1971 PLP 182 (PLC)

"That on or about 5th June 1970, when the registration of the plaintiff-Union was pending with the Registrar of Trade Unions and the fact was well within the knowledge of the defendants, the defendants Nos. 1 and 2, entered into an agreement, which involves the interest' of all the workers of the Mills including the members of the plaintiff-Union; whereas the defendant No. 1, has no right under the law to represent the members of the plain tiff. Union in all matters including negotiations and settlement With the Management of defendant No.

2. Besides this 'one of the two Unions; I.e. plaintiff or defendant No. 1 has any right to negotiate and enter into agreements with the Management unless any of them is declared as Bargaining Agent by the Registrar of Trade Unions under section 22 of the Industrial Relations Ordinance, 1969. "

5. The appellant in the meantime made an application to the learned Civil Judge for a temporary injunction restraining the defendants from acting in pursuance of the agreement arrived at between them. The learned Civil Judge, after considering the arguments of the learned Advocates for the parties, came to the conclusion that the plaintiff the appellant before me, had failed to make out a case for inconvenience or irreparable injury to the workers. Relying on a Division Bench Ruling of Dacca High Court, AdamJee-Jute Mills Ltd. v. The Province of East Pakistan and others P L D 1959 Dacca 872 it held that "the Second Union could not be allowed to re-open the case. The award could be terminated only in accordance with law".

6. Mr. Mahmood A. Ghani, the learned Representative for respondent No. 2, raised a number of preliminary objections in respect of the maintainability of the appeal, namely: (1) That the appeal was, on the face of it, time-barred. The appeal should have been filed within 30 days of the delivery of the award under section 37(3) of the Ordinance. (2) That the Workers' Union being no party in the pro ceedings before the learned Court cannot be said to be an aggrieved party. (3) That the provisions of the Civil Procedure Code having been made applicable to the proceedings under the Industrial Relations Ordinance, 1969, the award being consent award could not be challenged by way of an appeal.

7. Mr. Khalid Jameel, who appeared for respondent No. 1, adopted the arguments of Mr. M. A. Ghani and elaborated the same in his own way.

8. It would not be necessary to go into the question as to workers whether the appeal could be, filed by the appellant or not, if Union hold that the appeal on the face of it was time-barred.

9. I would now proceed to consider the question as to whether the appeal is time-barred or not. Under section 37(3) Union of the Ordinance, "any party aggrieved by an award given Inamullah under subsection (1), may prefer an appeal to the Labour Khan. Appellate Tribunal within thirty days of the delivery thereof and the decision of the Tribunal in such appeal shall be final

10. The award was given on 5th June 1970, while the appeal was filed in Court on 4th September 1970. The appeal on the face of it is beyond time. The appellant, however, claims the appeal to be within time, on the ground as mentioned in paragraph ll of the Memorandum of Appeal, "that the cause of appeal arose to the appellant on 11-8-70, when they were declared as Bargaining Agent; hence the appeal is in time". In the application under section 5 of the Limitation Act, the same ground is stated in paragraph 1, which runs as under: "That the appellants were not appointed as Bargaining Agents till 11-8-70 and therefore they were not competent to file appeal till then. The cause of action to them for filing this appeal has arisen on 11-8-70."

11. The first question is as to whether under the circum stances mentioned by the appellant, the appeal could be said to be within time. As the provision of law stands today, the appeal had to be filed within 30 days of the delivery of the award. The appellant, therefore, cannot claim to condone the delay in filing the appeal on the ground that they had no cause of action up to 11th August 1970. Under subsection (1) of section 22 of the Ordinance, "where there is only one registered Trade Union in as establishment or industrial unit, or only one federation in the whole industry in a Province, such registered Trade Union or federation shall be deemed to be the Collective Bargaining Agent for such establishment or industrial unit, o: for such whole industry as the case may be." Admittedly, the Workers' Union was not registered till 8th June 1970. The award was made on 5th June 1970. Therefore, for ail intent and purposes of the Ordinance, respondent No. 1, was the Collective Bargaining Agent and the action taken by it, could be legal and competent under the Ordinance. It is only after the appellant was declared as Collective Bargaining Agent that it could have a right to take action under the Ordinance. It was submitted by Mr. Ghani and Mr. Khalid Jameel, the learned Representatives for the respondents that the proper remedy for the appellant was, if any, to proceed under section 40 of the Ordinance for curtailing the period for which the award was effective. The Court could, if the appellant was able to make out a. case for curtailment of the period for which the award was effective, reduce the same. Mr. Anees Ahmad, the learned Advocate for the aslant, submitted, relying on a Division Bench Ruling of tap Lahore High Court, Syed.1ahmud Alam v. Syed Mehdi Hussain and 2 others that the award being a nullity,. the appellant could challenge the same even beyond the period of limitation prescribed for filing an appeal. I have gone through the judgment of the High Court carefully. In that case a reference was made by the learned Single Judge as to whether or not section 5 of the Limitation Act was applicable to appals under section 11 of the Displaced Persons (Land Settlement) Act, 1958. .The learned Judges, however, in the context of the facts which were placed before them raised three subsidiary questions, namely:- (1) What is the effect on the question of limitation, if the order under appeal is a nullity as being without jurisdiction or is tainted with fraud? (2) What is the effect of an order, for the purpose of limitation in appeal, when the same was not passed in presence of the aggrieved person and he had no notice of -the same? (3) In case the appeal is time-barred, whether the revisional authority has any power to interfere in the same matter, despite the fact that the appeal before the lower forum was barred by limitation?

