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Petition No. 200 of 1963, decided on 2nd August 1963.

S. 10 (1)(a)(aa) read with Ss. 2 (b) do 12 (S) and with Art. 98 (2), Constitution of Pakistan, (1962)‑Dispute raised by party having no right to raise such dispute‑Decision of Industrial Court disposing of preliminary objection as to locus stand of party raising dispute, covered by S. 10(1)(a), (aa), and being an "award" within meaning of S. 2 (b) is appeal-able under S. 12 (4)‑Petition under Art. 98 (2), Constitution of Pakistan (1962), challenging decision of Industrial Court, without resorting to remedy by appeal, held, not maintainable in High Court.

Held, that a preliminary point raised by the employers before the Industrial Court that the Union raising the dispute was not legally constituted and so had no locus stand before the Industrial Court, clearly comes within the scope of clause (a) of sub section (1) of section 10 of the Industrial Disputes Ordinance, 1959. An industrial dispute raised at the instance of party which has no right to raise such a dispute, falls within the category of frivolous or vexatious disputes. The Court, therefore, had juris diction to decide the question.

Further, as "any matter" has been made referable to any industrial Court the decisions of the Industrial Court under both ‑the clauses (a) and (aa) are awards within the meaning of section 2 (b) of the Ordinance.

The mere fact that the Court had described it as a decision and not as an award does not affect the position. The petition under Art. 98 (2), Constitution of Pakistan (1962), therefore, was not maintainable, having been made without availing remedy by appeal provided by section 12 (5) of the Industrial Disputes Ordinance, 1959.

Petition No. 309 of 1962 (unreported) rel.

Not ultra vires the President‑Constitution of Pakistan (1962), Art. 32 read with Third Sched., Arts. 131 (2) and 224.

S. 22 (2) read with S. 13‑"Industry"‑Means industry carried on by the employer or similar industries‑‑Section 13 only declares a registered Union to be a juristic person; it does not impart a representative character to the Union for purposes of adjudication of an industrial dispute.

The word "Industry" in relation to the employer with whom the industrial dispute is raised must mean the industry carried on by that employer. The Trade Unions Act, 1926 is designed to allow employees to form unions which on compliance with certain conditions receive recognition and are allowed to register them selves under the said Act. These Unions are supposed to represent their members for the purpose of collective bargaining with the employers in regard to their service conditions. The calling of the employees by itself without reference to the employers is not sufficient for the purpose of the qualifications of the officers under section 22(2) of the Trade Unions Act. The Industrial Disputes Ordinance and the Trade Unions Act must be read together so as to determine as to whether a particular Union represents workmen of a particular industry for the purpose of raising an industrial dispute. The term "Industry" cannot be understood only with reference to the calling of the employees. There cannot be a clerks' industry or a supervisor's industry though there can be textile industry, jute industry, etc. and as such workers of industries falling within each of these categories can form Unions for the purpose of Trade Unions Act and the Industrial Disputes Ordinance.

Section 13 of the Act has no bearing on the question of representative capacity of a Trade Union for the purpose of adjudication of any industrial dispute under the Ordinance. It gives a registered Trade Union the status of a juristic person and nothing more than that. Before an industrial dispute is raised by a Union, compliance with section 22 (2) of the Trade Unions Act is necessary so that the award given by the Court may be binding on the workers whom the Union seeks to represent. The determination of an industrial dispute at the instance of an unrepresentative body cannot bind persons on whose behalf the dispute is raised.

Ss. 7, 8 & 9‑Mere absence of a Member, without proof of prejudice or protest by a party does not vitiate proceedings of Court or render them of no legal effect‑East Pakistan Industrial Disputes Rules, rr. 30 & 34.

Mozammel Huq for Petitioners.

K. M. Subhan for Respondent No. 1.

M. J. Jaffer, S. M. Husain and A. M. Rashiduzzanan for Respondents 2 to 7.

Dates of hearing: 27th and 28th June and 1st July 1963.

This is an application under Article 98(2) of (h0 Constitution calling in question an order passed by the Industrial Court of East Pakistan. The petitioner, the Chittagong Mercantile Employees' Association, a Trade Union registered under the Trade Unions Act, 1926, claiming to represent the employees of respondent Nos. 2 to 7 submitted on 5‑1‑1962 a charter of demands in respect of certain aspects of service conditions of their workers. Direct negotiation having failed the petitioner approached the Conciliation Officer in accordance with the provisions of rule 24 of the East Pakistan Industrial Disputes Rules, 1960. As conciliation also did not succeed the Conciliation Officer granted a Certificate of Failure to the petitioner in respect of each of the respondent Nos. 2 to 7 under section 5 (4) of the Industrial Disputes Ordinance, 1959. The petitioner then filed 6 cases, namely, Industrial Disputes Cases Nos. 80 to 85 of 1962 in the Industrial Court of East Pakistan composed of the respondent No. 1, the Chairman and two Members. The respondents Nos. 2 to 7 filed written statements and submitted, inter alia, that the cases were not maintainable at the instance of the petitioner union as it was not legally constituted.

