' MUHAMMAD FAZLE GHANI KHAN, J.-In the year 1963, the respondent Labour Union WAPDA, Electrical and Mechanical Workshop, Lahore, (hereinafter called the Union) served a strike notice with a charter of demands upon the appellant Management of WAPDA Electrical and Mechanical Workshop, Lahore. The conciliation proceedings between the parties failed and on the 10th of May 1963 the Conciliation Officer issued a failure certificate on the basis of which the General Secretary of the Union approached the Industrial Court under section 5 (5) of the Industrial Disputes Ordinance LVI of 1959 for the adjudication of the demands. This was registered as Industrial Dispute No 20 of 1963 and in this Court it is subject-matter of F. A.
0. No, 19 of 1966. In this dispute certain preliminary objections were raised before the Industrial Court on behalf of the appellant but these objections were overruled vide order of the Court dated the 27th of December 1965 as published in the Gazette of West Pakistan (Extraordinary) dated the 12th of January 1966.
2. With reference to another charter of demands the Union had served another strike notice upon the Management which also ultimately reached the Industrial Court on conciliation having failed and the failure certificate having been granted by the Conciliation Officer and was registered as Industrial Dispute No, 46 of 196, by the Industrial Court and is subject-matter of F. A.
0. No, 20 of 1966. The Management once again raised the same preliminary objections which were raised by it in an earlier Industrial Dispute No, 20 of 1964. The Court rejected the preliminary objections in Loth the disputes by one single order as they were based on the same question of facts and law. This was also published in the Gazette of West Pakistan (Extraordinary) mentioned above. The publication of the decision of the Industrial Court has given rise to the filing of the present two appeals on behalf of the appellant-Management under section 12 (5) of the Ordinance.
3. The first objection, raised on behalf of the Management, i3 that the Union was not a validly constituted body and as such it was not competent to serve the strike notice upon the Management and the entire proceedings, which have emanated on the service of so-called illegal strike notice, were void. The basis of this objection is that the election of the office-bearers of the Union was held in the meeting of the executive committee in contravention of the provisions of the bye-laws of the Union which required such an election to be held in the general meeting. The Industrial Court found that according to the constitution of the Union the election of officers and members of the working committee was to be held in a general meeting of the workmen, but in the disputed meeting of 5th September 1963 the President and the Vice-President were elected by the executive committee of the Union, nevertheless the election of the General Secretary of the Union, who had served the strike notice, was held legally and properly long before that date in the general meeting of the workmen as required by the constitution of the Union. The Tribunal, therefore, concluded that on this ground the Union could not be considered as illegal body and at the most what could be said about this matter was that the President and the Vice-President were not duly elected persons and as Sher Muhammed. The General Secretary, was a duly elected office- bearers, whose election was conducted in the general meeting and there was no evidence on the record to show that Sher Muhammed had ceased to hold the office of the General Secretary, therefore, the strike notice, which was served on his behalf was perfectly legal and valid under rule 57 of the West Pakistan Industrial Disputes Rules, 1960. Since the dispute was brought before the Court by the General Secretary on behalf of the Union it was, therefore, held that the entire proceedings under the Ordinance were valid.
4. The second objection of the Management was also about the President and the Vice-President.
According to the Management they were three in number while the constitution of the Union required only one President and ore Vice-President. This objection was found to be incorrect and on the reasoning on objection No, 2 the Tribunal held that the irregular election of the President or Vice-President will not affect the right of the General Secretary to serve the strike notice. The second objection was, therefore, negatived and answered in favour of the respondent.
5. The third objection raised on behalf of the Management was that the minutes book of the Union was not properly maintained and the proceedings of the meeting were not duly confirmed and as such the Union had committed the violation of section 28 (b) (c) and section 6 (a) of the Trade Unions Act. It was objected by the Management that the elections in 1963 were held thrice and some office-bearers were illegally removed by the Union. The Industrial Court overruled this objection of the Management and held that this could not be raised in the proceedings before him and the Management should in fact approach the Registrar of the Trade Unions and get the registration of the Union cancelled if it felt that there is some force in such objections The Court, therefore, declined to give weight to the above three objections of the Management and directed that the case he heard on merits.
