1. K. HOSSAIN, J.--The petitioner, Pakistan Tobacco Company Limited in this writ petition has challenged the order and award of the learned Labour Court dated 29th January 1970 passed in Industrial Dispute Case No, 75 of 1969.
2. The facts for disposal of this Rule are that the petitioner is a Limited Company registered under the Companies Act and the respondents are the workers of the petitioner-company. On 20-10-1967 a settlement was arrived at between the company and the workers regarding certain terms and conditions of the service of the workers of this company at its Chittagong.
3. Unit in East Pakistan. The duration of this agreement was for two years. The workers through their Union served a notice dated 1st of March 1969 on the company intimating their desire to recall their settlement and on 1-5-1969 the Union Workers submitted a fresh charter of demand on the Company. An ad interi relief of Rs, 30 was granted to the workers which remained in operation for six months. Thereafter by a letter dated 21st August 1969 the Union informed the company that staggered tea-breaks are also a part of their charter of demand submitted on 1st of May 1969. On 22nd December 1969 the workers discontinued attending their work during tea-breaks en bloc thereby bringing about the stoppage of machinery. The company therefore on 24th December 1969 filed an application under section 34 of the Industrial Relations Ordinance, 1969 before the Second Labour Court for declaring the action of the workers in resorting to staggered tea-breaks as strike. The workers filed objection against this application and during the pendency of the proceeding before the Labour Court there was an interim injunction against the workers for not resorting to the discontinuance of work taken en bloc. The decision was given on 29th January 1970 dismissing that application of the petitioner-company. Against that the present Rule was obtained.
4. It may be stated that on 9th January 1970 the company and the workers have come to another settlement for two years on certain terms and conditions.
5. The Labour Court found that the workers by resorting to their staggered tea-breaks en bloc did not violate any terms of the agreement as with the revocation of the settlement dated 20-10-1967 by the workers the binding effect of the settlement ceased and as such the workers were entitled to resort to staggered tea-breaks en bloc. He also found that this resorting to tea-breaks by the workers of the company does not amount to strike. A question of jurisdiction was also raised by the workers but no decision was given on that point.
6. Mr. Jaffer, the learned Advocate for the petitioner-company has assailed the findings of the Labour Court on certain grounds and they may be taken up one after another. It may be stated that Mr. Mazanimel Haq appearing on behalf of the respondents workers has also raised certain points as to the maintainability of this writ petition as well as the maintainability of the application under section 34 of the Industrial Relations Ordinance, 1969 which may also be considered in its place.
7. In this petition two fundamental questions are involved. First is--what is the legal effect of the revocation of the settlement arrived at between the company and the workers, and secondly if the binding effect of the settlement continues then the resorting to tea-breaks by the workers en bloc will amount to strike or not? It is therefore proper that these two fundamental points involved in this writ petition in the dispute between the company and the workers need begone into.
8. The first point for our consideration therefore is whether with the revocation of the settlement arrived at on 20-10-67 between the company and the workers by the service of notice of two months on 1-3-1969, the binding effect of the settlement ceases or continues to remain binding on the parties unless it is modified either by bilateral agreement or by raising a dispute and getting an award on that point from the competent Labour Court. The Labour Court is of opinion that with the revocation of the binding effect of the settlement by the service of notice the workers were at liberty to revert back to the position prior to the agreement of 20-10-67 arrived at between the company and the workers. It may be stated that there is no dispute regarding the fact that on 20- 10-67 the company and the workers entered into an agreement which should be termed as settlement regarding certain terms and conditions of service and by this agreement the provision for staggered tea-breaks was introduced for the first time. By this process the workers agreed to take their tea-breaks which were prevailing prior to the agreement of 20-10 67 in a different form.
