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Appeal No. KAR.‑155 of 1969, decided on 19th May 1969.

---S. 5(S) Industrial dispute‑To be determined with reference to date on which right which is subject‑matter of dispute arises‑Subsequent ceasing of function by Mills‑Does not render an industrial dispute in fructuous.

The industrial dispute must be determined with reference not from the date when the factory ceased to operate its function, but to the date on which the right, which is the subject‑matter of the dispute, arises.

---S. 16‑Appeal‑New point depending upon facts‑Not allowed in appeal.

A. Majeed for Appellant.

Ghulam Murtaza for Respondent.

Date of hearing: 16th May 1969.

This is an appeal under section 16, of the West Pakistan Industrial Disputes Ordinance, 1968, (hereinafter called the Ordinance), against an award, dated 20th February 1969. The impugned order was passed by the First West Pakistan Industrial Court, Karachi. The facts giving rise to the appeal briefly put are these.

2. The Secretary, India Flour Mills Workers' Union served a strike notice on the Management on 7th March 190, in respect of certain demands. The India Flour Mills is a non‑public utility service. On receipt of the strike notice, the Conciliation Officer started conciliation proceedings, which ended in failure on 19th April 1968. On the strength of the Failure Certificate, the General Secretary of the India Flour Mills Workers' Union brought an Industrial Dispute No. 7 of 1968, under section 5(5) of the Industrial Disputes Ordinance, 1959 (hereinafter called the repealed Ordinance), for the adjudication and determination of the demands.

A preliminary objection was taken by the Management under section 11(2) of the Ordinance, on the ground that the Failure Certificate dated 19th April 1968, was null and void. It was dismissed by the learned Industrial Court. It was directed that the case be heard on merits. On l1th December 1968, however, the Management again made an application that the industrial dispute had become in fructuous in view of the fact that the mills had been closed with effect from 27th June 1968., The learned Chairman of the Industrial Court accepted the contents of the application and held as under

"Since the mills have been indefinitely closed with effect from 27th of June 1968, and since the mills is under the attachment of the Food Department of the Government of West Pakistan which may be auctioned at any time, the industrial dispute brought by the present Petitioner has become in fructuous. The dispute is hereby dismissed. In case the mills re‑start functioning, the petitioner can bring another industrial dispute for the vindication of their rights."

4. Mr. Majeed, the learned Representative for the Appellant contended that even if the mills has ceased to operate its function with effect from 27th June 1968, some of the demands of the Union, if accepted, would have conferred certain benefits on the workmen. There is much force in this contention. The admitted position is that the Management closed the mills with effect from 27th June, 1968, under the orders of the Food Department. The industrial dispute must be determined wit reference not from the date when the factory ceased to operate its function, but to the date on which the right which is the subject‑matter of the dispute, arises. The learned Industrial Court should not have dismissed the industrial dispute merely on the ground that the mills had ceased to function with effect from 27th June 1968. The Industrial Court should have considered the question as to whether if any of the demands if were accepted would confer any benefit on the workmen prior to the date of 27th June 1968. If the answer was in the affirmative, the Court should have considered the demand and given its finding thereon. The Court has failed to do so in the instant case.

5. Mr. Ghulam Murtaza, the learned Representative for respondent Mills contended that there was no industrial dispute so as to confer jurisdiction on the Industrial Court under section 5(5) of the repealed Ordinance. This is beside the point for determination of the present appeal. The learned Industrial Court disposed of the application, dated 11th December 1968, by the impugned order. The said applica tion was confined to the question that the industrial dispute had become in fructuous, as the factory has closed. The applica tion runs as under: ‑

"It is most respectfully submitted on behalf of the res pondent that the Industrial Dispute mentioned above has become in fructuous in view of the facts disclosed in the accompanying affidavit."

6. In the affidavit, which is in four paragraphs, paragraph 1, describes the position of the deponent, while paragraphs 2, 3 and 4, state that under the order of the Food Department, the Mill had been closed and that the financial position of the Mill was very weak. The application had proceeded on the assumption that there was an industrial dispute. It will be unfair to permit the respondent to take up new point in appeal, which depends on facts as well. It was, however, open to the respondent to take up this point before the industrial Court.

7. I would hold that the industrial dispute should not have been dismissed on the mere ground that the mill had ceased to function from 27th June 1568. The liability of the mill was rightly contended prior to 27th June 1968, in respect of the workmen, if any, would not come to an end if the Mill ceased to operate from 27th June 1568. The impugned order, dated 2,Oth February 1968, is set aside.

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