' This complaint/petition has been submitted by the General Secretary, Lawrencepur Woollen and Textile Mills Ltd. Mazdoor Union under section 22-A (8) (g) read with regulation 32(2) and section 34 of the I. R.
0., 1969. It has been submitted that the complainant/petitioner is the C. B. A. For the establishment of the respondent and entered into a Settlement on 18th June, 1972 whereby it was agreed in demand No, 8 that the rate of Mutton and Beef will be paisa 20 and 10 respectively in the mills canteen. This settlement was never terminated and was still in force. A demand notice was served by the management on the Union containing a demand to change the rates of the mills canteen.
Since the dispute could not be settled by negotiations, a lock out notice was issued under sections 26 and 28 of the I. R. O., 1969. The petitioner also served demand notice and strike notice. Both the disputes were dealt with by the conciliator but could not be settled. Both the parties submitted their disputes for adjudication under section 32 of the I. R.
0., 1969, before the Labour Court. The disputes were still pending before the Labour Court.
2. It has been submitted by the complainant/petitioner that the respondent without lawful authority issued a notice for general workers based on some Award of the Managing Director. In the said notice all the outstanding disputes under litigation before the Labour Court Rawalpindi are said to have been decided by the respondent management without hearing the petitioner. The so-called award is without legal authority and not an award under the I. R.
0. Because no arbitrator was appointed under section 31 of the said Ordinance. It was further submitted that the respondent has issued two notices whereby Rs, 70 p. m. Is announced to be paid as canteen allowance instead of present canteen facilities and arrears of house allowance and conveyance allowance at the rate of Rs, 30 p.m. For the period from 1st February, 1983 to 30th December, 1983 were to be paid on 28th December, 1983.
3. It has been alleged that the respondent tried its best to get the settlement signed on its own terms by creating the circumstances to compel the office-bearers of the C. B. A. And used intimidation, coercion and pressure by issuing show-cause notices to the office-bearers of the C. B.
A. All these office-bearers are locked out by suspension letters and are not allowed to enter the main gate of the mills. The respondent on the one hand was trying to induce the general workers to accept the payment mentioned above in order to bring an end to the industrial dispute pending and on the other hand pressurizing the C. B. A. By issuing charge-sheets, suspension letters and lock out of the office-bearers. All these acts amount to unfair labour practice under section 15 of the Industrial Relations Ordinance, 1969.
4. The learned counsel for the respondent has submitted preliminary objections on the complaint saying that the petitioner has concealed the factum of litigation going on between each other and the contempt petition against the office-bearers of the union pending in the Court of Mr. Mahmood Akhtar learned Member of this Commission and as such the petitioner has not come to the Court with clean hands and was not entitled to any relief. It has also been submitted that the settlement referred to by the petitioner was terminated by the petitioner itself vide letter, dated 19th June, 1974 and he got the stay order by misrepresentation. The settlement was only in respect of Mutton and Beef and after 1974 mutton was never supplied by the management in the canteen. It has also been pointed out that certain office-bearers of the union who incited 'go slow', held illegal meetings within the premises of the mills and abused and threatened all the senior officers of the mills were charge-sheeted, and enquiries were being held against them.
5. The management denied having committed any unfair labour practice and also pointed out that the petitioner was not an industry-wise trade union or a federation at the national or provincial level and the application under section 34 was not maintainable before the Commission.
It has further been pointed out that the petitioner is estopped by its conduct to challenge the award especially when it has been partly executed and implemented. There was no application for stay under section 22-A (8) (g) and regulation 32(2).
6. I have heard the arguments of the parties on the preliminary objections. The petitioner has in the main body of the complaint alleged acts of unfair labour practice and the application made was, therefore maintainable under the I. R.
0. Before this Commission.
7. The learned counsel for the respondent has submitted that the settlement executed on 18th June, 1972 was cancelled by the union itself vide its letter, dated 19th June, 1974 and as such there was no settlement on the subject nor mutton was thereafter supplied at the canteen. It has further been pointed out that the Management served a demand notice on 7th January, 1983 and a lock out notice on 20th January, 1983 and in these notices one of the demands related to rates of canteen. The petitioner in the meantime also served a demand notice on 1 1 th January, 1982 and a strike notice on 23rd January, 1983. As no settlement could be arrived at, the case was referred to the Labour Court but according to the respondent there was legally no dispute pending in the Labour Court after the Award of the Arbitrator. It has also been submitted by the respondent that the officers of the petitioner union particularly the General Secretary and the President again started negotiations and on 15th December, 1983 the local Management and the C. B. A. Appointed Mr. Hussain Dawood the Managing Director of the Mills to be the sole arbitrator. All this happened in the presence of and with the consent, concurrence and active persuance of the conciliator who was present alongwith Malik Mehrban Khan and other office-bearers of the C. B. A. The learned Member Mr. Mahmood Akhtar who was dealing with the case was informed in writing about the appointment of the arbitrator and it was affirmed by both the parties that they would stand and abide by the award of the arbitrator. The arbitrator after hearing the parties at length gave his award in the presence of both the parties and it was incorrect that the petitioner was not heard.
