1. K. HOSSAIN, J.---The petitioner, the Pakistan Tobacco Company Ltd. Labour Union, Dacca has challenged the order dated 14-2-70 passed by the First Labour Court as published in the daily newspaper, The Pakistan Observer in Industrial Relation Case No, 12 of 1970 prohibiting the President of the Union and 18 office-bearers of the said Union from continuing the general strike in the factory of the Company at Mohakhali, Dacca.
2. The facts for the disposal of the Rule as appear from the affidavits of the parties are that the petitioner is the registered Union of the Company, Pakistan Tobacco Company Ltd. of its factory at Dacca. On 8-8-1969 a Memorandum of Agreement as a settlement was signed by the Company Union incorporating a long list of demands of the workers (Annexure 'A' to the Affidavit-in- Opposition). This agreement was to remain in operation for two years and there is a recital of undertaking by the Union not to make further demands during the operative period of the agreement. On 12-10-69 the Union, after its change of office-bearers by a meeting decided not to observe the working of additional 15 minutes of work per shift, which was one of the terms of the agreement. On 9-11-69 the Union by a letter informed the Company of its decision not to maintain the 15 minutes additional hours of work and from 11-11-69 ceased working the additional 4 hours a week. On 22-11-69 the Union submitted to the Company a fresh charter of demands. On 28-11-69 the Union by a letter informed the Company that the settlement dated 8-8-69 was void and not binding on the Union upon certain reasons. On 29-12-69 the workers started restoring to 15 minutes tea break which is a condition of the settlement. The company by a letter dated 3-1 70 intimated the Union regarding the violation of the term of Settlement, to which the Union replied by letter dated 5-1-70 stating the settlement to be void and served a strike notice, on 13-1-70 informing their decision to go on strike from 9-2-70. On 15-1-70 the Company filed an application under section 34 of the Industrial Relations Ordinance, 1969 before the First Labour Court which was registered as I. R.
3. Case No, 3 of 1970 against the Union and its office-bearer for specific violation by cessation of work for 15 minutes as tea break and also against the total repudiation of the settlement by the threatened strike. On 16-1-70 the said Labour Court issued show-cause notice and also passed interim order prohibiting cessation of work of 15 minutes tea break. It may be stated the said show- cause notice and interim order was published in Morning News and Ittefaq two daily Newspapers.
4. On 19-1-70 the Company also informed the Joint Director of Labour intimating him about the violation of the settlement, and of the strike. Under the provisions of the Ordinance, the Conciliator by a letter dated 27-1-70 informed that a meeting for conciliation will be held on 30-1-70.
5. Thereafter on 30-1-70, 4-2-70 and 7-2-70 meetings were held but both the attempts at conciliation and for agreement to refer the matter to an Arbitrator failed. On 31-1-70 the Labour Court made its interim order passed on 15-1-70 absolute, and the said order was published on 2-2-70 in the Morning News and Ittefaq, the two daily Newspapers. From 9-2-70 in pursuance of the strike notice dated 13-1-70 the workers went on strike. On 12-2-70 the Company filed another application under sections 34 and 45 of the Ordinance before the said Labour Court being I. R. Case No, 12 of 1970 covering substantially the same matters as made in Company's application filed on 15-1-70 and prayed for prohibiting the continuance of the strike commenced on 9-2-70. On 14-2-70 the Labour Court issued a show-cause notice and passed an ex parte interim order prohibiting the continuance of the strike. The show-cause notice and interim order dated 14-2-70 were published in the Pakistan Observer, Dainik Pakistan and Ittefaq but no notice was served on the Union or its office-bearers, as the personal service was exempted by the Court. As against this order the petitioner-Union has obtained the present rule on 23-2-70.
