M.S.H.QURAISHI (CHAIRMAN).--This appeal has been heard under subsection (4) of Section 22-B of IRO, 1969 in the absence of third learned Member Mr. Ashraf Ali, J.S. Labour who is out of country.
2. The facts giving rise to this appeal are that while the award of the 4th Wage Commission for Banks, made in June, 1984, was still in force, the Allied Bank Staff Union Lahore served a notice of demands dated 6-5-1985 upon the Management of Allied Bank of Pakistan Limited, followed by a strike notice dated 23-5-1985. During the proceedings before the Conciliator in connection with the said strike notice, the Union openly threatened the Management that if the demands were not met by 9-10-1985, they would proceed on strike from 10-10-1985, which date was extended to 15-10- 1985. The Bank, thereupon, moved an application under Regulation 32 of the National Industrial Relations Commission (Procedure & Functions) Regulations, 1973, against the President and the General Secretary of the said Union asserting that the Union was not a legally or validly constituted union, that the Bank being one Establishment having its Branches spread throughout the country, cannot have any Collective Bargaining Agent at any local level, that after the promulgation of the Award of the Wage Commission, no demand notice or strike notice could be addressed and that the Union could present their charter of demands to the Wage Commission itself. It was further submitted that the Union had been displaying posters in all Branches, Zonal Office and the Circle Office of the Bank in Lahore, which contained derogatory and instigative remarks and that the Union was also holding press conferences and managing publication of derogatory and instigative material in various newspapers. The Bank considered that the demand notice and the strike notice were illegal and intended only to pressurise the Management into acceptance of the illegal and unjustified demands. It therefore, prayed that the Union be directed
(a) not to commit any act of unfair labour practice;
(b) not to proceed on any strike on 10-10-1985 and/or thereafter;
(c) to remove all the posters displayed by them in all the branches, Zonal Offices and Circle offices of the bank situated at Lahore; and
(d) not to call any press conferences expressing any derogatory or instigative material.
3. An interim order was passed by the Single Bench on 10-10-1985 directing the Union and through them all the workers "not to commit any act of unfair labour practice or to hold any press conference or publish any derogatory and instigative material in the newspapers and to behave in a manner calculated to avoid occurrence of unfair labour practice and not to proceed on strike and to remove the posters displayed by them in various branches and offices of the bank". The order was confirmed on 26-1-1986 in the absence of the Union. The matter was however, reopened on the application of the Union and after hearing the parties, the learned Bench came to the view that the Award could not over-ride the provisions of the Industrial Relations Ordinance, 1969, conferring right on the workers of the Bank to form unions and to act as Collective Bargaining Agents, and other rights, that by appointing the Wage Commission, the law had not intended to curb trade union activities and that therefore, it was not fair to ask the local unions to wait for the constitution of a new Wage Commission in order to press their demands. On this view of the matter, the Bench recalled the Prohibitory order. Hence this appeal by the Bank.
4. Arguments in the appeal centered round the following two points, other points having been given up
(i) Whether demands can be presented to the Management during the period in which the award given by the last Wage Commission is in force, and
(ii) Whether in the presence of a Collective Bargaining Agent at the national level registered with the NIRC, a Trade Union can be registered or a CBA certified by the Registrar Trade Unions and in any case, can such Trade Union or CBA raise demand.
5. A Wage Commission is constituted by the Federal Government in accordance with the provision of Section 38-A of the IRO, 1969 for "fixing rates of wages and determining "all the other terms and conditions of service, in accordance with the provision of this Ordinance in respect of the workers of a bank-------------" In fixing rates of wages and determining other terms and conditions of service of workers, the Wage Commission under Section 38-B "may take into consideration the cost of living, the prevalent rates of wages of comparable employments, the circumstances relating to the industry in different regions of the country and any other circumstances which to the Wage Commission may seem relevant". The Award of the Commission is published under Section 38-C and remains in force for three years or until it is modified or varied by a later decision of the Wage Commission.
6. In this background of the very comprehensive nature of the terms of reference of the Wage Commission declared by law, we have to construe the provisions of subsections (3) and (4) of Section 38-C which are relevant to the determination of the first point raised before us. These provisions read
(3) No industrial dispute shall be raised in respect of any matter which is under consideration of the Wage Commission nor shall any dispute be raised in respect of any matter which the decision of that Commission is in operation.
(4) Any industrial dispute in respect of any matter which is under consideration of the Wages which may be pending before the National Industries Relations Commission or any Labour Court or Tribunal shall abate.
The above provisions rule out the raising of any industrial dispute in respect of any matter which is under consideration of the Wage Commission and the continuing of any pending industrial dispute in respect of any such matter, which must abate. The bar to the raising of an industrial dispute even after the award has been made, continues in respect of any matter on which -the decision of that Commission is in operation.