6. The representative of the Management repeated before us the arguments which were advanced by him before the Industrial Court and urged that the question of the validity of the Union can always be successfully agitated before an Industrial Court and the Court cannot preclude itself from examining the contention about the validity of a Trade Union. In this connection he cited before us certain reported judgments of the Industrial Court and argued that the ludustrial Court h s always examined the validity of a Trace Union and if it was found that there were violations of the Trade Unions Act of 1926 on the part of Trade Union the Tribunal has invariably rejected the application of the Union presented to it under section 5 (5) of the Ordinance. Reliance was placed on the case of Chittagong Mercantile Employees' Association v. The Manager, Gillendars Arbuthnot & Co. (1) and Chittagong Mercantile Employees' Association v. Manager, Volkart Bros., Chittagong (2). The case was subject-matter of a dispute before the High Court of East Pakistan as reported in Chittagong Mercantile Employees' Association v. The Chairman, Industrial Court (3) and ultimately reached the Supreme Court vide Chittagong Mercantile Employees' Association v. The Chairman, Industrial Court of East Pakistan (4) and other similar authorities as reported in Bank of China Employees' Union v. Their Management (5) and Flour Mills Workers' Union v. Messrs Ganesh Flour Mills (6).
7. The burden of the argument of the representative of the Management is that once it was established before the Industrial Court that a Trade Union was not validly constituted or it had committed the violation of the Trade Unions Act of 1926, as amended, the Industrial Court had no j urisdiction to proceed with the matter as it was not being pursued by a legally constituted Trade Union and, therefore, has no locus standi to bring an industrial dispute before the Court. Out of all the cases referred to above on behalf of the Management the most important is Chittagong Mercantile Employees' Association v. The Manager, Gillendars Arbuthnot & Co.
This decision was challenged in writ jurisdiction and ultimately when a certificate was issued by the High Court of East Pakistan it went before the Supreme Court. In this case the validity of the Constitution of the Union was challenged on the ground that the Union was constituted in violation of the mandatory provisions of section 22 (2) of the Trade Unions Act and as such the Union had no right to present the dispute to the Conciliation Officer. Section 22 (2) provides that a registered Trade Union shall not elect more than 25 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 Industrial Court of East Pakistan found that the Union was constituted in violation of section 22 (2) of the Trade Unions Act and as such it had no right to present the suit to the Conciliation Officer and the conciliation proceedings founded on the presentation of the demands by the association, not validly constituted, are null and void and as such the Industrial dispute cases filed on the basis of such an invalid certificate had no legal existence. In the High Court the writ petition of the Union was disposed of on the ground that such a decision of the Industrial Court was covered by section 10 (1) (a) (aa) and as such was an Award within the meaning of section 2 (b) and was appealable under section 12 (4) and a writ petition was not competent without resorting to the remedy of appeal. About the composition of the Union the learned Judges observed that the members of the Union were drawn from such different kinds of business and industrial concerns as cannot be said to have been constituted according to the provisions of section 22 (2) in relation to each such concern and for these reasons the findings of the Industrial Court were upheld about the constitution of the Union.
8. When the matter went to the Supreme Court various points were agitated on behalf of the association but their Lordships of the Supreme Court gave an adjudication on point No, 3 which reads as follows "The appellant was a registrered Union, working from 1949 and had
(1) 1963 PLC 627 (2) 1964 PLC 362
(3) PLD 1963 Dacca 856 (4) PLD 1966 SC 731
(5) 1963 PLC 1106 (6) 1965 PLC 771 been recognised as such by the respondent-employers, by agreement in writing, in 1951, and again in 1958. The constitution of the appellant-Union could not be challenged under the Trade Unions Act, 1926, as amended by Ordinance XIV of 1960, because its status was governed by the unamend,ed Act, read with East Pakistan Trade Unions (Recognition) (Third) Ordinance, 1958 (Ordinance LIX of 1958), which held the field at the relevant time."
' The Supreme Court, after examining the definition of "Industrial Dispute" as defined in clause (h) of section 2 of the Industrial Disputes Ordinance of 1959, was pleased to observe that it was clear from this definition that a Union could not be a party to an industrial dispute, unless by some provision of law, it is vested with a right to speak on behalf of workmen and after further examining the provisions of subsection (5) of section 5 of the Ordinance their Lordships observed that the question that fell for determination before them was whether the association in law was a party to the industrial dispute. About the composition and constitution of the association and its recognition it was found that the recognition was not accorded to the employees' association under section 28-B of the Trade Unions Act of 1926 and under Chapter III-A of the Act which was inserted by section 12 of Ordinance 14 of 1960. At the same time it was found that the conditions of subsection (2) of section 22 of the Trade Unions Act were not satisfied in the case of employees' association. About the recognition of the Union which was duly registered under section 8 of the Act since 1949 and was in possession of a certificate under section 9 of the Act, it was observed that the recognition of the Union by the employers was governed by the provisions of section 3 of the East Pakistan Trade Unions (Registration and Recognition) (Third) Ordinance of 1958, and it was found that the agreement of recognition which was given to the Union from time to time had expired by efflux of time before the dispute was taken to the Industrial Court and as such the Union had lost its representative capacity as a recognised Union.
