1. MD. NURUL ISLAM KHAN (CHAIRMAN). Both the Members are present. Both the parties are present.
2. Heard arguments of the learned Lawyers of both sides. Appli--cation under section 45(1) of the Industrial Relations Ordinance,1969 (hereinafter referred to as "Ordinance") filed by the first party and an application under Order VII, rule 11, C. P. C., tiled by the O. P. for rejection of the plaint are taken up together.
3. The case of the first party is that the second party No. 1 is a registered Trade Union representing the employees of the first party and other Newspapers workers of Chittagong. The second party No. 2 is a federation, to which the second party No. 1 is a unit. The second party No. 1 raised a dispute and served a strike notice on the first party on 22-5-67 and latter on an agreement was entered into between the first party and the others and the second party through a memorandurm of settlement in the conciliation held by the Conciliation Officer, Chittagong. In the agreement there is a settlement' regarding Pay Scale, Provident Fund, Night-shift Allowance, Bonus, Leave facilities, House Rent, Fair Price Shop, Tiffin Allowance, Wages Payment and Promotion. The agreement was to remain valid for 3 years, i.e. up to 13-6-70 and also until tile expiry of two months from that date.
4. The second party is bound by this agreement and during this period they cannot raise any further demand. Second party No. 2 suddenly submitted a 22 points charter of demands including most of the points covered by the said agreement, dated 14-6-67, which is still in force. The first party expressed its inability to concede to these demands in view of the agreement, Then very surprisingly the first party received another 4 points charter of demands from the second party No. 1 on 19-1-70 and second party No 1 also served a strike notice purported to be a notice under section 28 of the Ordinance, threatening the first party that a strike will take place from 20-2-70. On 28-1-70 the second party No. 2 also served a similar strike notice which was to be effective from 23-2-70, unless the 22 points charter of demands were fulfilled. In pursuance of the strike notice the workers were resorted to illegal strike on 22-2-70 and that strike is still continuing. The second party is bound by the still subsists. But even then unilaterally they disowned the agreement and have come forward with the demands. The employees of the first party, therefore, are bound to work under the said agreement.
5. Under section 46, subsection (1) (d) of the Ordinance strike, if it is declared, commenced or continued during the period of settlement in operation would be illegal. Hence, this application, by the first party for adjudication of the dispute.
6. The first party further submitted an application under section 45 (1) of the Ordinance stating inter alia that due to the strike resorted to by the second party a public emergency has, arisen in the town of Chittagong and the publication of the local newspapers have come to a halt. Citizens' life has become unbearable and a grave emergency, has developed, and as .the second party is bound by the agreement, the workers of the first party, at the instance of the second parties should not resort to strike and for all these reasons the continuance of strike should be prohibited.
7. The second party No. 1 entered into- appearance by filing an application under Order VII, rule 11 of C. P. C. and also filed a show cause as against the order passed by this Court, as to why the continuance of the strike should not be prohibited.
8. It has been stated by the second party No. 1 that the second party No. 2 is the collective bargaining agent under section 22 of the Ordinance and the agreement signed on 14-6-1967 was between the first party and the second party No. 1 in course of conciliation under section 5 (3) of the East Pakistan Labour Disputes Act, 1965 (hereinafter referred to ' as "the Act"), which has been repealed by the Ordinance. It is further stated that the workers of the first party resorted. to strike in accordance with the strike notice given by the second party No. 2, which is not a party to the agreement. It is stated that the agreement entered into by the first party - and the second party No. 1 is not binding upon the second party No. 2, which is the collective bargaining agent of the workers of the first party, as it is not saved by section 67 (2) (b) of the Ordinance. The concept of collective bargaining was totally absent in the East Pakistan Labour Disputes Act, 1965. It is a new concept in the Ordinance. The concept of bilateral negotiations introduced under section . 67 of the Ordinance is also totally absent in the Act. Section 5 read with section 17 (1) of the Act is also inconsistent with sections 28, 29 and 41: of the Ordinance. Similarly, section 14 (1) (b) of the Act is inconsistent with section 39 (1) (b) of the Ordinance. It is stated that the agreement, dated 14-6-67 signed under section 5 (3) of the Act cannot be deemed to be an agreement under section 30 (4) of the Ordinance, as it is not saved by section 67 (2) (b) of the Ordinance and, therefore, it is not binding or enforceable under section 39 of the Ordinance. Hence, it is contended that the. workers of the first party are not barred from going on strike at the call of the second party No. 2.
9. It is further stated that the first party did not 'spell out in its application what right it claimed, as well as the specific source of that right guaranteed td him. The prayer" of the first party is vague anal indefinite and that it has not disclosed any cause of action and hence, the Court' cannot adjudicate in the matter and as the second party No. 2 is the lawful collective bargaining agent and as it has served notice of strike in accordance with the procedure laid down in the Ordinance and as the workers have been resorted strike in accordance with the provisions of the, Ordinance this application under section 34 has no basis and it does not lie. Hence, it should be rejected under Order VII, rule 11 (a) and (d). of the C. P. C.
10. The second party has further contended that no application under section 45 (1) of the Ordinance lie as the present application under section 34 does not lie. Hence, the procedure for strike elaborated by the second party is completely legal and valid and this application should be straightaway rejected.
