P L D 1969 Karachi 146 (PLP)

The award was published on the 19th of January 1965.

3. The Union renewed its demands by giving another strike notice dated the 20th of February 1965, and conciliation proceedings once again failed. A Failure Certificate was issued by the Conciliation Officer on the 8th of March 1965. The Union thereafter, submitted an application under section 5 (5) of the Industrial Disputes Ordinance, 1959.

4. The above application was resisted on behalf of respondent No. 1, namely, Pakistan Tobacco Co. Ltd., according to Mr. Mansoor Alam, on two grounds. One of the objections was that the demands which were pressed by making the second application under section 5 (5) of the Industrial Disputes Ordinance, 1959, had been settled or concluded by the previous award which was published on the 19th of January 1965; therefore, they could not be re‑agitated in view of sections 13 and 14 of the Industrial Disputes Ordinance, 1959. The other was that the application was barred by Order XXIII, rule 1, C. P. C. These preliminary objections were examined by the Industrial Court which came to the following conclusion: "I am, therefore, of the view that on account of the failure of the Union to submit a proper application under section 5(5) of the Ordinance, within two months of 27th May 1964, (the date on which the Failure Certificate was issued), the dispute ceased to exist between the parties. The Union could not, therefore, in the presence of this clear mandatory provision of law revive their old dispute. The subsequent strike notice, in the absence of any new dispute, followed by the conciliation proceedings and the issuance of a Failure Certificate by the Conciliation Officer are of no sequence in the eye of law. The present application of the Union under section 5 (5) of the Industrial Disputes Ordinance, 1959, is obviously with a view to harass the Management. I have, therefore, no hesitation in holding that the matters which are the basis of this application are frivolous and vexatious." The last sentence concerning the merits of the case deserves to be disregarded. The view that no dispute existed between the parties, owing to the failure of the Union, to submit a proper application under section 5 (5) of the Ordinance, within two months from the 27th of May 1964, is founded on rule 9 of the Industrial Disputes (Central) Ordinance, 1960. That rule is as follows:‑ "An application under subsection (5) of section 5 (of the Ordinance) for the adjudication and determination of an industrial dispute shall be in Form D and shall be made within two months of the issue of the certificate under subsection (4) of that section and if no such application is made within the said period it shall be deemed as if the dispute does not exist. (2) After receiving such an application from any party, the Court shall summon the other party or parties to the dispute, as the case may be."

5. Mr. Mansoor Alam has explained that the above rule has been applied by the Industrial Court in view of the failure of the Union to submit a proper application under section 5 (5) of the Industrial Disputes Ordinance, 1959, within two months of the issuance of the Failure Certificate by the Conciliation Officer on the 27th of May 1?

64. The application, was held by the Industrial Court in the award, which was published on the 19th of January 1965, to have been improperly presented in terms of section 26 and Order III, rule 1 and Order IV, rule 1, C. P. C., with the result that, according to the Court, no proceedings had validly commenced. The final conclusion of the Court, therefore, was that "the dispute be deemed not to have existed".

6. The above‑mentioned two objections have been examined by the Industrial Court in second award and its decision is now the subject‑matter of this appeal. It has beer criticised on behalf of the Union as not valid in law.

7. Mr. Mansoor Alam has stated that the Industrial Court has rejected the objection which was founded on Order XXIII, rule 1, C. P. C. and that he does not desire to press it any more. The consequence, therefore, is that the first objection, as explained above and looked at from the point of view sections 13 and 14 of the Industrial Disputes Ordinance, 1959, is to be examined.

8. Before examining it, I should refer to the observations of the Industrial Court by which it has rejected the objection under Order XXIII, rule 1, C. P. C. They are relevant and run as follows: "In this case, as will be seen no such point (of Order XXIII, rule 1, C. P. C.) is involved. The previous application of the Union was dismissed not because it was withdrawn by the Union nor it was decided on merits. The record shows (and there is no dispute between the parties about this fact) that, that application was presented in Court by a practising lawyer, hence an unauthorised person, on the last but one day of the period of limitation. On the objection of the Management, the Court held that, that application under section 5 (5) of the Ordinance was not properly presented in Court and the proceedings were not instituted in accordance with law with the result that it would be treated as if no application under section 5 (5) of the Ordinance, had been presented. The learned Chairman of that Court dismissed that application on that ground. In my opinion, the rejection of that application on the ground stated in the award would have been more proper than its dismissal. Any way, that decision is presently not in question. All that we are instantly concerned with is as to what is the effect of the result of that case on the present proceedings." The words "nor it was decided on merits"; "it would be treated as if no application under section 5 (5) of the Ordinance had been presented" and "the rejection of that application . . . . . would have been more proper than its dismissal" should be noted. They show that no settlement had been arrived at and no award was given on merits. They also show that the previous application is to be disregarded as if it had never been made, and that the application was rejected rather than dismissed.

