DECISION ' On the 28th June, 1978, the appellant-Union served a charter of demands, containing in all twelve demands,- upon the respondent-Company. The negotiations in respect of these demands between the parties, however, ended in failure on 7th July, 1978. On the 16th July, 1978, notice of strike was served by the appellant upon the respondent-Company. However, a day earlier i,e, on 15th July, 1978, a copy of the strike notice was served upon the Conciliator, as required by section 28, I. R. O. As the conciliation proceedings failed, the appellant-Union submitted an application to the learned Sixth Labour Court under section 32(1-a), I. R. O., to determine and adjudicate upon the demands made on behalf of the workmen by the appellant-Union. The learned Labour Court has dismissed the said application on the ground that as the notice of strike was served upon the respondent-Company after the expiry of seven days from the failure of negotiations, there was non-compliance with the provisions of subsection (3) of section 26, I. R. O., and, accordingly, the application was not maintainable. The appellant-Union has come up in appeal to this Tribunal against this decision.
2. The question whether a strike notice given after the expiry of seven days from the failure of negotiations is invalid or illegal came up for consideration before their Lordships of the Supreme Court in the case of Marker Employees' Union v. Marker Alkaloids Ltd. And others. Their Lordships, while repelling the contention that such strike notice was illegal, observed as follows :- "In or opinion, the observations of the Appellate Tribunal do not lay down a correct statement of law. A notice of strike given beyond 7 days of the failure of bilateral negotiations cannot, in principle, or on the interpretation which we have placed on section 26 of the Ordinance, be said to1 be illegal. The period of ten days prescribed in subsection (2) and period of seven days in subsection (3) are intended to infuse a sense of urgency among the parties to the industrial dispute. There is no indication in the Ordinance that if the time Schedule laid down in section 26 is not conformed to strictly, the entire process laid in section 26 for settlement of an industrial dispute will fall through. The word 'may' used in section 26 of the Ordinance is, therefore, directory and not mandatory as held by the learned Judge in the High Court."
3. In coming to the above conclusion, their Lordships relied upon their earlier decision in the case of Pakistan Petrolium Workers' Federation v. Burmah Shell Oil Storage and Distributing Company, wherein the Supreme Court had ruled out the objection taken by the employer that the award given in that case by the Tribunal under the Industrial Disputes Act, 1947, after the expiry of the last extension of time by the Government was invalid. The rule enunciated by their Lordships in that case was thus expressed :- "In employing the expression 'shall submit its award within a period not exceeding three months from the date of reference', the emphasis may well be upon expedition, without making the validity of the action depend upon the exact observance of the limit of time."
4. The decision in the Marker Employees' Union case has been referred to by their Lordships of the Supreme Court in the case of Brook Bond (Pakistan) Ltd. v. Government of Sind. Their Lordships observed that the facts in this case and those in the Marker Employees' Union were different and distinguishable, for whereas in this case no notice of strike was served by the Workers' Union on the Company nor was any copy thereof at all delivered to the Conciliator in compliance with the mandatory requirements of section 29 of the Ordinance, in the case of Marker Employees' Union strike notice was served both upon the employer and the conciliator but the notice was served only on the employer late.
5. In the instant case, admittedly strike notice was served both upon the employer as well as on the conciliator. Furthermore the strike notice on the conciliator, which was received by him on 15th July, 1978, appears to have been in time. However the strike notice upon the employer, which was served on 16th July, 1978, was served one day late. In view of the decision of their Lordships of the Supreme Court in the cases of Marker Employees' Union and Brook Bond Pakistan Ltd., the strike notice and the subsequent proceedings cannot be considered to be invalid or illegal. Mr. Ghulam Hassan, the learned counsel for the respondent-Company, however, relied upon the provisions of section 43, I.
R.
0., and contended that unless an industrial dispute has 'been raised in the manner provided in the Ordinance, including the service of notice of the strike upon the employer within the prescribed period, no industrial dispute can be said to exist. Section 43, I. R.0., reads as follows :- "43. Raising of industrial disputes.-No industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner by a Collective Bargaining Agent or an employer."
6. No doubt the above section is couched in mandatory language and further it is also correct, as contended by Mr. Ghulam Hassan, that the provisions of the section have not been noticed or referred to by their Lordships of the Supreme 'Court either in the case of Marker Employees' Union or Brooke Bond Pakistan Ltd. However, in view of the decision of their Lordships of the Supreme Court in the former case, where it has specifically been held that late service of notice of strike on the employer does not make the notice invalid, I cannot take any contrary view.
7. It was next urged by Mr. Ghulam Hassan that the present appeal was not maintainable. His contention, in brief, was that an appeal lies only against an award but since the learned Labour Court had dismissed the application of the appellant-Union on a preliminary ground, the order of the learned Labour Court cannot be said to be an award. In support of his contention the learned counsel relied upon the decision of my learned predecessor in the case of Corning Glass (Pakistan)
Ltd., Karachi v. Employees' Union and anothe. The said decision in turn is based on the decision of2 3 4 their Lordships of the Supreme Court in the case of Province of West Pakistan v. Gohar Malik. In the latter case, their Lordships held that the phrase "any matter relating thereto" appearing in the definition of the term 'industrial dispute' in the I. R. O. Is to be read ejusdem generis with the words 'industrial dispute' to cover only controversies with regard to the employment or non-employment or the terms' of employment or the conditions of work of any person under subsection (5) of section 12 of the Ordinance. In the Corning Glass's case, the question which fell to be considered before my learned predecessor was whether the decision of the Labour Court, given on a preliminary objection raised by the Company, that the demands could not be raised by the Union during the pendency of the settlement, was an award or not ? The decision in the Corning Glass's case was given on the facts of that case which are clearly distinguishable from the facts of the present case. In the instant case the question raised was whether the strike notice given by the appellant-Company was illegal and the subsequent proceedings based thereon were not maintainable. In my humble opinion, these are issues directly connected with the demands made by the appellant-Union. The decision of the learned Labour Court, therefore, C' dismissing the application of the appellant-Union for determination and adjudication of their demands, thus, appears to be concerned with the employment or non-employment or the terms of employment or the conditions of work of the employees in the respondent-Company. It may be pointed out that by Act XVI of 1975 the definition of "industrial dispute' in the I. R.0. Has been modified and it is expressly provided that a dispute or difference in respect of enforcement of any right guaranteed or secured to a worker by or under any law, other than the I. R.0., or any award or settlement for the time being in force, does not fall within the purview of the definition and does not constitute an industrial dispute for the purposes of the I. R.0.
8. For the reasons discussed by me above, I would set aside the impugned decision of the learned Labour Court, allow the appeal and direct the learned Labour Court to decide the application of the appellant-Union on merits.
1976 SCM R 132 PLD 1961 SC 479 PLD 1977 SC 237 1973 PLC 140 PLD 1970 SC 292