This is an Appeal against a decision of -the Second West Pakistan Industrial Court dated the 20th of February 1969. The impugned order was passed on an application under section 11(2) of -the West Pakistan. Industrial Disputes Ordinance, 1968. The facts giving rise to the appeal briefly put are these.
2. H. M. Silk Mills Limited (hereinafter called the appellant) is engaged in manufacturing of silk and its products from nylon and art silk yarn. The Five Elected Representatives are the workmen (hereinafter called the respondents) engaged in the mill of the appellant.
3. The Five Elected Representatives, other than the respondents, served a strike notice on the appellant containing nine demands. A settlement was arrived at during the course of conciliation proceedings on the 18th of February 1967. The settlement dated 18th February 1967 is signed by the Deputy Director, Labour Welfare, Mr. Hafeez Baig. It is noteworthy that out of nine demands five namely, 4, 5, 7, 8 and 9 were a withdrawn. Demand No. 1 was in respect of re-instatement of three persons. The Representatives did not press re-instatement --of one Shaukat Ali. The Management agreed to make 14 days ex gratia payment to the other two. Demand No. 2 was in respect of leave.
The Management granted 12 days Annual leave, 10 days Festival leave and 15 days sick and casual leave (half with pay and half without pay). Demand No.3 is in respect of arrears of overtime. The parties agreed that overtime payment will be governed by the Factories Act. Demand No. 6 was in respect of bonus, The Management agreed to pay bonus at the rate of one month's a erage basic earnings for the whole, year calculated on 26 working days.The settlement was binding by the parties for 3 years and during this period the workers undertook not to raise any demand involving financial implications.
4. Two stake notices dated the 16th of July 1968, by two sets of Five Elected Representatives of the workmen of the appellant-Mill, were served on the Management. It is submitted by the Union that the strike notice given by the so-called Five Elected Representatives of the workmen, namely, Jalander Khan, Fateh Khan, Rahimuddin, Haqdar Khan and Abdul Ghaffar was not a genuine one but was managed by the Mills. It was- received by the Management on the 17th of July 196'. It is not clear how and when the Management received the notice given by the other Five Elected Representatives, who are contesting the present Appeal. The Conciliation Officer issued the Failure Certificate in respect of the notice of Jalander Khan and others on the 23rd of July 1968 and in respect of strike notice given by the respondent, he issued the Failure Certificate on the 30th of July 1968.
5. The Management made an application under section 6(8) of the Industrial Disputes Ordinance, 1968 on the same day that the Failure Certificate was issued. It was numbered as Industrial Dispute No. 27 of 1968. The respondent filed an application under section 6(8) of the Ordinance on the 29th of August 1968 (Industrial Dispute No. 37 of 1968).
6. On behalf of the Management, Mr. M. A. Ghani, the learned Representative for the appellant made an application under section 11(2) of the Industrial Disputes Ordinance, 1968, raising certain legal objections, which I will presently mention, and on the basis of these objections prayed that the application of the respondent be dismissed. The objections are as under :-
(1) That the settlement dated the 18th of February 1967 being operative for a period of three years, the respondent were debarred from raising any demand involving financial implications under the said settlement for a period of three years. Demands Nos. 3 to 15 of the present Industrial Dispute involved financial implications and therefore cannot be raised.
(2) That Demands Nos. 2 to 15, raised by the respondents in their notice dated 16th July 1968, are barred by the provision of Order II, rule 2 of the Civil Procedure Code.
(3) That the Conciliation Officer having issued the Failure Certificate on 23rd July 1968, was functus officio and, therefore, could not issue another certificate on 30th July 1968, in respect of Demands Nos. 1, 3 to 15, which were the subject---matter of the Failure Certificate dated 23rd July 1968.
(4) That the Conciliation Officer being doubtful as to the validity of the second strike notice dated 16th July 1968, was not competent to issue a Failure Certificate on 30th July 1968.
7. I now propose to dispose of these contentions separately.
8. Mr. Mahmood A. Ghani, the learned Representative for the appellant, rightly contended that during the period of the operation of a settlement arrived at during the conciliation proceedings, whatever compromise was arrived at was binding on the parties within the meaning of section 1 & of the West Pakistan Industrial Disputes Ordinance, 1968 (hereinafter called the Ordinance). A settlement arrived at in the course of conciliation proceedings is binding on all the parties to the industrial dispute of the workmen, who were employed in the establishment and all persons, who subsequently became employed in that establishment or part thereof: Section 18 of the Ordinance makes a distinction between a settlement arrived a during the course of the conciliation proceedings and a settlement arrived at otherwise between the employer and the workmen.