All the 6 cases were heard analogously and at the hearing the respondent Nos. 2 to 7 took the preliminary objection that the petitioner had no right to file the cases as the Union was not constituted in accordance with the provisions of sections 22(2) and 28‑B of the Trade Unions Act, 1926 inasmuch as more than 25 per cent of the total number of the officers were elected from persons who were not actually employed or engaged in the industry in which each of the companies was engaged and that the majority of the members of the Union were not employees of the respondent Nos. 2 to 7.

The preliminary objection was accepted and the applications of the petitioner Union were rejected by the Chairman and Mr. Nasirul Huq, the Member representing the employers with Mr. A. Kader, the Member representing the employees dissenting. It is thereafter that the petitioner moved this Court and obtained the present Rule on the respondents to show cause why the impugned order should not be declared to have been passed without lawful authority and as such of no legal effect.

We have set out above the undisputed facts and feel that it is not necessary to state in details the averments of the parties in the application and the affidavits‑in‑opposition in view of the points raised before us. We, shall, however, refer to some relevant assertions of the parties as and when necessary.

Mr. Mozammel Huq has appeared for the petitioner, Mr. K. M. Subhan for the respondent No. 1 and Mr. M. J. Jaffer for respondent Nos. 2 to 7. Mr. K. M. Subhan and Mr. M. J. Jaffer have taken a preliminary objection as to the maintainability of the present application. It has been pointed out that the order of the Industrial Court is an award within the meaning of the Industrial Disputes Ordinance, 1959 and as such the petitioner had an adequate alternative remedy by way of appeal under section 12(4) of the Industrial Disputes Ordinance which was introduced on 29‑10‑1962 Ordinance LXXIX of 1962 and as the petitioner has failed to avail of the same, it cannot maintain an application under Article 98(2) of the Constitution which permits the High Court to entertain an application only if it is satisfied that no other adequate remedy was provided by law, We have already held in Petition No. 309 of 1962 that no application challenging an award given by an Industrial Court lies under Article 98(2) of the Constitution as there is an adequate remedy provided by way of appeal in section 12(4) of the Industrial Disputes Ordinance. Mr. Mozammel Huq does not dispute this proposition but contends that in these cases no awards were, given and that the Court had no jurisdiction to go into the question raised by the respondent Nos. 2 to 7.

Under section 2(b) of the Industrial Disputes Ordinance, 1959 (hereinafter called the Ordinance) "award" means the determination by an Industrial Court of any industrial dispute or any matter relating thereto and includes an interim award. While the learned Advocates for the respondents have urged that "any matter relating thereto" is wide enough to cover the present case, Mr. Huq's contention is that "any matter relating to" an industrial dispute means nothing more than one of the items of dispute which all together go to constitute an industrial dispute within the meaning of the Ordinance. Our attention has been drawn in this connection to section 2(h) of the Ordinance which defines industrial dispute as any dispute or difference between the employers and employers or between the employers and workmen, or between workmen and workmen which is connected with the employment or non‑employment of or the terms of employment or with the conditions of work of any person. According to Mr. Huq any matter relating to an industrial dispute cannot mean the locus stand of a party, and therefore, a decision thereon is not award. It has then been said that by the first two clauses of subsection (1) of section 10 of the Ordinance, the Court is empowered to give two kinds of decision, namely, a summary decision before proceeding with adjudication and a final decision determining an industrial dispute. It is contended that only the latter kind of decision is award within the meaning of the Ordinance. In the present case the Industrial Court has proceeded on the basis that it had power to decide the point in question under clause (a) of subsection (1) of section 10 which reads as follows: --‑

"before proceeding with the adjudication and determination of the industrial dispute in respect of which an application has been made under subsection (5) of section 5, determine in a summary way the question, if raised by any party to the dispute other than the appropriate Government, that all or any of the matters constituting such dispute is frivolous or vexatious".

Mr. Huq submits that the present decision of the Court does not come within the purview of the above clause, and therefore, as by no manner of means the decision comes within the second clause which relates to final adjudication of an industrial dispute, there could be no appeal against such a decision. We are unable to accept this contention. In our view the point raised by the respondents clearly comes within the scope of clause (a) of sub section (1) of section 10 of the Ordinance. An industrial dispute raised at the instance of party which has no right to raise such al dispute, falls within the category of frivolous or vexatiou disputes. The Court therefore, had jurisdiction to decide the question.

