract, and shall by the said name sue and be sued". This section, in the opinion of the High Court, had no bearing on the question whether a registered Union, like the appellant, could raise a trade dispute. In the view of the learned Judges, to entitle a Union to raise such a dispute, it should first comply with the provisions of section 22 (2) of the Trade Unions Act, 1926, as amended. This condition was not satisfied in the instant case and, therefore, the Union was held disentitled to pursue the dispute, on behalf of the workers, before the Industrial Court. The proceedings before the Industrial Court were also attacked, on behalf of the appellant, in the High Court, on the ground that the Member of the Court representing the employers, absented himself on certain hearings. The High Court held that the absence of one Member, on some hearings, did not invalidate the Court's proceedings, by virtue of the provisions of section 8 of the Industrial Disputes Ordinance. Reference was also made, in this connection, to rule 30 of the East Pakistan Industrial Disputes Rules, which provides for leave of absence to a Member of the Court. Mr. M. Asir, who appeared before us, in support of the appeal, formulated the following points for our consideration in this case:‑ (1) The order, passed by the Industrial Court was not an "award", but a mere decision and, consequently, the petition under Article 98 of the Constitution was entertainable by the High Court. (2) The proceedings of the Industrial Court were vitiated by the absence of the Member, representing the employers on some dates of hearing. (3) The appellant was a registered Union, working from 1949 and had been recognised as such by the respondent‑employers, by agreement in writing, in 1951, and again in 1958. The constitution of the appellant‑Union could not be challenged under the Trade Unions Act, 1926, as amended by Ordinance XIV of 1960, because its status was governed by the un-amended Act, read with East Pakistan Trade Unions (Recognition) (Third) Ordinance, 1958 (Ordinance LIX of 1958), which held the field at the relevant time. We do not consider it necessary to take up consideration of points Nos. 1 and z above. The third point, which concerns the locus standi of the appellant and goes to the root of the whole dispute, involves an important legal issue which we proceed to examine. "Industrial Dispute" is defined in. (h) of section 2 of the Industrial Disputes Ordinance, 1959, which reads as follows:‑ "`Industrial dispute' means any dispute or difference between employers and employers, or between employers and workmen or between workmen and workmen which is connected with the employment or non‑employment or the terms of employment or with the conditions of work of any person." It is clear that under this definition, a Union could not be a party to an industrial dispute, unless by some provision of law, it is vested with a right to speak on behalf of workmen. It is only an "Industrial dispute" as thus defined, that could be referred under section 5 of this Ordinance, initially to a Conciliation Officer and, in case of failure of settlement in conciliation proceed ings, to an Industrial Court, under subsection (5) of section 5 thereof. This subsection declares that any party to whom a certificate has been issued, of failure of conciliation proceedings, may make an application to a Court, for adjudication and determination of an industrial dispute or any matter constituting such a dispute. Section 13 of this Ordinance declares that a settlement arrived at in the course of conciliation proceedings or an award given by the Industrial Court shall be binding, inter alia, on all parties to the industrial dispute. The question that calls for determination is whether the appellant was in law a party to the industrial dispute. The provisions of the Industrial Disputes Ordinance, 1959, have to be supplemented by reference to the Trade Unions Act, 1926. This Act provides for the registration and recognition of Trade Unions and defines their legal rights and liabilities. The recognition of Trade Unions is dealt with in Chapter I1I‑A of the Act which was inserted in the Act by section 12 of Ordinance XIV of 1960. Under section 28‑B of this Chapter, it is provided that an employer shall recognize a Trade Union, if it fulfils certain conditions, specified in subsection (1) thereof. One of these conditions is that it is a registered Trade Union and has complied with all the provisions of this Act. Subsection (2) of this section enacts that "where an employer has recognised a Trade Union under subsection (1), a memorandum of recognition signed by the employer and the President and the Secretary of the Trade Union or their authorised representatives, shall be presented to the Registrar who shall record the memorandum in a register in the prescribed manner." Section 28‑D of this Chapter provides that the executive of a recognised Trade Union shall be entitled to negotiate with the employer, in respect of the matters connected with the employment, unemployment, the terms of employment, and the conditions of work of any of its members. There are other provisions in this Chapter regarding the withdrawal of recognition of such a Union, but they need not be dilated upon, as it is clear that recognition was not accorded to the appellant‑Union under section 28‑B of this Act. The conditions of subsection (2) of section 22 of the Act have clearly not been satisfied in the case of this Union and the question of recognition under section 28‑B of the Act could not, therefore, arise. It is contended, however, that these provisions which came to be inserted in the Act by an amendment in 1960, did not govern the case of the appellant Union. The Union had undoubtedly been registered under section 8 of the Act and a certificate granted to it under section 9 thereof in 1949. The recognition of the Union is said to have taken place