This is an appeal under section 37 (3) of the Industrial Relations Ordinance amended uptodate, against the award delivered by the Presiding Officer, Labour Court, Peshawar on 9-10-76, whereby respondent's application under section 32 (1-A) of the Industrial Relations Ordinance, was accepted and the workers of the appellant/Factory were held entitled to 50 % of the process--ing charges realised by the appellant from Messrs Ittehad Pesticides Limited for the formulation of 150 tons of D. D. T.
2. The facts giving rise to the present appeal are that on 22-8-74 the Union/Respondent raised a charter of Demands, containing 23 Demands, and the demand for the 50 % of the processing charges was not included in the charter of Demands and for the first time this demand was raised when the conciliation proceeding regarding the other demands were in progress. A settlement was arrived at between the parties in 5-12-1974 and according to the appellant this demand was left for the reconsideration of the proper authority without giving any decision one way or the other. Later on the respondent asked for the settlement of this dispute, and after efforts for conciliation failed, the conciliator issued a certificate to this effect.
3. The learned counsel for the appellant contended that this petition was not maintainable under section 32 (1-A) of the Industrial Relations Ordinance for the reason that this demand was not included in the original charter of demands and was subsequently added while the conciliation proceedings were going on. That in order to make a dispute the demand must be under section 26 of the Industrial Relations Ordinance. Secondly that the demand with regard to 50 % processing charges has not been protected under any law nor under any custom, usage or practice. That during the period when the processing of 150 tons of D. D. T. Formulation was going on no extra or overtime work had been done by the respondent, and therefore, no claim could be preferred under custom, usage or practice. That only solitary incident of payment of any processing charges made was 1968 when B. H. C. Was formulated and the workers were given one month's extra pay.
4. The learned counsel referred to the evidence of Mr. Kifayatullah (P. W. 1), wherein he stated that the charter of demands contained 23 demands, and the petitioner/Union subsequent to the charter of demands Exh. P. W. 1/2, addressed a letter to the respondent to include the present demand for payment to the workers, of processing charges. The learned counsel for the appellant cited; 1976 PLC132;1976PLC 137;1975PLC 638 ;1975PLC250; 1976PLC616and 1976PLC80.
5. The learned counsel for the respondent, however, contended that the Factory started running on commercial basis with effect from 6th of July, 1975 and during the financial year 1974-75 a profit of Rs. 39 lacs was earned. That in the year 1968 one month's salary was paid in lieu of the demand for processing charges as settled in Demand No. 3 of settlement Exh. 1/17, dated 28-1-1968, whereas for the present demand regarding the formulation of B. H. C. The workers would be entitled to Rs.
82,000 as salary of one month, whereas the demand in the present case was only 50 % of the total earning of the processing charges, which comes to Rs. 45,000.
6. As regards the second objection regarding the maintainability of the demand, the learned counsel for the respondent submitted that the appellant had established by conduct even under the law to agitate after they had signed the settlement. Reference was made to Exh. P. W. 1/7 dated 5-12-1974 settling this very demand at Item No. 24. A letter in this connection was sent to the Management (Exh. P. W. 1 /3) which was accepted by the Management, vide their letter dated 24th September, 1974, Exh. P. W. 1/4, and again vide Exh. P. W. 1/5 dated 15th October 1974 they informed the respondent that 24 demands were put up by the Union before the Management and for that a meeting is being held in Ministry of Health, Government of Pakistan. Finally this demand was discussed and settled as such at Item No. 24, Exh. P. W. 1/7, dated 5-12-1974 and at the suggestion of the Conciliator this matter would be referred to the authorities concerned for reconsideration, and consequently failure certificate was issued by the Conciliator, Exh. P. 1/6 dated 12-8-1975, and the respondent/Union was advised to adopt legal procedure to redress its grievance.
7. In the first cited authority (1976 PLC 132), it was held that under section 32 (1-A), an application to Labour Court was not maintainable, without observing the procedure prescribed for raising industrial dispute, and when the strike notice was not served, Union's petition for adjudication of demand, in the circumstances, held not maintainable. The question was whether a petition by the Collective Bargaining Agent under section 32 (1-A) of the Industrial Relations Ordinance, 1969 was maintainable in the absence of any strike notice to the employer under section 26 (3) of the Ordinance ; section 26 (3) reads:----- "Where a settlement is not reached between the employer and the Collective Bargaining Agent or, if the views of the employer or Collective Bargaining Agent have been communicated under sub-- section (1) to the Work Council and there is a failure of bilateral negotiations in the Work Council, the employer or the Collective Bargaining Agent may, within seven days from the end of the period referred to in subsection (2), serve on the other party to the dispute a notice of lock-out or strike, as the case may be, in accordance with provisions of this Ordinance."