8. As regard settlement dated 30th December, 1981 which expired on 31st December, 1982 the respondents had agreed to the enhancement by Rs, 15+15 in the house rent and the conveyance allowance respectively. On the expiry of the settlement the management wanted to stop this payment of Rs, 30 but the C. B. A. Attempted to create unrest and the Management, therefore, in order to avoid unpleasantness filed an application under section 34 of the I. R.
0. In the Labour Court, Rawalpindi. The Lahore High Court directed all the workers not to claim Rs, 30 so long as the petition was not decided by the Labour Court. The Management however in the meantime continued depositing the disputed amount in the Labour Court. The C. B. A. Did not respect the order of the High Court and started agitating, firstly, in the shape of meetings within the premises and thereafter instigating the workers to adopt 'go slow'. The stay order was obtained from the N. I. R. C. But this too was violated by the office-bearers of the C. B. A. And the workers at their instance. A contempt petition in this regard was also pending in the N. I. R. C. It was on these allegations that the office-bearers of the C. B. A. Have been charge-sheeted. It was submitted that neither any office-bearer has been locked out nor any industrial dispute is now legally pending and the respondent has neither committed any unfair labour practice nor had intended to do so.
9. The learned counsel for the petitioner submitted that the award given by the Arbitrator was not a valid award on the ground that no formal agreement was signed to the appointment of an arbitrator and that the dispute was pending before the Labour Court Rawalpindi and unless permission was given by that Court an arbitrator could not be appointed. It was further submitted that the documents submitted by the respondent goes to prove that there was verbal agreement to the appointment of an arbitrator and that the arbitrator was appointed to give an award. The Arbitrator was himself the Managing Director of the Mills and he being an occupier and owner was the contesting party and cannot act as an arbitrator. It was further submitted that there should have been a penal appointed by the Provincial Government under section 31 and there should be an agreement to refer the dispute to the Arbitrator. The award was to be announced within 30 days but it was announced within one day and a copy of the same was never supplied to the parties and the award was never published in the Gazette. The parties also have not moved for withdrawal of their disputes pending in the Labour Court. It was further submitted that payment of Rs, 70 which was being allowed has now been withheld and that this Rs, 30 is not the subject-matter of the demand notice but it was adjudicated. It was further submitted that there were two types of arbitration-(1) under the Arbitration Act and (2) under the I. R.
0. And in this case the provisions of I. R.
0. Were not attracted. He cited case law reported in PLD 1977 SC 237 and submitted that the award was null and void.
10. The learned counsel for the respondent however submitted that the C. B. A. Had agreed to the appointment of an arbitrator and now they cannot say that they never agreed to the appointment of arbitrator. The award was, therefore, binding on the parties. He cited the following case law in this connection :-
(1) 1980 PLC 793 ; (2) 1982 PLC 1 ; (3) 1981 SCMR 129 ;(4) PLD 1981 Kar. 730 ; (5) 1981 CLC 379 ; (6)
1981 CLC 423 ;(7) PLD 1981 SC 553 (8) and PLD 1964 BC 475 He further submitted that the Managing Director who gave the award was also Managing Director of a number of industries and he could not be considered to be a party. He submitted that the parties were heard at length and the award was given within one day and it was not necessary that the arbitrator should have spent one month to formulate the award. He further submitted that the petitioner was not an industry-wise trade union, and therefore, he could not come to the Commission under section 34 as they could go to the Labour Court under that section.
11. I have heard the learned counsel at length. Both the parties have made out a case for and against the arbitrator's award and have quoted extensively the case law in this connection. None of the learned counsel has come precisely to the point at issue in this case. The complainant/petitioner has prayed as under :- "It is therefore, prayed that this learned Commission may kindly declare the notice referred above illegal and without lawful authority and to prohibit the management to implement any so-called award and consequent refrain the respondent to stop or withdraw the present canteen facilities to avoid occurrence of unfair labour practice. It is further prayed that the respondent may kindly also be directed to withhold enquiries against the office-bearers of C. B. A. And to lift lock out by withdrawing their suspension orders so that pressure and intimidation for arriving at a settlement may be removed."
12. The point involved in this case is not as to whether the award was legal or void but actually the point for consideration is as to whether the Commission has got the authority to declare an award as illegal or void. The award has been defined under section 2(ii) to mean the determination by a Labour Court, Arbitrator or Appellate Tribunal of any industrial dispute or any matter relating thereto and include an interim award. Section 31 of the I. R.