Where a settlement is arrived at between the employer and the workmen, otherwise than during the course conciliation proceedings, it is binding only between employer and the workmen who were parties to the agreement. The Legislature intended to attach great sanctity to a settlement arrived at during the course of conciliation proceedings. It made it binding not only on those who were parties to the proceedings, but also on all the workmen of the establishment and also those who were to be employed in future in that establishment. A settlement, however, in order to have the effect as provided under section 18 of the Ordinance, must be a genuine one. In the present case, it has been contended by the Union that the so-called Five Elected Representatives were not the elected Representatives of the workmen and that the settlement was the result of the mechanisation on the part of the Management. On this point, the Union examined Khasta Gul, who stated that the Five Elected Representatives, who entered into the settlement dated 18th February 1967, namely, Mahmood Khan, Sher Muhammad, Jaffer. Abdul Samad and Rais Ahmad, were not the employees of the Mill, and that they were not authorised to enter into any agreement. His statement, if properly analysed, means in the first place, that these Five Elected Representatives did not work in the Mill and in the second place they were not authorised to enter into the agreement.
So far as the first question is concerned, he admitted that he knew all the workers, who worked in the same Department in which he was working, but that he knew few of the workmen in he shift relating to the Weaving Department. What he meant was that he knew all the workmen working in his shift, but did not know all the persons working in the other shifts. It may be, therefore, contended that the Five Elected Representatives were working in other shifts than the one in which Khasta Gul was working. So far as the other point is concerned, there is no cross--examination. The fact that the Five Elected Representatives were not authorised to enter into an agreement remains unchallenged. On the other hard, the Management examined Mr. Muhammad Umar. He stated as under:-- "It is not a fact that the workers mentioned in Exh. R. W. 1/2, were never the workers of our Mill. That I cannot produce them today. These workers were with us in the employment at that time. At the moment I cannot say if they are still in our service or not. I cannot say because I do not remember the details."
9. In the light of the questions put in the cross-examination, it was necessary for the Management to have produced the Pay Rolls or some other document to establish that these five persons were or are in the employment of the Mill. I would prefer the statement of Khasta Gul to that of Muhammad Umar. There is nothing on the record to establish that these five persons were elected, as their Representatives, by the workmen to give the strike notice. The contention of Mr. F. A. Khan, the learned Representative for the respondent, finds support from the settlement itself. The settlement does not confer any substantial benefit or valuable right on the workmen. In this connection, it is doubtful if it can be held that the settlement was arrived at during the conciliation proceedings, so as to bind the parties within the meaning of section 18 of the Ordinance. A photostat copy of the settlement is on the record. It is signed by the Five Elected Representatives before the Deputy Director, Labour Welfare. A perusal of this also does not show that the settlement was arrived at during the conciliation proceedings. The relevant portion of the settlement which will throw light, as to whether it was arrived at during the conciliation proceedings or not, is as under:- "Strike notice dated 31st January 1967, was received from the Five Elected Representatives of the employees with the Charter of Demand attached therewith. Through the interven--tion of the Deputy Director, Labour Welfare, Karachi, and after the Joint Meetings held on 11-2-67 and 18-2-67, the parties have reached the following agreement:-"
There is nothing in the settlement to indicate that it was arrived at during the conciliation proceedings or before the Conciliation Officer. There is' also nothing on the record to prove the fact that Mr. Hafeez Baig, Deputy Director, Labour Welfare, before whom the Five Elected Representatives of the workmen signed the settlement on 18th February 1967, was also the Conciliation Officer. In these circumstances, I would hold firstly, that the settlement was not arrived at during the conciliation proceedings, so as to bind all the workmen. The settlement dated 18th February 1967, will only be binding on the parties thereof. In the second place, I would hold that the settlement was a got up one through the contrivance of the Management.
10. The contention that the Conciliation Officer once issued a Failure Certificate in respect of certain demands was functus officio and could not issue a Failure Certificate in respect of the same demands, cannot be doubted as a proposition .of law. In this connection, reference rosy be' made to a case between the Natural Gas Fertilizer Factory, W. P.