9. Prior to this agreement the entire workers used to take tea-breaks en bloc which resulted in the closure of the machinery during tea-breaks. But by this process of staggered tea-breaks the workers agreed to take the tea-breaks in batches, so that the machinery was not stopped and the production continued. This agreement was under its terms valid for two years. The workers by their notice dated 1-3-69 served on the company expressed the desire not to be bound by this settlement which was arrived at on 20-10-67. This notice was given in compliance with the requirement of law which provides that the settlement arrived at by the parties shall continue even after the expiry of the terms unless two months' notice is given by either party declaring their intention to revoke the settlement. There is no dispute between the parties that the settlement had binding effect for two years from 20-10-67; the notice was served by the Union on 1-3-69 and from 1-5-69 the binding effect of the agreement ceased. The question now falls for consideration is what is the effect of the revocation of the settlement--whether by this revocation the parties are put to the position prior to the settlement or it means that the binding effect of the settlement continues but it is subject to the negotiation and variation either by a bilateral agreement or by raising a dispute and obtaining an award from the Labour Court. The view of the workers, as represented by Mr. Mozammel Huq, and which has found favour with the Labour Court is that with the revocation of the settlement the parties are at liberty to treat as if no settlement existed, so that they can revert back to the position prior to the date of settlement. Mr. Jaffer, the learned Advocate for the petitioner-company on the other hand, submits that that is not the intention and it cannot be the interpretation of the provision of law that with the revocation of the settlement the parties are reverted back to the position prior to the date of settlement.
10. The contentions of both the parties can now we'll be cons sidered by reference to the section itself.
11. The relevant section is section 40(2) of the Industrial Relations Ordinance and it may be quoted as follows :- "(2) A settlement shall be binding for such period as is agreed upon by the parties, and if no such period is agreed upon, for a period of one year from the date on which the memorandum of settlement is signed by the parties to the dispute and shall continue to be binding on the parties after the expiry of the aforesaid period until the expiry of two months from the date on which either party informs the other party in writing of its intention no longer to be bound by the settlement."
12. The relavant provision of the East Pakistan Labour Disputes Act, 1965, which was in operation on the date of settlement was revoked, is to be found in section 15(2) and it may be quoted as follows :- "(2) A settlement shall be binding for such period as is agreed upon by the parties, and if no such period is agreed upon, for a period of one year from the date on which the memorandum of settlement is signed by the parties to the dispute and shall continue to be binding on the parties after the expiry of the aforesaid period, until the expiry of two months from the date on which a notice in writing of an intention to terminate the settlement is given by one of the parties to the other party or parties to the settlement."
13. From a reading of the two provisions it is clear that the language is substantially the same in both the enactments and therefore the principle of interpretation that will be applicable will be the same in both the cases. By section 67 of the Industrial Relations Ordinance, 1969, the East Pakistan Labour Disputes Act, 1965 along with other Acts was repealed but notwithstanding the repeal, a saving clause has been provided in sub-clause (b) of clause (2) which reads as under :- "(2) Notwithstanding the repeal of any law by subsection (1), and without prejudice to the provisions of section 24 of the General Clauses Act, 1897 (X of 1897) r-- (a).........................
14. (b)anything done, rules made, notification or order issued, officer appointed, Court constituted, notice given, proceedings commenced or other actions taken under any law shall be deemed to have been done, made, issued, appointed, constituted, given, commenced or taken, as the case may, under the corresponding provisions of this Ordinance, to the extent of consistency therewith."
15. Section 67 (2) (b) of the Industrial Relations Ordinance clearly shows that whatever agreement was arrived at under the Labour Disputes Act, 1965 will he deemed to have continued and remained valid and operative as is made under the Industrial Relations Ordinance, 1969. It has already been found that both the provisions, one under section 42(2) of the present Ordinance and the other under section 15 (2) of the East Pakistan Labour Disputes Act, 1965 are substantially the same. It, therefore, remains to be seen what is the true interpretation of subsection (2) of section 40 of the Industrial Relations Ordinance, 1969.