9. The objection of the employer, that the Union had to obtain proper recognition under the Trade Unions Act of 1926 as amended in 1)60, was not allowed to prevail. It may be useful to reproduce here the enunciation of the law made by their Lordships of the Supreme Court in the concluding paragraph : "The upshot of the whole discussion is that the appellant-Union having ceased to occupy the character of a recognised Union, had no locus standi, either to raise an industrial dispute, on behalf of its members, or to take it to the Industrial Court. In the face of this finding, the other points raised in the appeal, do not call for decision. :The appellant's petition in the High Court was, therefore, rightly dismissed and we dismiss the appeal with costs."
' From the above conclusions in the judgment of the Supreme Court it is apparent that the appellant-Union before their Lordships of the Supreme Court was non-suited for the main reason that it had ceased to occupy the character of a recognised Union. No such point was urged either before the Industrial Court or before us in appeal that the respondent-Union did not enjoy the recognition of the Management or that any such recognition wast necessary in West Pakistan as was required by section 3 of East Pakistan Trade Unions (Registration and Recognition) (Third)
Ordinance, 1958. What has been objected to before us is that the Union has committed certain irregularities about the conduct of elections or procedural matter which do not affect the constitution of the Union or its recognition by the employer. In our opinion, these are only procedural matters regarding the office routine and other matters pertaining to indoor Mangement of the Union and do not affect its valid existence.
10. The recognition of a Trade Union is required to be done by an employer under the provisions of section 28-B of the Trade Unions Act of 1926 as amended by Trade Unions (Amendment)
Ordinance, 1960. The provisions of this section are mandatory and if a Trade Union fulfils the conditions laid down under section 28-B then it is obligatory upon the employer to recognise it as such and in case an application has been made by the Union and a recognition is not forthcoming within a period of three months from the date of the application a Union is given a right to approach the Industrial Court under section 28-C of the Act for this purpose. A recognised Trade Union has been given a right under section 28-D to negotiate with the employer in respect of matters connected with the employment of all or any of its members, and the employers shall receive and reply letters of, and grant interviews to the executive of such a Union, in connection with any such matter except on issues on which as a result of previous discussion or correspondence the parties have arrived at a conclusion. Under section 28-E the Registrar or the employer may, after intimating the Trade Union concerned, apply in writing to the Industrial Court for the withdrawal of recognition of the Trade Union and the grounds on which a withdrawal can be allowed have ' been enumerated in this section. We were not told on behalf of the appellant that any such application was made for the withdrawal of the recognition of the Union either by themselves or on behalf of the Registrar to the Industrial Court and in the absence of any such indication on the record we are inclined to hold that the respondent is a duly recognised Unicn of the appellant. The Industrial Court was, therefore, right to say that the strike notice of the Union was perfectly valid.
11. We want to point out at this stage that an incorrect statement of fact was made by the appellant in its written statement while raising preliminary objections that the Industrial Court had already decided by its order dated the 27th of November 1963 that this Union was not a legally constituted body, but the Industrial Court, in its order under appeal, has held that there was no such order on the record of the case and, therefore, the representative of the appellant was warned to be careful to make such remarks in future. We would like to say that the appellant employer is a semi- Government Organisation and it was neither proper nor fair on its part to have raised a frivolous preliminary objection on the basis of incorrect statement of facts.
12. On the other hand we find that the respondent-Union is not only a duly recognised Union of the employer but previously the election of the Union and its office-bearers was held legal in the Award of the Industrial Court as published in the Gazette of West Pakistan (Extraordinary) on page 4293 of 1965. It may further be pointed out that same objections were also raised on behalf of the appellant in Industrial Cispute No, 38 of 1965 that the Union was not a legally constituted body and the main reason for such objection was the same that the elections were not properly conducted but the Industrial Court observed that even if it was held that the election of the President and Vice-President of the Union were not proper it did not mean that the Union had become illegally constituted and what at best could be said was that the office of the President and Vice-President was lying vacant. This decision became subject-matter of an appeal before this Court vide F. A.