under section 3 of the East Pakistan Trade Unions (Recognition) (Third) Ordinance, 1958 (Ordinance No. LIX of 1958). Subsection (1) of this section is in the following terms :‑ "Where an employer agrees to recognise a registered Trade Union, a memorandum of agreement signed by the employer and the officers of the registered Trade Union or their authorised representatives, may be presented to the Registrar who shall, if he is satisfied, after making such enquiries as he thinks fit, that the registered Trade Union is representative of all workmen employed in the industry concerned, record the memorandum in a register in the prescribed manner." Subsection (2) of this section provides that "while such an agree ment is in force, the registered Trade Union shall, in its relation with the employer with whom the agreement has been made, have all the rights of a registered Trade Union recognised under the provisions of this Ordinance and shall for other purposes be deemed to be a registered Trade Union recognised under this Ordinance." One of the rights, vesting in a recognised registered Trade Union is mentioned in subsection (1) of section 5 of this Ordinance, viz. that the executive of a registered Trade Union recognised under the provision of this Ordinance, shall be entitled to negotiate with employers in respect of, inter alia the conditions of service of its members. In the present case, it is averred that, initially, there was an agreement of recognition between the Union and the respondent‑employers in 1951, when no legal provision existed for such a recognition. Again in 1958, there was a formal agreement of recognition arrived at between the appellant and the respondents. One such agreement has been brought on the record and appears at p. 26 of the record. Similar agreements were alleged to have taken place between the appellant and the other employers, vide the averment to that effect in its concise statement, at p. 8. These facts were apparently not controverted on behalf of the respondents. However it is admitted, on behalf of the appellant, that these agreements were not presented to the Registrar under section 3 of Ordinance LIX of 1958 and no memoranda were recorded in its register, concerning them. Secondly, subsection (4) of section 2 of this Ordinance provides that "the order, directing recognition of a registered Trade Union by an employer and the recognition of a registered Trade Union by the employer, by agreement under section 3, shall remain in force for a period of three years from the date of the order (of the Registrar) directing such recognition or the date of recording the memorandum of agreement under section 3, as the case may be, subject to such conditions as may be prescribed". Thus even if this agreement had been registered with the Registrar, it could only have enured for a period of three years, from the date of its execution in 1958. The period in question expired long before the present dispute was referred to the Industrial Court. Ordinance LIX of 1958, was repealed by East Pakistan Ordin ance XXIX of 1961, without a saving clause in favour of the existing agreement of recognition, But it is argued that this repeal did not affect the validity of the appellant's agreement with the employers, virtue of section S of the Provincial General Clauses Assuming this to be the correct position, the fact remains that the agreement itself bad expired by efflux of time, before the dispute was taken to the Industrial Court and the appellant had lost its representative capacity as a recognised registered Union. This was, in fact, the position adopted by the employers in this case as they pleaded that the agreement of recognition, if any, had lapsed. In order to acquire that status again, it had to obtain recognition under the Industrial Disputes Act, 1926, as amended in 1960. The position that emerges, therefore, is that even if then amended provisions of the Trade Unions Act, contained in Chapter III‑A cannot be invoked by the employers in this case, in view of the fact that the appellant‑Union was registered in 1949 and continued in existence ever since then, and its previous recognition by the employers under the East Pakistan Ordinance LIX of 1958 was not affected by the new law, than also, the duration of the agreement having expired, the appellant‑Union lost its capacity to represent the workers for the purposes of raising an industrial dispute. Its only right conceivable can be, as a registered Union, to represent a workman who may be a party to an industrial dispute, by virtue of section 34 of the Industrial Dispute Ordinance, 1959. But to attract that provision, a "dispute requires to have been raised by a workman himself and not by the Union on his behalf, as in the present case. Mr. Asir drew our attention to clause (d) of section 15 of the Trade Unions Act, 1926, which authorizes a registered Trade Union to spend its general funds, inter alia, on the conduct of industrial disputes, on behalf of the Trade Union, or any member thereof. This only means that if a Trade Union has the capacity to raise a dispute, it may expend its funds on pursuing it, but cannot lead to the inference that the Trade Union, by the mere fact of its being registered as such, acquires a right to raise a dispute. Learned counsel was unable to point out any provision of law under which an un-recognised Trade Union could have power to raise an industrial dispute on behalf of workmen. The upshot of the whole discussion is that the appellant‑Union having ceased to occupy the character of a recognised Union, had no locus standi, either to raise an industrial dispute, on behalf of its members, or to take it to the Industrial Court. In the face o this finding, the other points raised in the appeal, do not call for decision. The appellant's petition in the High Court was, therefore, rightly dismissed and we dismiss the appeal with costs. A. S. Appeal dismissed.