6. Mr. Shah Md. Azizur Rahman, the learned Advocate for the petitioner has first contended that the Labour Court is not constituted in compliance within the provisions of the Ordinance and therefore had no jurisdiction to entertain the application under section 34 or pass order under section 45 of the Ordinance. According to the learned Advocate there is material change in the language of the East Pakistan Labour Disputes Act, 1965 and that of the Ordinance of 1969 (hereinafter referred to as the Ordinance) inasmuch as under the provisions of the Act of 1965 in the body of the Act there is a provision of two panels of not more than five persons, consisting of representatives of employers and the workmen, there is further provision for reconstitution of the panels after two years: the Chairman had been given the power of selecting one person from each of the two panels to constitute the Court; whereas, as according to the said learned Advocate, in the present Ordinance, the members are to be appointed by the Provincial Government there is no provision for panels of the representatives, these representatives of employers and workmen are to be appointed in consultation with the employers and workmen and that there is no provision of two years duration regarding the representatives. The further contention of the learned Advocates is that the Rules framed in 1960 under the provisions of Industrial Disputes Ordinance, 1959 were inconsistent to the extent of the framing of the panels, the selection by the Chairman of the representatives and period of the membership of the representatives with the provisions of the Act of 1965 and so these rules were not saved on the repeal of the Industrial Disputes Ordinance, 1959 by the saving clause in section 44 of the Act of 1965. Dr. Kamal Hossain has contended to the contrary.
7. These contentions need be considered. It may be stated that the Industrial Relations Ordinance, 1969 has repealed the East Pakistan Labour Disputes Act, 1965, which again repealed Industrial Disputes Ordinance, 1959 but the rules framed in 1960 under Industrial Disputes Ordinance, 1959 were saved by the Act of 1965 and no new rules were framed under the said Act of 1965 so that on repeal of the Act of 1965 by the present Ordinance saving all rules, order etc. under the Act of 1965, the rules framed in 1960 under the Industrial Disputes Ordinance, 1959 are still continuing and operative.
8. It may be stated that in a decision reported in Tames Finlay & Co. Ltd. v. Aminul Islam it has been held by this Court that the Rules framed under Industrial Disputes Ordinance, 1959 were continuing and operative under the Act of 1965. On the point of two panels constituted under Rules framed under Industrial Disputes Ordinance, 1959 such a question was raised under the Act of 1965 and a Division Bench of this High Court in an unreported decision dated 10-1-69 in Petitions Nos. 106, 107 and 108 of 1968 has held inter alia as follows : "In addition to the above submissions of Mr. Khandkar with regard to the legality of the Court, he further contended that the two panels contemplated to be constituted in the prescribed manner as contemplated by subsection (2) thereof having not been constituted under Act VI of 1965, and the members representing labour and the employer having been drawn from the panels constituted under the Industrial Disputes Ordinance, 1959, the Labour Court was on this count too not properly constituted. It is admitted that the two panels were con-stituted by the Government under the Industrial Disputes Ordinance of 1959 and those two panels were saved by virtue of the saving clause of the Act. And from time to time the Government was nominating the members to those two panels as and when necessity arose and the two members who sat in the Second Labour Court to try the present petitions were from those two panels which were existing from before. As such we find no illegality in the constitution of this Court on this count either."
9. From this decision it is found that Panels of representatives formed under the Rules framed under Industrial Disputes Ordinance, 1959 have been held to be valid and operative under the Act of 1965.
10. At this stage it will be worthwhile to look into the relevant provisions of the said statutes in order to appreciate the contentions of the learned Advocates of both the parties.
11. The relevant provisions inter alia of Industrial Disputes Ordinance, 1959 is section 7(2) and (4) which may be quoted as follows : "Section 7.--(1) .......................
12. (2)An Industrial Court shall consist of a Chairman and two members to advise the Chairman one of the members to represent the employers and the other to represent the workmen, all being appointed by the appropriate Government.
13. (3)........................................................
14. (4)The members shall be appointed for a period of thre years in consultation with the employers and workmen on expiry of the said period, be eligible for reappointment for a further period not exceeding three years."