16. From a reading of the section it appears that a provision has been made that during the period of settlement which has been agreed upon by the parties it will remain binding on the parties and after the expiry of the period it shall also continue to remain binding on the parties until notice is given by either party to the settlement expressing its intention no longer to be bound by the settlement. The latter clause of section 40 (2) of the Ordinance provides that either party can give notice expressing its intention not to be bound by the settlement. It means that the binding effect of the settlement to the extent that the terms of the settlement cannot be negotiated or agitated during operation of the settlement ceases to be effective. The consequence is that after the period of notice as contemplated in section 40(2) of the Ordinance the terms of the settlement become negotiable and the parties to the settlement can enter into a fresh settlement if they so desire, but it must be mutual. It also means that if there is a want of mutuality then either party can raise it as a dispute and take the matter to the Labour Court for getting a fresh award as the Labour Court shall decide. The interpretation sought to be given on the provisions of section 40(2) of the Ordinance that after the service of notice by either party to the settlement, the parties are placed into the position of status quo ante to the settlement cannot be accepted as it will be contrary to the well-recognised principle of the law that once a contract or settlement is arrived at and acted upon mere passage of time of its operation or any expression of intention unilaterally by one of the parties to the contract or settlement to terminate its binding effect does not and cannot put an end to the obligations flowing therefrom nor are they reverted back to the position of status quo ante. As it is physically impossible for a man to go back in point of time to the period anterior to the date of settlement, similarly it is against all principles of law and contrary to equity and justice that a party to a contract or settlement should be allowed unilaterally to change his position to his advantage and to the disadvantage of the other party simply because the period of settlement has expired, even though the settlement was acted upon. This inter-pretation is in accord with the purpose of maintaining industrial peace and the growth of industrial production; it will also avoid social friction between the workers and the employers to a great extent.
17. Mr. Jaffer in support of his contention has referred to several decisions. He has first cited a decision reported in (1957) 2 L L J 256. It is a decision of the Bombay High Court under the Industrial Disputes Act, 1947, as amended. The fact in that decision was that there was an award given by the Industrial Tribunal. After the period of its expiry, the employer gave a notice expressing his intention to revoke the award. Under the award a worker was entitled to get Rs, 3-6-0 per 1000 bidis (and after the notice of revocation the employer sought to pay the workers at the rate of Rs, 2-8-0 per 1000 bidis. The workers did not accept the position and filed an application under the Payment and Wages Act for the recovery of the balance amount that was payable under the award.
18. The contention of the workers were upheld. The employer filed a writ petition against that decision to the High Court of Bombay contending that with the notice of intention revoking the binding effect of the award he was free to give lesser pay to the workers. This contention was repelled by the Bombay High Court.
19. The provisions of subsection (6) of section 19 of the Industrial Disputes Act, 1947 are as follows :- "Notwithstanding the expiry of the period of operation under subsection (3), the award shall continue to be binding on the parties until a period of two months has elapsed from the date on which notice is given by any party bound by award to the other party or parties intimating its intention to terminate the award."
20. Shah, J. one of the learned Judges of the Division Bench of the Bombay High Court observed as follows :- "When an award is delivered by the industrial tribunal it has the effect of imposing a statutory contract governing the relations of the employer and the employee. It is true that statutory contract may be terminated in the manner prescribed by subsection (6) of section 19. After the statutory contract is terminated by notice the employer by failing to abide by the terms of the award does not incur the penalties provided by the Industrial Disputes Act, nor can the award be enforced in the manner prescribed by section 20 of Industrial Disputes (Appellate Tribunal) Act, 1950. But the termination of the award has, in our judgment, not the effect of extinguishing the rights flowing therefrom. Evidently by the termination of the award the contract of employment is not terminated. The employer and the employee remain master and servant in the industry in which they are engaged, unless by notice the employer has also simultaneously with the termination of the award terminated the employment of the employee. If the employment is not terminated, it is difficult to bold that the right which has been granted under the award automatically ceases to be effective from the date on which notice of termina-tion of the award becomes effective. In our judgment, the effect of the termination of the award is only to prevent the enforcement of the obligations under the award in the manner prescribed, but the rights and obligations which flow from the award are not wiped out."
21. Mr. Jaffer has also referred to a decision of the Supreme Court of India, reported in AIR 1957 SC 38.
22. In this decision also there was an award and binding effect of the award after its expiry under the provision of section 19 (6) of the Industrial Disputes Act, 1947 as amended was in question. In this case, the principle of res judicata was applied to the matters in Industrial Disputes Act with the observation that though the principle is not applicable in terms but it is applicable on principle as it is founded by wisdom which is for all time. Thereafter the following observation was made :- "And there are good reasons why this principle should be applicable to decisions of Industrial Tribunals also. Legislation regulating the relation between Capital and Labour has two objects in view. It seeks to ensure to the workmen who have not the capacity to treat with capital on equal terms, fair returns for their labour. It also seeks to prevent disputes between employer and employees so that production might not be adversely affected and the larger interests of the society might not suffer. Now, if we are to hold that an adjudication loses its force when it is repudiated under section 19 (6) and that the whole controversy is at large, then the result would be that far from reconciling themselves to the award and settling down to work it, either party will treat it as a mere stage in the prosecution of a prolonged struggle, and far from bringing industrial peace, the awards would turn out to be but truces giving the parties breathing time before resuming hostile action with renewed vigour.