8. The arguments of the learned counsel for the appellant and the learned counsel for the respondent on this preliminary objection have been heard. The main argument of the learned counsel for the appellant is that the application was not competent as no strike notice was served by the respondent on the appellant, within the meaning of section 26 (3) of the Industrial Relations Ordinance. On the other hand, learned counsel for the respondent contended that the service of demand notice is a condition precedent for filing an application under section 32 (1-A). In support of his argument, he relied on section 26 (3) which provides that where a settlement is not reached between the parties, the employer or the Collective Bargaining Agent may within seven days from the end of the period referred to in subsection (2), serve on the other party to the dispute a notice of lock-out or strike, as the case may be. It has been argued by the learned counsel for the respondent that strike notice was served on the employer and if it 13.6 assumed that no such notice was served, even then the application is competent as the service of such notice is not mandatory. Apparently the argument of the learned counsel for the respondent looks attractive, but when viewed in the light of other provisions of law, it loses all its significance from the perusal of record it becomes evident that in the first Charter of Demands Annexure `A' at Item No. 24 it is recorded; "50 % payment of the processing charges to be received from Ittehad Pesticides Limited on the formulation of 150 tons of D. D. T.
At the suggestion of the Conciliator, this matter will be referred to the authorities concerned for re- consideration."
Thereafter vide Annexures `D' and 'E' this demand was repeated and finally vide Annexure 'G' (Exh. P.
W. 1/16), addressed to the President and General Secretary of the D. D. T. Employees' Union, they were informed that few joint meetings were held and the problems in question were discussed, but without any fruitful result, and that in view of the above, as Collective Bargaining Agents for D. D. T.
Factory, they may adopt legal procedure to redress their grievance. Thereafter the respondent filed an application under section 32 (1-A) of the Industrial Relations Ordinance. As such there was no strike notice served on the appellant. As no procedure for conciliation has been prescribed by the Ordinance in case where a notice of strike or lock-out is not served on the opposite-party, a question would arise whether the steps, if any, taken by the Conciliator on receipt of Exh. P. W. 1/8, Exh. P. W. 1/10 and Exhs. P. W. 1/11 to P. W. 1/14 can be termed asonciliation proceedings, the answer would be in the negative, as section 41 of the Industrial Relations Ordinance provides that a conciliation proceedings shall be deemed to have commenced on that day on which a notice of strike or lock-out is received by the Conciliator. As no notice of strike was sent to the Conciliator, therefore, conciliation proceeding did not commence in this case. This view is supported by the other authorities, which are cited above by the learned counsel for the appellant. Moreover, if this question be kept out of consideration, I find that in the statement of Muhammad Hamid Hussain, General Manager, it is stated that in their demand notice presented by the respondent/Union (Exh.
P. W. 1/2), no demand for payment of processing charges was raised, that the appellant Factory mainly formulates D. D. T. For Malaria Eradication Programmes, and that according to the original production and stock statements from 21-8-1974 to 17-2-1975, the factory did not receive any order for the formula--tion of the D. D. T. And thus the Factory was idle and in the interest of work--ers and with a view to avoiding closure or lay-off, it was thought to undertake some ancillary job, therefore, Messrs Ittehad Pesticides Limited, was approached in order to get some production for the formulation of D. D. T. On this account the workers thus remained in the Factory and the lay-off was avoided. He further stated that there was no practice in the appellant//1 establishment of payment of any processing charges even if it is formulated for an outside Company. Kifayatullah Khan worker of the respondent also admitted that "it is correct to suggest that the Management of the respondent/Company had only informed us that they will discuss the Additional Demand raised by us regarding the processing charges with the Health Minister. It is also a fact that at the suggestion of the conciliator, it was decided that this matter shall be referred to the authorities concerned for re-consideration", and that after the settlement was signed between the parties (Copy Exh P. W. 1/7), the petitioner/Union did not bring the matter for adjudication before the Labour Court, till the present petition before the Labour Court, and that it was also correct that the petitioner/ Union did not raise any demand subsequent to the signing of settlement Exh. P. W. 1/7 under section 26 of the Industrial Relations Ordinance. Kifayatullah also further admitted that during the period the formulation of the D. D. T. In the Factory was not being done because there was a lot of D. D. T. Which was formulated, and was stocked, and that it was correct that during the period between 24-9-1974 to 20-11-1974 only the formulation of D. D. T. For Messrs Ittehad Pesticides Limited was done in the Factory, and it was also correct that the workers of the Factory performed their normal duties during this period and that the Factory of the appellant was run on no profit and no loss basis during the said period.
9. This being the factual position, I accept the appeal and set aside the order of the learned Labour Court. Parties to bear their own costs.