15. The corresponding provisions in the Act of 1965 are in section 9 which may be quoted below : "Section 9.--(1) .................................
16. (2)A Labour Court shall consist of a Chairman and two members to advise the Chairman, one to represent the employers and the other to represent the workers, appointed in the manner hereinafter provided.
17. (3)........................................................
18. (4)The Provincial Government shall constitute, in the prescribed manner, by Notification in the official Gazette, two panels, one of which shall consist of representatives of employers and the other of representatives of the workers each panel consisting of not more than five persons : Provided that the Provincial Government shall reconstitute such panels after every two years, but the members of the panel notwithstanding the expiry of the said period of two years, shall continue on the panels till new panels are constituted and notified in the official Gazette: Provided further that members of the panels shall be eligible for reappointment for a period not exceeding two years at a time.1 (5)The Chairman shall, for adjudication, enquiry, determination or disposal of a case relating to a specific labour dispute, select one person from each of the two panels and persons so selected together with the Chairman shall be deemed to have constituted a Court in respect of that specific labour dispute : Provided that the Chairman may select any member from either of the panels as a member of the Court in respect of more than one case pending before the Court."
19. The present provisions in the Industrial Relations Ordinance, 1969 are in section 35 which may be quoted below:-- "Section 35.--(1) .....................................
20. (2)A Labour Court shall consist of a Chairman and members to advise the Chairman, one of the members to represent the employers and the other to represent the workmen, all being appointed by the Provincial Government.
21. (3).......................................
(4) The members shall be appointed in consultation with the employers and workmen in such manner and on such terms and conditions as may be prescribed."
22. The relevant Rule framed in 1960 under the Industrial Disputes Ordinance, 1959 is Rule No, 28, the material portions may be cited :- Rules 28.--(1) The members of Industrial Court shall be selected by the Provincial Government from the panel of names prepared by the Labour Commissioner.
23. (2)The Labour Commissioner, shall ask the representative organizations of employers and workmen to nominate their representatives for appointment as members of the Court. The Labour Commissioner shall select such persons as members who, in his opinion, enjoy the support of the majority of those they are required to represent, and are also otherwise suitable for appointment as members.
24. (3)..........................................
25. (4).........................................
26. (5).........................................
27. (6)Any member nominated to fill a casual vacancy shall hold office only for the unexpired portion of the term of office of his predecessor."
28. From a reading of the above provisions of the different statutes it is found that the language of the section 7 of the Industrial Disputes Ordinance, 1959 and that of section 35 of the present Ordinance is substantially the same : there is only the inconsequential change of language between the two inasmuch as in section 7(2) of the Ordinance of 1959 the words are appropriate Government and in section 35(2), the Provincial Government: the other inconsequential change of langnage is that in section 7(4) of the Ordinance of 1959 a three years period for the members have been provided with option of their re-eligibility for a further period of three years, but in section 35(4) of the present Ordinance, there is no provision fixing the period of the members.
29. The change referred to above in the first case makes no difference in view of the fact that appropriate Government under the Ordinance of 1959 means Provincial Government. The second change of language in section 7(4) of Ordinance of 1959 and section 35(4) of the present Ordinance is not only inconsequential but no bar has been fixed with regard to the period of membership in the present Ordinance and it has been left to the Rule-making authorities to prescribe the details and so if a rule analogous to rule 28 is framed, there is no wording in the present Ordinance making the said Rule inconsistent with the present Ordinance. That being the position, Rules framed under Ordinance, 1959 as continued under the present Ordinance are valid.
30. The other contention of the learned Advocate for the petitioner that the rule 28 was inconsistent with the provision of section 9(4) of the Act of 1965 and therefore it did not survive under the saving clause at least to that extent, is not tenable. First the said Rule is not inconsistent with the provisions of the present Ordinance. Secondly there is no inconsistency also with the provisions of the Act of 1965 inasmuch as the provision for two panels is there and only for consultation of the wishes of the employers and the workers that Labour Commissioner is assigned the said function but the selection and appointment are to be made by the Provincial Government; the period fixed in the Act of 1965 to the members is different but not inconsistent. Thirdly in the decision given in Petitions Nos. 106, 107 and 108 of 1968 as mentioned earlier the panel framed under the Ordinance of 1959 had been found to be valid under the Act of 1965.