23. On the other hand, if we are to regard them as intended to have long term operation and at the same time hold that they are liable to be modified by change in the circumstances on which they are based, both the purposes of the Legislature would be served."
24. Mr. Jaffer has also referred to a decision of our Supreme Court, reported in PLD 1961 SC 393. Mr. Jaffer has relied on the following observation of the Supreme Court which was made in a matter relating to an industrial dispute under the Industrial Disputes Act, 1947 as amended in Pakistan :- "As a last resort learned counsel contends that when parties have entered into an agreement or an award has been delivered, parties should not be allowed to take a position or make a claim inconsistent with the award or the settlement unless they are able to show some change of condition since the award was delivered or the settlement arrived at. It is true that an award delivered on a particular date should be presumed to have taken into consideration all the relevant factors as on that date and should be regarded as the proper decision under the circumstances so that a person who asks for variation should either show some change of circumstances or put forward a case which would ordinarily entitle him to a review of the previous decision. Similar considerations would apply to a settlement unless the settlement was a kind of interim arrangement or was arrived at in view of certain special conditions."
25. The contention of Mr. Jaffer gets ample support from the observations made in the aforesaid decision. We now look to the provisions of section 40 (2) of the Industrial Relations Ordinance which is substantially in the same terms as they were in the Labour Disputes Act, 1965 as well as in the Industrial Disputes Act, 1947, as amended and it is found that the langugage has remained substantially the same all through and the interpretation given by the Indian as well as Pakistani Courts are more or less uniform. The view taken by the Courts is that a party to a dispute which has been terminated either by award or by settlement shall not be allowed to resile from its position unilaterally. Therefore what the law provides by section 40(2) of the Ordinance is that by expressing its intention not to be bound by the award or the settlement after the period of expiry, any of the parties to the settlement is at liberty to negotiate the term which was the subject-matter of the settlement but it does not mean that the rights and obligations arising out of the settlement or the rights and obligations flowing therefrom are wiped out. We have already pointed out that it is physically impossible in point of time to go back to the position anterior to the date of settlement. It is equally not permissible for any of the parties to the settlement by merely expressing its intention unilaterally not to be bound by the settlement arrived at between them. It only means that the parties to the settlement are at liberty to negotiate the terms which were not negotiable during the operation of the settlement. The contention of the learned Advocate for the petitioner therefore must be upheld.
26. It may be stated that the learned Labour Court was wrong in holding that there is a difference between the basic rights which flow from the agreement and the manner and mode of availing the right by either party. It may be stated that the learned Labour Court is not clear in his mind as to what the basic rights are and what is the manner and mode of the enforcement. He has not referred to any provision of law either under the Industrial Relations Ordinance or under the Labour Dispute Act or any other Acts or Ordinances, where such dichotomy of rights has been made into a basic right and the manner of enforcement. The learned Labour Court has a vague manner introduced his private opinion in the interpretation of statute which he is not entitled to do and so he fell into an error. This erroneous decision has affected his finding on the question of strike. The finding of the learned Labour Court that with the expiry of the period of settlement and after the service of notice by the workers expressing their intention not to be bound by the settlement meant that they were not to observe the staggered tea-breaks was wrong. After.the service of notice expressing their desire to revoke the settlement the subject-matter of the staggered tea-breaks became negotiable, but it could not be altered unilaterally by any party. It could only be altered either by agreement entered into by the employer and the workers or by raising it as an industrial dispute and obtaining an award on that point from a competent Labour Court. That not having been done the binding effect of the settlement regarding staggered tea-breaks continues notwithstanding the service of the notice by the worker expressing their intention not to be bound by the agreement dated 20-10- 67.