Mr. Huq has lastly argued in this connection that any matter relating thereto in section 2(b) of the Ordinance must be inter preted by the application of the principle of ejusdem generis. There is no necessity for applying the said principle in the present case as any matter has been made referable to any Industrial Court: If it were not so done, then of course it could be argued that such matter must relate to an industrial dispute. The decisions of the Industrial Court under both the clauses (a) and (aa) are awards within the meaning of section 2(b) of the Ordinance.

Before we conclude we may take note of another point raised by Mr. Huq. It has been said that the Ordinance LXXIX of 1962 by which an appeal to the High Court against an award has been provided for is ultra vires the President as the subject of legisla tion is Provincial under Article 32 read with the Third Schedule of the Constitution. Mr. Huq's contention is that the President could not promulgate this Ordinance and the Central Legislature had no power to approve it. Mr. Jaffer has drawn our attention to the preamble of the Ordinance which, inter alia, states that the Ordinance was promulgated by the President as "the national interest of Pakistan in relation to the achievement of unanimity within the meaning of clause (2) of Article 131 of the Constitution requires central legislation in the matter." Article 131(2) of the Constitution provides that the Central Legislature shall have D exclusive power to make laws including laws having extra territorial operation for the whole or any part of Pakistan with respect to any matter enumerated in the Third Schedule where the national interest of Pakistan to the achievement of unanimity in respect of any matter in different parts of Pakistan so requires. It is, therefore, futile to argue that the Ordinance is ultra vires the President. Moreover in view of Article 133(2) read with the definition of Legislature in Article 224 the question cannot be raised before us. It follows from what we have said above that the decision of the Industrial Court in this case amounted to an award and an appeal lay against it. The mere fact that the Court has described it as a decision and not as an award does not affect the position. This petition, therefore, is not maintainable.

On the view we have taken on the preliminary point it was not necessary to go into the merits of the application, but as elaborate arguments have been advanced in this regard and for the sake of completeness we have felt it desirable to determine them also.

Mr. Huq has contended that the decision of the Court that the petitioner Union had no locus stand to represent employees of respondent Nos. 2 to 7 is wrong. The Court has found that the petitioner Union was not constituted in accordance with the provisions of section 22(2) of the Trade Unions Act, 1926. This section runs as follows: --‑

"A registered Trade Union shall not elect more than twenty‑,five per cent 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 proviso to this subsection is not important for our purpose. The learned Advocate for the petitioner has in course of his argument submitted that the question of the composition should have been decided after taking evidence, but we find that there is nothing before us to show that the finding of fact in this regard has been challenged in the petition. The main controversies before us have been (a) what is the exact import of section 22(2) and (b) whether a recognised Trade Union even if not constituted in accordance with the provisions of section 22(2) of the Trade Unions Act can raise an Industrial Dispute, obtain a Certificate of Failure of conciliation from the Conciliation Officer, and file an application before the Industrial Court.

The petitioner Union claims to represent the workers and employees not only of respondent Nos. 2 to 7 but various other firms and companies. The respondents raised the objection that as these different concerns were connected with different types of business and industries a Union whose members were drawn from such different kinds of business and industrial concerns cannot be said to have been constituted in accordance with the provisions of section 22(2) of the Trade Unions Act in relation to each such concern. On behalf of the petitioner it is submitted that the word "industry" used in section 22(2) of the Act, must be understood with reference to its definition in section 2 (e) of the Trade Unions Act which says that industry means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial or agricultural occupation or avocation of workmen. According to the learned Advocate for the petitioner as the Union represents workmen employed in or engaged in the same or similar calling or occupations, the requirements of section 22(2) have been satisfied. Mr. Jaffer on the other hand .has pointed out that in order to satisfy the requirements of section 22(2) it is necessary that at least 75 per cent of the officers must be persons who are employed in a particular industry or at least similar industries and the mere calling of the employees without reference to the employers cannot be the determining factor. The Industrial Court in upholding the contention of Mr. Jaffer which was also put forward before it has relied upon the decision of the Central Industrial Court of Pakistan in the case of Karachi Trade Union of General Workers v. Messrs James Finlay & Co. Ltd. (1962 P L C 1002). On hearing Mr. Mozammel Huq's elaborate arguments we have found no reason to take a different view from the one taken in this case. It has been held that the word Industry in relation to the employer with whom the industrial dispute is raised must mean the industry carried on by that employer. The Trade Unions Act is designed to allow employees to form Unions which on compliance with certain conditions receive recognition and are allowed to register themselves under the said Act. These Unions are supposed to represent their members for the purpose of collective bargaining with the employers in regard to their service conditions. We, therefore, cannot accept by the argument of Mr. Huq that the calling of the employees by itself without reference to the employers is sufficient for the purpose of the qualification of the officers under section 22(2) of the Trade Unions Act. The Industrial Disputes Ordinance and the Trade Unions Act must be read together so as to determine as to whether a particular Union represents workmen of a particular industry for the purpose of raising an industrial dispute. The term Industry cannot be understood only with reference to the calling of the employees. There cannot be a clerks industry or a supervisors industry though there can be textile industry, jute industry, etc., and as such workers of industries falling within each of these categories can form Unions for the purpose of Trade Unions Act and the Industrial Disputes Ordinance.