0. 131 of 1965 and was decided on the 18th of August 1965. On the objection that the Union was illegally constituted as its elections were not properly convened this Court repelled the contention of the appellant and observed as follows : "We (sic) also in agreement with the view taken by the learned Industrial Court on the second point that if there was any irregularity in the election of any office-bearer of the Labour Union then that would not destroy or dissolve the Labour Union as such: only the particular office will remain vacant. Therefore, merely because the proceedings on a particular meeting of the Union were not properly conducted or were not minuted would be no ground to question the competency of the Union as such to initiate proceedings before the Industrial Court for the settlement of dispute with the employer."
' We are in respectful agreement with our learned brothers that this irregularity will not affect the status of the Union and its competency to carry on with an industrial dispute on the basis of this objection alone cannot be assailed.
13. The appellant has raised similar objections in various other disputes with the same Union and in those cases has also contended that the election at one or the other time was not properly held according to the constitution of the Union. We, therefore, would like to add that although the rule of res judicata enacted in section 11 of the C. P. C. Is in its terms inapplicable to the proceedings before the Industrial Court, nevertheless this A rule, which is based on the sound public policy that the law suit should not be prolonged, should be extended to this case. We will, therefore, hold that the judgment of this Court in F. A. O. No, 13t of 1965 on the question that the status of the Union cannot b questioned on the mere ground that certain elections were held irregularly or illegally has become res judicala against the appellant on the principles analogous to those of section 11 of the C. P. C.
Since the parties to the proceedings are the same and the issue which has finally been determined is about the irregularity of the election we, therefore, do not allow the appellant to reagitate this question all over again. Since the appellant has accepted the finding of this Court in the above- mentioned case we do not find any substance in the objections that the Union had become an illegally constituted body because some of its office-bearers were not legally elected or that the minutes of its meetings were not properly maintained or some of the meetings were not properly conducted
14. We have also noticed that a similar objection that the Labour Union WAPDA was not a legally constituted body was raised by the appellant in Industrial Dispute No, 50 of 1965 but the appellant was not able to urge anything in support of this objection and as such the same was overruled by the decision of the Industrial Court dated the 3rd of March 1966 as published in the Gazette of West Pakistan (Extraordinary), 1966. This matter came up in appeal before this Court vide F. A. O. 63 of 1966 and it seems that the objection about the competency of the Union and the validity of its constitution was not raised and seems to have been given up. In these circumstances the appellant can also be estoppel from challenging the validity of the Union time and again when in fact it has made no endeavour so far to get the recognition of the Union cancelled which remedy is available to an employer vide section 28-E of the Trade Unions Act or to get its registration cancelled from the Registrar of the Trade Unions.
15. Another circumstance which also points out is favour of the respondent is that before the preliminary issues were decided Sher Muhammad, the General Secretary of the Union was examined on behalf of the respondent on these preliminary issues on the 27th November 1963 but no question, whatsoever, about the constitution of the Union, the validity of the election or the proceedings of the meetings or any other matter connected thereto was put to him on behalf of the appellant. It is, therefore, obvious that these technical objections were argued on the basis of the bye-laws of the Union and there is no evidence on the record to sustain those arguments.
16. Before parting with the case we would like to point out that so far as the Province of West Pakistan is concerned, a notice of strike can be validly served under rule 57 of the West Pakistan Industrial Disputes Rules of 1960 which is in the following words : "Notice of strike.-Notice of strike to be given by workmen-
(i) in a public utility service shall be in Form G; and
(ii) in the case of an utility other than a public utility service shall be in form H and every such notice shall be signed by the Secretary of the registered Trade Union of which such workmen are members or where such workmen are not members of any registered Trade Union by five representatives of the workmen duly authorised in this behalf at a meeting held for the said purpose."
In this case the status of the Union as a registered Trade Union has not been denied on behalf of the appellant. Neither it has been denied that the person, who signed the requisite notice was not the Secretary of the Trade Union of which the workmen were members. In these circumstances the validity of the strike notice cannot be questioned and the conciliation proceedings having failed the Union is fully competent to take the matter to the Court. The proceedings based on rule 57 are, therefore, valid. Since no corresponding rules exist in East Pakistan the authority of Chittagong Mercantile Employees' Association will not be attracted to the present case for this added reason also.
16-A. In view of the above discussion we will dismiss these appeals with costs.