27. The next question of importance is whether the action of the workers in resorting to staggered tea- breaks en bloc amounts to strike. The petitioner in its petition of complaint under section 34 of the Industrial Relations Ordinance before the Labour Court in paragraph 3 has averred "that since 22nd December 1969 the workers have unilaterally and on the device of their office-bearers of the Union, the second party have reverted back to their old 'tea-breaks' arrangement thereby resulting in the shutting down of machines and in cessation of work as per Appendix 'A' every day under a common understanding and in wilful contravention of the terms and conditions of the agreement quoted above". The reply of the workers in paragraph 15 of the written statement is that "the agreement dated 20-10-67 having ceased to be binding on the parties with effect from 1-5-69, reversion to old tea-break arrangements by the workers thereafter is not a contravention of the said agreement and any loss of production or stoppage of work caused by the workers availing their tea-breaks cannot be termed as strike." From the pleadings it is clear that the workers do not controvert the fact that they have resorted to taking staggered tea-breaks en bloc as given in Annexure 'A' to the petition filed by the company before the Laboure Court. They also do not deny that their taking of tea-breaks en bloc has resulted in the stoppage of machinery and therefore cessation of the work as a whole. All that they contend is that with the expiry of the binding effect of the agreement dated 20-10-67 they are entitled to revert back to their position - prior to the date of the agreement dated 20-10-67. Therefore in fact the position remains that the workers had resorted to take tea-breaks which are known as staggered tea-breaks from 22nd December 1969 resulting in the stoppage of the machinery and cessation of the work. Therefore on question of fact there is no doubt. The only questions that comes up for our consideration is whether this amounts to strike. The definition of strike as given in section 2(xxv) of the Industrial Relations Ordinance is as follows :-- "(xxv) 'strike' means a cessation of work by a body of persons employed in any establishment acting in combination or concerted refusal, or refusal under a common understanding of any number of persons who are or have been so employed to continue to work or to accept employment ;"
28. A plain reading of this subsection means that there must be cessation of work by a body of workers and there must be a combination among them in ceasing to work upon a common understanding.
29. From the facts stated above it is clear that the entire body of workers of the Chittagong Unit of the petitioner-company has ceased to work during the period covered by the staggered tea-breaks and in their written statement they have clearly expressed their mind that they have done 59 wilfully and the belief that after the expiry of the period of settlement they are entitled as of right to go back to the position as was prevailing prior to 20-10-67, namely, the date of settlement. It has been found that the binding effect of the settlement continues. Therefore this action of the workers cannot but be termed as strike. It appears that the Labour Court was under the impression that after the notice of revocation a party is not bound by the settlement and that all the rights and obligations arising out of the settlement are wiped out and the parties are reverted back to the position prior to the date of settlement. It has already been found that this finding of the learned Labour Court is wrong and under this erroneous impression he has come to a finding that the action of the workers is not strike. The defence set up by the workers is also clear ; they assert that the binding effect of the settlement had ceased and so they were entitled to revert back to the position prior to the settlement and as such it is not a strike. They never raised the plea that the manner of their cessation of work en bloc resulting in the stoppage of machinery is not cessation of work which amounts to strike. It must therefore be held that the manner in which the workers have ceased working during staggered tea-breaks amounts to strike. In this regard the relevant clause of the agreement in question as to the staggered tea-breaks may be quoted as follows :- "13(ii) The Union agrees that in the interest of increased production there shall not be any fixed tea- breaks involving stoppage of machines and the workers, who will continue to have tea-breaks, shall avail the breaks in small groups without any interruption in the continuous running of the machines or normal work of their respective departments."
30. From a plain reading of the above terms of the agreement, which we have already found as continuing to be binding on parties, it is clear that any violation of this term will result in the stoppage of machinery and therefore cessation of work. The workers have deliberately brought about the cessation of the working of the machinery which may be for a short period, but nonetheless this strike as it is evident from the definition given in section 2(xxv) of the Ordinance inasmuch as there is no mention of the duration of the period which can be said to be a criterion for determining a strike. The criterion for finding a strike is both subjective and objective. The subjective criterion is that the workers must intend to stop the work and the objective criterion is that this intention, in fact, will bring about stoppage of work. There is no provision for duration of the stoppage. It may be noted that none of the parties led any oral evidence before the Labour Court and from the pleadings and the admitted action of the workers it is found that they intended to resort to staggered tea-breaks en bloc. The petitioner has also pleaded that the workers have done so wilfully to which there is no denial, so that the subjective condition is fully satisfied. That the action of the workers has brought about stoppage of the machinery has been asserted by the petitioner and it has not been denied. Therefore, both the conditions required under the provisions of section 2txxv) of the Ordinance are fully satisfied. So it must be held that the action of the workers in taking staggerad tea-breaks amounts to strike and the learned Labour Court was wrong in not giving a declaration to that effect.