0. Relates to arbitration and spells out the procedure for appointment of an arbitrator. I would not go into the details whether the parties observed the procedure and whether the award is illegal or otherwise. I would also not discuss the case law cited by the parties in this connection. In this connection the pertinent section is 38(3) which runs as under :- "The Tribunal may on appeal, confirm, set aside, vary or modify the award or decision given under section 25-A or section 34 or sentence passed under clause (e) of subsection (5) of section 35 and shall exercise all the powers conferred by this Ordinance on the Labour Court save as otherwise provided. The decision of the Tribunal shall be delivered as expeditiously as possible within a period of 60 days following the filing of the appeal provided that such decision shall not be rendered valid by reasons of any delay in its delivery."
13. Although no identical Provision as made in section 31 relating to the arbitration has been made under section 22-A which relates to the functions of the Commission, yet in section 22-B(3) which relates to the functions of the benches of Commission it has been provided in clause (b) of that subsection that the benches shall in relation to industry-wise trade unions, federations of such trade unions, federation at the national level and cases referred to the Commission, perform such functions and exercise such powers as are performed and exercised by a Registrar, a Labour Court or a Tribunal in relation to trade unions and federations of trade unions within a province and for this purpose any reference in this Ordinance to a "Registrar", "Labour Court" or as the case may be 'Tribunal' shall be deemed to be a reference to the appropriate Bench of the Commission to which such functions are assigned.
14. Under section 27(2) it has been provided that the Federal Government may by notification in the Official Gazette appoint as many persons as it considers necessary to act as conciliator in such disputes as the N: I. R. C. Is competent to adjudicate and determine in this Ordinance. Section 32(1- A) provides that the party raising a dispute may at any time either before or after the commencement of a strike or lock out make an application to the Labour Court for adjudication of dispute. In the case of industry-wise Trade Union federation of such trade unions and federations at the national level the application shall be made to a bench of the Commission for adjudication of the dispute. If, however, the Federal Government prohibits a strike or lock out, it shall forthwith refer the dispute to the Commission. It has however been provided under section 22-A (8) (c) of the I. R.
0. That the Commission can adjudicate and determine an industrial dispute to which an industr- ywise trade union or a federation of such trade unions is a party and any other industrial dispute which is in the opinion of the Federal Government of national importance and is referred to it by the Government. In all these cases the Commission shall after giving both the parties to the dispute an opportunity of being heard, make such award as it deems fit as expeditiously as possible but not exceeding 30 days from the date on which the dispute was referred to it. Now an appeal against this award can be submitted before a Full Bench of the Commission within 30 days of the issuance of such award as provided under section 22-D of the I. R.
0., 1969.
15. The Lawrencepur Woollen and Textile Mills Mazdoor Union which is the petitioner in this case is not registered as an industry-wise trade union as such the Commission cannot deal with the cases relating to this union except complaints of unfair labour practice. The legality or otherwise of the award given by Mr. Hussain Dawood arbitrator can be questioned before the Labour Appellate Tribunal and the Commission has no jurisdiction to go into this matter.
16. As to the complaint of unfair labour practice, the union has submitted that the respondent tried their best to get the settlement signed on their own terms and created the circumstances to compel the office-bearers of the C. B. A. And used intimidation, coercion and pressure by issuance of show-cause notices to the office-bearers of the C. B. A. The learned counsel for the respondent has submitted an order, dated 26th of January, 1984 passed by my learned brother Mr. Mahmood Akhtar on a contempt application. In this order has referred to an application dated 15th December, 1983 whereby the petitioner had submitted that a compromise has been reached between the parties whereby Mr. Hussain Dawood the Managing Director, Lawrencepur Woollen and Textile Mills will be the sole arbitrator to decide the charter of demands raised by the C. B. A.
Through notice of strike and the employer through lock out notice. The learned counsel for the petitioner has submitted before my learned brother that they are bound by the contents of the application, dated 15th December, 1983. This shows that the office-bearers of the C. B. A. Have never been intimidated or coerced by issuance of show-cause notices to settle the charter of demands.
The respondent himself has submitted that these office-bearers had resorted to go slow and have been charge-sheeted and that enquiries against these office-bearers are still pending. The suspension of a worker and service of the charge-sheet on grounds of misconduct and indiscipline cannot be treated as act of unfair labour practice and the union has, therefore, failed to make out a case of unfair labour practice.
17. In view of the above discussion I hold that the Commission has no jurisdiction to deal with the prayer of setting aside the award of the arbitrator and secondly, no case of unfair labour practice has been made out. In view of these observations I dismiss the complaint/petition and recall the stay order, dated 28th December, 1983.