31. Another contention of the learned Advocate for the petitioner that there is an inconsistency between the Act of 1965 and the present Ordinance is that under the Act of 1965, the Chairman is to choose two representatives, whereas in the present Ordinance the Provincial Government are to appoint those representatives. It makes no material difference where the panel is prepared by the Provincial Government from which the Chairman chooses the representatives and the appointment of representatives by the Provincial Government, the only difference is that in the former case the entire panel is appointed by the Provincial Government whereas in the later case only the two representatives are appointed by the Provincial Government. This difference is more on the mode and manner of appointing the representatives, than either the jurisdiction or the constitution of the Court. In either case the constitution of the Court is the same viz. a Chairman and two members, one representing the employers, the other the workmen. The difference if at all are of minor and inconsequential nature relating to mere details of procedure rather than of substance.
32. From the order sheet Annexure J to the affidavit-in-opposition it appears that the Labour Court consists of the Chairman and the two representatives, one of the employers, the other of the workmen. There is therefore no defect in the constitution of the Labour Court as provided in section 35(2) of the present Ordinance.
33. This contention of the learned Advocate for the petitioner therefore fails. The next contention of the learned Advocate for the petitioner is that under the provisions of the present Ordinance, the stages of negotiation, conciliation and referring the dispute to the arbitrator having failed on their fresh charter of demand submitted on 22-11-69 the workmen under section 32 have the right to go on strike and as such the application of the Company under sections 34 and 45 of the Ordinance is not entertainable. He has further contended that the settlement dated 8-8-69 is void and inoperative and not binding upon the workers and that the Company's application on 15-1-70 before the Labour Court regarding the cessation of work for 15 minutes relates to a different dispute than the disputes that arose on the submission of fresh charter of demand by the Union on 22-11- 69 and this charter of demand has no relation to the settlement dated 8-8-69 at all.
34. Dr. Kamal Hossain the learned Advocate for the respondent-Company has in reply contended that it is not correct that the charter of demands of 22-11-69 fresh demands and have no relation to the settlement dated 8-8,
69. On the contrary most of the demands are covered by the said settlement which is binding on the parties for two years in terms of the settlement. He has further contended that the Union gave up its other claims when settlement was arrived at on 8-8-69 and gave a clear undertaking that no fresh demand would be made during the operative period of settlement.
35. His contention is that the application filed before the Labour Court on 15-1-70 is substantially the same as that one made on 12-2-70. He has also contended that the strike is illegal under section 46 (1) (d) of the Ordinance He further contends that there are matters for Labour Court, to decide.
36. Regarding the conflicting contentions of the parties before us we refrain from giving any opinion of the merit of either of them, since it is the Labour Court under section 34 of the Act to decide the binding effect of the settlement or otherwise and on this decision will depend the validity or invalidity of the strike initiated and continued by the Union. It is held that Labour Court under section 34 of the Ordinance has the jurisdiction to decide the dispute of the present nature and so this contention of the learned Advocate for the petitioner fails.
37. Lastly it has been urged by the learned Advocate for the petitioner that the Labour Court has no power to pass ad interim injunction in the shape of prohibitory order. He contends in any event the ex parte order of injunction passed on 14-2-70 without issue or service of notice is illegal and not binding on the Union and its office-bearers. He has cited PLD 1958 Lah. 455 in support of the contention that due service of summons is a mandatory requirement of law.
38. Dr. Kamal Hossain in reply has asserted that the Labour Court has jurisdiction to pass ad interim order and that notice has been sought to be served by publication of it in the daily Newspaper and in any event on 23-2-70 when this writ petition was sworn annexing a copy of the Pakistan Observer containing the notice, it should be deemed that from that day the office-bearers of the Union had notice of the said ad interim order and they not having obeyed the order by joining the work cannot raise this point or made a grievance of it. He has cited.