31. Mr. Jaffer has raised another question which is of waiver. According to him, the agreement dated 20-10-67 remained in operation by virtue of its own term for two years and on 1st March 1969 the workers gave notice expressing their intention not to be bound by the settlement. Thereafter on 1st May 1969, they placed a fresh charter of demand. In this charter of demand though there is no reference to the staggered tea-breaks, but the learned Advocate for the petitioner contends that reference to this staggered tea-breaks was made in the forwarding letter accompanying the charter of demands. It has further been contended that the workers by their letter dated 21st August 1969, clearly informed the company that the staggered tea-breaks did form part of the charter of demand. It is the next contention of the petitioner that during the pendency of the application under section 34 of the Ordinance before the Labour Court which was filed on the 24th December 1969 a fresh settlement was arrived at on 9-1-1970 between the company and the workers wherein the workers after agreeing to certain terms and conditions in clear terms stated that they withdrew all other claims, excepting one relating to North Hill Estate. Mr. Jaffer therefore contends that by necessary implication the workers have withdrawn all their claims regarding the staggered tea-breaks by entering into the fresh agreement on 9-1-70. Mr. Mozammel Huq, the learned Advocate for the respondents, has, on the other hand, referred to a letter dated 5th February 1970, which was given by the company after the decision of the Labour Court on 29-1-70 stating that the petitioner is ready to negotiate a final settlement regarding tea-breaks. It may be stated that this fact has arisen after the filing of the application before the Labour Court. This point was not properly mooted before the Labour Court and no decision was given by the Labour Court on the point. It may also be noted that certain evidences are required to be taken before a final judgment can be given as to whether the workers by the letter dated 21st August 1969, did in fact include this question of staggered tea-breaks in their charter of demand or whether the workers when entered into the fresh agreement dated 9th January, 1970, consciously excluded this demand from their charter of demand. We refrain from giving any opinion on this point, and this point again does not clearly fall for our consideration as what we are dealing with is a writ in the nature of certiorari where the order passed by the Labour Court is in question. Therefore, we do not entertain this point of the learned Advocate for the petitioner.
32. Mr. Mozammel Huq has raised other questions before us which may be dealt with one by one.
33. The learned Advocate has raised the question of maintainability of this writ petition in this High Court. His contention is that the order of the Second Labour Court is an award and under the provisions of the Industrial Relations Ordinance there is a provision for appeal and the petitioner not having preferred an appeal this writ petition cannot be maintained. In answer to this Mr. Jaffer has asserted that at the time when this writ petition was moved in this Court the Appellate Tribunal was not constituted and as such though the provision for appeal was there, there being no forum available the petitioner could not avail of the alternative remedy provided under the Ordinance.
34. There is substance in the contention of the learned Advocate for the petitioner and as such it must prevail. There having been no constitution of the Tribunal at the time of moving this High Court the petitioner had no other alternative but to move this Court and as such it cannot be said that this writ petition is not maintainable.
35. Mr. Mozammel Huq also contended that under section 54 of the Factories Act, 1934, the workers were entitled to a larger period of break than what they were actually enjoying and as such this period of staggered tea-breaks cannot be taken to be anything which was granted by the company in excess. This contention is not sustainable in view of the clear admission in the written statement of workers before the Labour Court that the staggered tea-breaks the workers were enjoying were over and above the statutory requirements. Therefore this contention of the learned Advocate for the respondents is of no substance.
36. Mr. Mozammel Huq has next raised a question that the Labour Court has no jurisdiction to entertain the application under section 34 of the Industrial Relations Ordinance. This question was raised before the Labour Court but the Labour Court did not give any decision on that point. The relevant notification is dated 20th March 1969, issued under subsection (1) of section 9 of the East Pakistan Labour Disputes Act, 1965 wherein the jurisdiction was given to the Second Labour Court covering whole of the Chittagong Division and the jurisdiction that was given to the Third Labour Court was whole of the Khulna Division, Narayanganj Sub-Division of the Dacca District, any dispute concerning an industrial unit which does not fall or operate wholely within the jurisdiction of any one of the Courts ; and any dispute concerning two or more industrial units, all of which do not fall or operate wholely within the jurisdiction of any one of the Courts. Mr. Mozammel Huq wants to contend that since the petitioner has another industrial unit in Dacca, it must be deemed that the petitioner has two industrial units and none of which wholely falls within the jurisdiction of either the First or the Second Labour Court and so the Third Labour Court has jurisdiction. This contention is fallacious in view of the fact that the notification refers to an industrial unit and not to an industry or industrial undertaking. The present dispute relates to the factory of the petitioner at Chittagong and this Chittagong Industrial Unit is a complete unit by itself. We hold that the Second Labour Court had jurisdiction to entertain the application under section 34 of the Ordinance.