11. Now, the present case is that the second party challenged the application under section 34 (1) of the Ordinance.
12. The main source of challenge of the second party is claimed to be the provisions of the Ordinance, that under section 22 (1) of the Ordinance the second party No. 2 is the collective bargaining agent of the workers of the first party and that the second party No. 1 is no longer the collective bargaining agent and hence, any agreement entered into by the first party and the second party No.1 would not be binding upon the second party No.2.
13. Now, this argument does not stand in the taste of reasons, since it appears that even a registered Trade Union can be a collective bargaining agent under section 22 (1) of the Ordinance. In the ~ present case as I have elaborated the cases of the first party and the second party, it would appear that the second party No. 1 also served a strike notice simultaneously with the strike notice of the second party No. 2 and strike notice served by the second party No. 1 as have been referred to. It, therefore, means that the agreement enetered into by the second party No. 1 has been recognised by the second party No. 2, though they stated that their demands are outside the agreement. This does not appear to be correct. It appears that some of the demands as raised by the second party No. 2 have already covered by the agreement and therefore,. they were standing on a common ground. Further it has been submitted that as a federation the second party No. 2 should have been registered. But it has not been registered under section 22 of the Ordinance. Its locus standi has been questioned. Standing on such doubtful ground the second party No. 2 has been served this strike notice while an agreement between the second party No. 1 and the first party subsists. This appears to be not in conformity with the spirit of the Ordinance and as such, the strike shall be illegal, if it is declared, commenced or Continued during the period in which the settle--ment or award is in operation in respect of the matters covered by settlement or award [section 46 (1) (b) of the Ordinance). While the second party No. 1 working as the collective bargaining agent of the workers of the first party, the second party No. 2 also appear in form, while challenging the bona fides of the agreement entered into by the second party No. 1 and the first party. In fact, the President of the second party No. 1 has filed the written objection as well as the application under Order VII, rule 11, C. P. C. This is very much against the spirit of the case of the second party No. 1. While the second party No. 1 says that it has no locus standi to enter into any agreement under the present Ordinance, it itself come forward through its representative td defend the position of the second party No. 2. The second patty No. 2, is absent, though notices have been served upon them. This is itself a contradictory position.
14. From a perusal of the notice as I have already mentioned, it appears that the second party No. 2 has recognised the strike notice served by the second party No. 1 and also the agreement with the first party. This is a tripartite agreement entered into under section 5 (3) of the old Act which has been inconsistent with section 30 (4) of the present Ordinance, and therefore, it has been lawfully saved under the provisions of section 67 (2) (b) of the present Ordinance.
15. The argument that no cause of action has been disclosed by the first party is not correct since- " The cause of action, as it means denotes a bundle of essential facts which it is necessary for the plaintiff to prove before he can succeed in his suit. It has no relation whatever the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff: It refers entirely to the grounds set forth in the plaint as the cause of action, or in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour."9 D L R 197.
16. It appears that in the present case there is a cause of action since the first party has clearly stated that there is an agreement and by resorting to strike the workers of the first party have violated the agreement and, therefore, the strike resorted to and continued by them is illegal.
17. In view of all these reasons I find, that, the relevant provisions of the Act are consistent with the relevant provisions of the Ordinance as it relates so far to the present case and they have, been saved by section 67 (2) (b) of the Ordinance. Therefore, the application under section 34 of the Ordinance lies. A mere perusal of that section will show that by the agreement some rights were guaranteed to the first party. There is no doubt that grave emergency has been arisen in view of the stoppage of the publication of the newspapers due to the strike commenced, continued by the workers of the first party. There is a financial loss on the side of both the parties. There is no doubt that the members of the- public are deprived of in having their daily newspapers due to the seizure of the publication of the newspapers, as a result of the strike in question.
18. The application under section 45 (1) is in a nature of tempo--rary injunction under the C. P.C.
19. In the circumstances-, "It is not necessary for the plaintiff, for temporary injunction, to establish that he has got a good case which is likely to -be decreed. If - the plaintiff has got sa arguable case, that is enough for the purpose of temporary, injunction. So far as the injunction is concerned, he is to prove a prima facie case for injunction. No Court should go into the merit of the suit in which' a temporary injunction is prayed for. " (11 D L R 103).
20. It is also laid down that- "In the, case of temporary injunction (a) an application must show a fair prima facie case in support of the right claimed; (b) as actual or threatened violation of that right; (c) productive irreparable or at least serious damage (d) this conduct must be such as not to dissention him to assistance but it should be fair and honest and in particular there must be no acquiescence or delay; (e) there must be greater convenience in granting than refusing the injunction. (f) equally efficacious relief must not be obtainable by any other usaul mode or proceeding. " (11 D L R 470).
21. In the present case the first party has fulfilled. all the conditions and, therefore, they are entitled to get temporary injunction for prohibiting the continuance of the strike commenced and continued by the workers .of the first party at the instance of the second parties.
22. In this connection I once again state here that the provisions of Order VII, rule 11 (a) and (d), C. P. C., are not applicable to this present case and, therefore, the application under Order VII, rule 11 of the C. P. C. for rejection of the plaint fails.
23. Both the learned members were, consulted in coming to the above findings and they have given their opinion in writing for prohibiting the strike.
24. Hence, it is, ORDERED That the application under Order VII, rule 11 of C. P. C. is rejected on contest and the application under section 45 (1) of the Ordinance be allowed on contest.
25. It is further ordered that the strike commenced and continued by the Press Workers of the first party at the instance of the second parties be prohibited.