1. D. C., Multan v. Natural Gas Fertilizer Factory Labour Union (1966 PLC 20). Mr. F. A. Khan for the respondent-Union, however, contended that the strike-notice dated 16th July 1968, was given at the instance of the Management and that those, who gave tire notice of strike, were not the' Elected Representatives of the workmen. Khasta Gut stated that on 7th July 1968, a meeting of the workers of the Mill was held. They did not authorize Jalandar Khah, Fateh Khan, Fahimuddin, Haqdar Khan and Abdul Ghafar to give a strike notice. According to him, this meeting was attended by about 1,200 workers. There is nothing in the cross-examination of this witness to suggest that he was telling a lie. On the other hand, the Management have not produced any workman to prove that Jalandar Khan and others, who gave the strike notice on 16 July 1968, were the Elected Representatives of the workmen. It is noteworthy that the Management did not care to produce any of the Five Elected Representatives to assert that they were elected by the workmen. It may also be noted that the alleged Five Elected Representatives did not move the Court under; section 6(8) of the Ordinance. The application on the other hand was made by the Management itself, in order to restrain the workmen from going on strike. The Management, after its purpose was served, withdrew the application. All these facts lead to the conclusion that the strike notice dated 16 July 1968, was given by Jalandar Khan and others at the instance of the Management and not on behalf of the workmen. There being, therefore, no valid strike notice, the Failure Certificate issued by the Conciliation Officer on 30th July 1968, cannot be held to be bad in law.
11. The principle underlying Order 11, rule 2 of the Civil Procedure Code is based on sound public policy. It is to avoid multiplicity of proceeding and harassment. The provision of Order 11, rule 2, applies with equal force to industrial disputes. In order that industrial peace may be maintained for some time, it is necessary that the parties to Iw the industrial dispute must raise all the disputes that can be raised at one and the same time. I would uphold the contention of Mr. Mahmood A.
Ghani that the principle underlying Order 11, rule 2, applies with equal force to the parties before the Industrial Court. The parties must be careful to raise all the disputes which can be raised at the same time. This is to preserve industrial peace, save the time of the parties and also the expense.
The question, however, is as to whether Order It, rule 2, would apply in the circumstances of the present case.- I have already held that the strike notice dated 16th July 198, byJalandar Khanand others was not given in their Representative capacity as representing the workmen of the Mill. In that view of the matter, it cannot be said that the respondents are precluded from rising; the demands that they have now raised.
12. Lastly, it was contended by -Mr. Mahmood A. Ghani that the Conciliation Officer being doubtful as to the validity of the strike notice dated 16th July 1968, was not competent tp issue the Failure Certificate on 30th July 1968. There is not much force in this contention. The Failure Certificate is on- the record of this case. On thd face of it, it does not express any doubt as to the validity of the strike notice. The relevant portion of the Failure Certificate reads as under :- ---The Industry is a public utility service and the conciliation proceedings were started on 18-7- 1968,.on receipt of a notice of strike under the West Pakistan Industrial Disputes Ordinance, 1968.
En the conciliation meeting no settlement could be reached between the parties. No useful purpose will be served by keeping the conciliation proceedings pending till the close of said period.
1, therefore, in exercise of the powers vested in me under section 5(7) of the West Pakistan Industrial Disputes Ordinance, 1968, issue the Failure Certificate to enable the parties to approach the Industrial Court:---th th
13. The Certificate is dated 30th July 1968. Mr. Majid Farooqi, who issued the Certificate of Failure was examined by the Management. Mr. Mahmood A. Ghani, relied on the following statement of Mr. Majid Farooqi :-- ---I produce the conciliation minutes, Exh R. W. 2/11. The marginal note is in my handwriting." I did issue the Failure Certificate though I was in doubt. I discussed the matter with the Assistant Director and he directed me that since he had also issued the Failure Certificate, therefore, I could also issue the Failure Certificate. I have not mentioned in my comments that I have issued the certificate on the instructions of the Assistant Director.---
14. It may be that Mr. Farooqi had doubt before issuing the Failure Certificate. It seems to me that his doubt was resolved when he issued the Failure Certificate. Moreover, under section .6(4) of the Ordinance, the validity of the conciliation proceedings cannot be questioned on the ground that the notice of strike did not conform to the provisions of the Ordinance of the Rule framed thereunder or was otherwise invalid. I would) hold that the Failure Certificate issued on 30th July 1968, was a valid one.
15. In the result, I would maintain the impugned order dated 20th February 1969.