9. Now, proceeding to examine the first contention in the light of the above observations, it would appear that according to the Industrial Court no application in law should be deemed to have been made under section 5 (5) of the Industrial Disputes Ordinance, 1959, at the previous occasion, and that no decision was made either on merits or to settle any dispute. A reference to the previous award makes the situation still more significant because, according to it, no dispute could be deemed to have existed at the time when the award was made and published on the 19th of January 1965.

10. It follows from the above discussion that the Industrial Court is not right in saying now that, any dispute existed formerly and is sought by the Union (i.e. the present appellant) to be revived. A reference to the previous award, which was published on the 19th of January 1965, and its appreciation in the present award, shows that all that had happened at the time of previous award is simply to be written off as of no consequence. I do not say, that I agree with this view because it is unnecessary to do so; but this is what was partly held by the Industrial Court at the time of the previous award and this is what has been partly held by the Industrial Court in the award which is under appeal now and to which no objection has been taken by Mr. Mansoor Alam.

11. Proceeding further to examine the applicability of sections 13 and 14 of the Industrial Disputes Ordinance, 1959, I may point out that Mr. Mansoor Alam urged that the previous award is binding in terms of section 13 for the period of time that is mentioned in section 14 of the Ordinance. The previous award is no doubt binding, but it is binding on both parties, which means that respondent No. 1 cannot now take the stand that any dispute existed when it was published. Mr. Mansoor Alam tried to use section 14 by saying that in terms of sub section (3) of that section, an award remains in operation for one year, but here also the language of the subsection does not appear to be on his side. The relevant part of the subsection is as follows:‑ "An award published under subsection (2) of subsection (2‑B) of section 12 shall come into operation on such date and remain in operation for such period, not exceeding one year, as may be specified in the award." Counsel said that the previous award continues to be in operation even now but this is obviously incorrect because no time was specified in that award during which it was to remain in operation. As I understand the language of the above provision, it means that the period during which the award is to remain in operation, can be specified in it provided that such a period cannot exceed one year. To my mind, in this case the Industrial Court could not prescribe any period of time because, according to it, no proceedings had commenced and no dispute existed by virtue of the award itself. However, that may be, it is obvious that a negative award of the nature, which was published on the 19th of January 1965, cannot be A utilized for advancing an argument that the disputes which were held to be non‑existing are reagitated now.

12. Before parting with this case, I should add that a dispute which is not resolved by conciliation cannot be referred to the Industrial Court after two months of the issuance of a certificate of failure in terms of rule 9 of the Industrial Disputes (Central) Rules, 1960, which has been quoted above. According to it, if no application is made within that period, the dispute should be deemed to have ceased to exist. In this case the second certificate was issued on the 8th of March 1965, and an application under section 5 (5) of the Industrial Disputes Ordinance, 1959, was presented within two months of it. Thus the terms of rule 9 of the Industrial Disputes (Central) Rules, 1960, have been satisfied, but Mr. Mansoor Alam took the stand that the previous certificate dated the 27th of May 1964, should be taken into consideration and not the later one dated the 8th of March 1965. The reason being, according to him, that the demands of the Union remain the same. No qualification of a certificate is mentioned in rule 9 of the Industrial Disputes (Central) Rules, 1960. All that is required B is that it should be a certificate under subsection (4) of section 5 of the Industrial Disputes Ordinance, 1959; therefore it is} wrong to read a condition in it which it does not contain. Additionally, it should be noted that the decision of the Industrial Court in the previous award having been that no disputes could be deemed to have existed, it is contrary to that award to urge now that disputes existed and are being reagitated at present.

13. In conclusion of the above discussion, the appeal is accepted and the award of the Industrial Court dated the 21st of September 1965, and published in the Gazette of West Pakistan Extraordinary of October 26, 1965, is set aside. The application of the Union is now to be examined by the Industrial Court in respect of the contentions and pleas other than those on which it was dismissed by the award which is now under appeal. I may add here that there is no restriction on the parties against raising any question of law or fact which was not raised before the Industrial Court, or against validly. raising a previous objection in respect of the merits of the case excepting a plea under Order XXIII, C. P. C. which has been expressly given up by Mr. Mansoor Alam in these proceedings.

14. Mr. Mansoor Alam desires that I should add by way of clarification that there were two demands of the Union before the Conciliation Officer out of which one has been settled, therefore, one only with respect to the re‑instatement of Boxer‑Off Shakil Ahmed is outstanding. Mr. Nayab Hussain Naqvi concedes this to be correct. No order as to costs. A. B. Appeal accepted.