39. PLD 1968 Dacca 76 and PLD 1964 SC 475. The first part of the contention of the learned Advocate for the petitioner is difficult to uphold.
40. Section 36(2) of the determining provides that the Labour Court for adjudicating and Labour determining any industrial dispute be deemed to be a civil Court of Court and shall have same power as are vested in such Court East Pak. under the Code of Civil Procedure. Section 45 (1) provides -- Inter alia that when a strike or lock out in pursuance of an industrial dispute has already commenced and is in existence at the time when in respect of such industrial dispute, there is made to or is pending before a Labour Court inter alia an application under section 34, the Labour Court may, by an order in writing, prohibit the continuance of the strike or lock out. From a reading of the above provisions there cannot be any manner of doubt about the jurisdiction of the Labour Court to pass an ad interim order.
41. This brings us to the second part of the contention of the learned Advocate for the petitioner. It may be one thing that the Labour Court has jurisdiction to pass an ad interim order but it is completely different matter the manner in which it is being exercised. In this connection it may be stated the rule 33 of the Rules formed in 1960 which is operative under the present Ordinance provides that any summons or notice may be served by registered post or by special messenger or through the parties at their own risk. From the order dated 14-2-70 it appears that in the present case on the representation of the Company no notice was at all issued or sought to be served in any of the manner provided in rule 33. On the contrary it is found the service of notice was altogether dispensed with on the ground that the parties on the proceedings might avoid personal service. It is strange that without even attempting to serve the notice when the addresses were given of the parties in the application under section 34, the dispensing of the service of notice was done on the mere suspicion of their avoidance of service. This order is based on mere suspicion and not on any evidence on record and no Court, act in such unjust or arbitrary manner. No reason has been assigned why any of the three modes of service provided in rule 33 could not be complied with.
42. Nothing has been avoid what was the impediment for sending notice either by registered post or by special messenger or what was there that the Company could not serve the notice on its own workers. The decisions relied on by Dr. Kamal Hossain have no application to the facts of the present case as in those reported decisions notices were issued but were not served and in that context knowledge of notice or the order otherwise becoming known to the party were held in the peculiar circumstances of each case to be not invalid due to no-service. In the present case no notice at all has been issued or served in the manner provided in rule 33. What has been done in the publication of the interim order in the daily Newspaper. There is no such provision in rule 33.
43. Apart from this had this publication been made simultaneously be complying with any of the modes provided in rule 33, the contention of Dr. Kamal Hossain about the Union or its office- bearers coming to know of the prohibitory order otherwise would have some foundation.
44. It may be noted that the disobedience to this prohibitory order attracts the penal provisions of the Act and inconformity with the well-accepted cannon of strict interpretation of penal statutes, these provisions should be given strict construction and in favour of the person liable to penal action.
45. There is another aspect of the matter in that there is a difference between failure of service and total no-service. The present case is one of non-service and anagolous to suppression of summons and in such circumstances the petitioner and its other office-bearer cannot be held to be bound by such ex parte prohibitory order in the particular circumstances of the case.
46. It may of course be stated that the Labour Court may, if it so thinks fit, issue a fresh prohibitory order after giving due notice in the manner provided in rule 33. No other point remains for consideration for the disposal of the present rule.
47. The result therefore is that this application succeeds in part. It is declared that the order dated 14- 2-70, passed by the First Labour Court, Dacca to the extent that the interim order issued prohibiting the petitioner from continuing the general strike in the factory of the Pakistan Tobacco Company Ltd., Mahakhali, Dacca to be without lawful authority and of no legal effect.
48. The Rule is disposed of in these terms. There will be no order as to cost in this petition.
49. SIDDIKY, C. J.--I agree. A. E. PLD 1969 Dacca 571