37. Mr. Mozammel Huq has raised certain subsidiary points. He has raised a question that this application of the petitioner-company was not maintainable as it related to the interpretation of a term of settlement and as such the proper forum under section 50 of the Industrial Relations Ordinance, 1969, was the Tribunal which means the Appellate Tribunal. This contention of the learned Advocate is against the very pleadings of the workers inasmuch as according to the workers they have terminated the binding effect of the settlement. Therefore in the present case there is no question of interpretation of the terms of settlement. This contention of the learned Advocate for the respondent is of no merit and must therefore fail.
38. Mr. Mozammel Huq has next contended that the application under section 34 of the Ordinance was not maintainable in view of the fact that section 34 provides for an application where a party to an Industrial Dispute relating to a matter arising out of any right guaranteed or secured to an employer or workman by or under any law for the time being in force or an award or settlement may apply to the Labour Court for adjudication of the dispute. The contention of the learned Advocate for the respondents is that since no proper dispute was raised no application under section 34 was entertainable. Section 2, subsection (xiii) of the Ordinance defines "Industrial Dispute" to mean "any dispute or difference between employers and employees or between employers and workmen or between workmen and workmen which is connected with the employment or non-employment or the terms of employment or the conditions of work of any person." From the definition of the 'Industrial Dispute' as provided in the Ordinance it is clear that the term 'Industrial Dispute' is wide enough to include a controversy of the present nature, namely, whether with the service of notice by the respondents expressing their intention to revoke the settlement under section 40 (2) of the Ordinance the parties are entitled to revert back to the position prior to the settlement. This dispute is between the employer and the workmen. Section 34 of the Ordinance further provides regarding the term of employment of the workers that any party to an Industrial Dispute relating to a matter arising out of any right guaranteed or secured to an employer or workman by or under any law for the time being in force or an award or settlement may apply to the Labour Court for adjudication of the dispute. In the present case the interpretation of section 40 (2) of the Ordinance is in dispute. No doubt the employer as one of the parties to the settlement has ample right to apply under section 34 of the Ordinance for adjudication of the dispute aforesaid. This contention of the learned Advocate for the respondents also of no merit.
39. The next point urged by Mr. Mozammel Huq is that the Union ought to have been made a party.
40. From the reading of the petition before the Labour Court it is founa that the petitioner has made all the workers parties and has named the office-bearers of the Union specifically as parties representing the workers. Therefore, in our opinion, there is no defect in the frame of the application before the Labour Court.
41. The next contention of the learned Advocate for the respondents is that the settlement dated 20- 10-67 is a 'collective agreement' as defined in section 2(iii) of the Industrial Relations Ordinance and not a settlement as defined in section 2(xxiv) of the Ordinance. The contention is of no merit as section 2(xxiv) clearly provides inter alia that 'settlement' means "a settlement arrived at during the course of a conciliation proceeding, and includes an agreement between an employer and his workmen arrived at otherwise than in the course of any conciliation proceedings." This is a settlement which was arrived at otherwise than in the course of any conciliation proceeding.
42. Further this contention of the learned Advocate for the respondents is of no substance in view of the fact that the settlement was arrived at under the provisions of the East Pakistan Labour Disputes Act, 1965 where there is no such provision as 'collective agreement'. This contention, therefore, fails.
43. There is no other paint for our consideration in this matter.
44. The result, therefore, is that the order of the learned Second Labour Labour Court dated 29th January 1970 passed in Industrial Court of Dispute Case No, 75 of 1969 is declared to without lawful authority and of no legal effect. It is also declared that the action of the workers in discontinuing to work during the staggered tea-breaks period en bloc amounts to strike. The Rule is, therefore, made absolute, but without any order as to costs.
45. SIDDIKY, C. J.--I agree.