Mr. Mozammel Huq's alternative argument in this con nection is that since the petitioner Union is a registered Union and its registration has not been cancelled in accordance with the provisions of the Trade Unions Act, it was entitled to maintain the proceedings before the Industrial Court in view of section 13 of the said Act. Section 13 lays down that every registered Trade Union shall be a body corporate by the name under which it is registered, and shall have perpetual succession and a common seal with power to acquire and hold both moveable and immoveable property and to contract, and shall by the said name sue and be sued. This section in our view has no bearing on the question of representative capacity of a Trade Union for th purpose of adjudication of any industrial dispute under the Ordinance. It gives a registered Trade Union the status of a juristic person and nothing more than that. Before an industrially dispute is raised by a Union, compliance with section 22(2) of the Trade Unions Act is necessary so that the award given by the Court may be binding on the workers whom the Union seeks to represent. The determination of an industrial dispute at the instance of an unrepresentative body cannot bind persons on whose behalf the dispute is raised.

Mr. Huq has lastly urged that as the proceedings before the Industrial Court were carried on in violation of section 7 of the Ordinance, the order passed by it is unsustainable. It has been asserted in the application that as the hearing of the cases took place on the 10th July 1963, wholly and on the 11th July 1963 partially in the absence of Mr. Nasirul Huq, the Member representing the employers the decision cannot be upheld. The fact that Mr. Nasirul Huq was absent wholly on 10‑1‑1963 and partially on 11‑1‑1963 when these cases were heard is not disputed. Can it be said, therefore, that the decision is void Subsection (2) of section 7 of the Ordinance provides :‑

"An Industrial Court shall consist of a Chairman and two members to advise the Chairman, one of the members to represent the employers and the other to represent the workmen, all being appointed by the appropriate Government".

Section 8 of the Ordinance provides for resignation, removal and disqualification of members. It says that a member may resign his office by a letter addressed to the Chairman and shall be deemed to have vacated his office if he is absent for period of more than one month from the sittings of the Courts without leave of absence from the Chairman. The other provisions of the section are not necessary for our purpose. Section 8, therefore, indicates that sittings of the Court can take place even in the absence of a Member. Rule 30 of the East Pakistan Industrial Disputes Rules framed under the Industrial Disputes Ordinance provides for leave of absence of a member. It says that application for leave of absence of a Member shall be addressed to the Chairman, who may grant the leave at his discretion. Section 9 of the Ordinance which deals with filling of casual vacancy does not cover such a case. On an examination of the relevant provisions in the Ordinance and the Industrial Disputes Rules, we do not find that on account of mere absence of a Member of the Industrial Court on any particular date no proceedings can take place before that Court. If rule 34 is read carefully it will be found that the importance of the Members comes into play when an award has to be given. This Rule provides that while giving an award or a decision the Chairman shall consider the advice given to him by the members of the Court although he may not be bound to accept the advice either in full or part. Such advice may be given orally during day to day hearing of a case and finally it shall be in writing signed and dated by the Members concerned either jointly or separately after the close of the hearing of a dispute. The written advice so given shall form part of the record. The present Ordinance has in our view departed from the previous laws in this respect inasmuch as it has provided for representation of both the employers and employees in the Court and they are supposed to place before the Chairman their view points with regard to particular disputes. In the present case the absence complained was of Mr. Nasirul Huq who represented the employers. The award of the Court shows that both the members were consulted and whereas Mr. Nasirul Haq agreed with the Chairman, Mr. Abdul Kader representing the employees, disagreed. No complaint was made before the Court, in this respect either by the petitioner or the member concerned. The petitioner has not made out any case of prejudice also. We are, therefore, unable to hold that the absence of M. Nasirul Huq on the 10th and 11th of January 1963 has vitiated the whole proceedings before the Court or that the decision of the Court has no legal effect.

We, therefore, discharge the Rule but direct the parties to bear their own costs.

Before parting with this case we may place on record our deep appreciation of the arguments advanced by the learned Advocates for the parties. All of them have exhibited a keen insight into the relevant provisions of law and have been very helpful to us in disposing of this case.

Mr. Huq prays for a certificate under Article 58(2)(a) of the Constitution. We certify that this case involves substantial questions of law as to the interpretation of the Constitution.

‑-----I agree.

A. H.

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