13. The Division Bench in an elaborate order, if I may say so with respect, came to the conclusion that no question of limitation could be involves the order appealed against is tainted with fraud or pass without the knowledge to the affected party or is otherwise a nullity. The Division Bench also came to the conclusion that section 5 of the Limitation Act is not of general application to all the enactments, but can be made applicable by the provision of the enactment. In the light of the observation made by their Lordships of the Division Bench, I would now proceed to consider whether the order appealed against conforms to any of the ingredients laid down by the learned Judges of the Court, so as to avoid the limitation period provided under section 37(3) of the Ordinance. Mr. A Anees Ahmad, the learned Advocate for the appellant, contended that the order was a nullity; inasmuch as, the Court had no jurisdiction to hold beyond the demand raised by respondent No.

1. The respondent No. 1 raised 10 demands in all. Mr. Anees Ahmad submitted that the award as to the undertaking of the Union (respondent No. 1 before me) that it would not raise soy further demand involving financial implications during the period of operation of this settlement was beyond the competence and jurisdiction of the learned Court. The Court, it was submitted, should not have given an award in respect of the undertaking given by respondent No.

1. The undertaking, as stated in the settlement dated 5th June 19,7Q, runs as under: "The Union undertakes not to raise any further demand involving financial implication on the Management during the period of operation of this settlement." 14) Mr. Anees Ahwad, the learned Advocate for the appellant, candidly conceded that such a settlement could be arrived at between the workers and the Management. His contention, however, is that the Court acted beyond its jurisdiction in giving an award in. respect of the undertaking given by the respondent-Union. The short question, therefore, is as to whether the Court has acted without jurisdiction in giving effect to the undertaking given by the Union. In the first place, it cannot be said that the Court had given an award beyond the demand raised by the Union before the Conciliation Order. The Union had raised, as already mentioned, 10 demands. It would appear from the settlement arrived at between the Employees' Union and the Management that some of the demands were conceded, while others were given up by the Union. The undertaking not to raise any demand, which may have financial implication, could not form part of the demands raised by the Union. There is a clear distinction between demand and an undertaking given by a party, so as not to do something for a certain period. The undertaking is a concession by the Union and not a demand. The under taken given by the Union is only subsidiary or ancillary to the settlement arrived at between the parties. The Union gave the undertaken in return to the acceptance of some of its demands by the Management. The idea underlying all the settlements between the workers and the Management is that a lasting peace tray be achieved for the benefit of both, the Management and the workers. If in spite of the settlement between the parties, the workers could raise a dispute every day the very object of the settlement is frustrated. In these circumstances, it cannot be said that the undertaking given by the workers and accepted by the -Court, specially in view of the fact that Mr. F. A. Khan, who had earlier represented the Union, also thought the settlement to be a fair one, I would hold that the Court did not act beyond the industrial disputes raised by the Union in given effect to the undertaking given by it.

15. This is not one of those cases in which the appellant can be said not to have the knowledge of the award given by the Court. The admitted position is, as would appear from the plaint filed by the appellant before the civil Court, that it was aware of the proceedings before the Industrial Court-and had knowledge when the Court gave the award. The award also cannot be said to be a nullity because at the time when the dispute was raised there was no other Collective Bargaining Agent within the meaning of section 22, of the Ordinance, except the respondent No. 1 (H. M. Silk Mills Employees' Union). The Court, on the face of it, had jurisdiction to give an award. It cannot, therefore, be said to be a nullity. In these circumstances, I would bold that the appeal is beyond time and is accordingly dismissed