7. These provisions which were added by Ord. XIX of 1974 and later by Act XVI of 1975 are in extension of the provision of the Section 46(1d) which declares a strike or lock out to be illegal if the same is "declared, commenced or continued during the period in which a settlement or award is in operation, in respect of any of the matters covered by a settlement or award". Provisions similar to that contained in Section 46(1d) had existed in the predecessor legislations too, vide Section 23(c) of the Industrial Disputes Act, 1947 and Section 19(c) of the Industrial Disputes Ordinance, 1959, which provisions were interpreted to mean that during the period in which a settlement or award is in operation, a strike or lock-out was barred only in respect of any of the matters covered by the settlement or award but was permissible in respect of other matters. In this connection, I may refer to an Indian decision "Workmen of Sri Hanuman Jute-Mills v. Sri Hanuman Jute Mills reported in 1953-54 5 F.J.R. 546. As the words used in subsection (3) of Section 38-C are similar, there is no reason why the same construction should not be put on them, that is, the bar in subsection (3) of Section 38-C would operate to the raising of an industrial dispute only "in respect of any matter" on which the award of the Commission is in operation and an industrial dispute in respect of any other matter is not to be held barred.
8. Mr. Mahmood A. Ghani appearing for the appellant Bank, nevertheless, argued that by the scheme of the law, the raising of a dispute during the operation of an award of the Commission, on any matter whatsoever is to be taken as barred; that the provision of subsection (4) of Section 38- C which directed the abatement of pending disputes in respect of matters under consideration of Wage Commission, was relatable only to the First Wage Commission because at that stage no award of a Wage Commission was in operation and that once an award has come into force, the question of raising an industrial dispute during the period of award was barred. In support of his arguments, he heavily relied on the broad nature of the terms of reference of the Wage Commission under the law and the principles of constructive res-judicata contained under Section 11 and Order II Rule 2 CPC. He submitted that once a Wage Commission is constituted it is competent to go into all matters relating to wages and conditions of service of the workers, that it is, even otherwise, open to the workers through their Trade Unions or Collective Bargaining Agents to raise any matter concerning their wages and conditions of service before the Wage Commission and that if they fail to do so, they must be deemed precluded from raising the same until another Wage Commission is constituted.
9. The arguments were however, refuted by Mr. Aitzaz Ehsan, counsel for the respondents, who insisted that the bar operated strictly in regard to matters on which a decision of the Commission was in operation and not in respect of any other matter. He disagreed that the provision of subsection (4) of Section 38-C applied only to the First Wage Commission. On the other hand, he drew support from subsection (4) to assert that the existence of an Industrial dispute at a time when Wage Commission is constituted, is very much envisaged by the relevant law, which meant that raising of Industrial dispute even during the period of operation of the previous award was permissible in respect of any matter to which the bar under subsection (3), did not apply.
According to him, even such disputes would, upon the constitution of a new Wage Commission not abate unless they pertained to a matter under consideration of the newly constituted Wage Commission. He, therefore, maintained that the raising industrial dispute, unless expressly barred by subsection (3) or made abatable by subsection (4) of Section 38-C, which provisions are to be construed strictly, is permissible. He submitted that as a considerable period of time elapses before a new Wage Commission is constituted, new points may arise for the workers which were not present or foreseen at the time of the previous Commission, which may justify the raising of demand and entering into bargaining. His case was that the setting up of Wage Commissions from time to time did not totally deprive the workers of their normal trade union activity including raising of demands and bargaining in the interregnum.
10. In support of his contentions Mr. Mahmood A . Ghani had invited our attention to paragraphs 49 and 50 of the report of the First Wage Commission which read as follows
49. The appointment of Wage Commission is intended to promote industrial peace and harmony in the nationalised banks and financial institutions. It is no longer necessary for the managements and workmen to waste their precious time in discussing charters of demands every now and then.
The Wage Commission will, no doubt, also do their best to remove ugly disparities from the were structure and other terms and conditions of service of the 'workers' of banks which are a legacy inherited from the pre-nationalisation period. It will also, indeed, streamline and rationalise the were structure and terms and conditions of service of the 'workers' concerned. The decision of the Wage Commission shall remain in force for a period of three years or until it is modified or varied by a subsequent decision of the Wage Commission. During this period, the managements would, no doubt, have the freedom to keep the position under review to assess as to what further improvements or changes were justified. In this way, both the workmen and the managements would be able to visualise their future prospects.
50. The preceding paragraph briefly portrays the harmonious and peaceful relationship that would ensue between the workmen and the managements, consequent upon the constitution of Wage Commission. In such circumstances the need, on the part of employees unions of banks and financial institutions, to have to present separate charters of demands, will stand obviated which course, otherwise, would have disturbed the industrial peace and caused unrest amongst the 'workers'.
He also referred to paragraph 13 of the Award of the Second Wage Commission in which, too, similar views had been expressed in the following words
13. Collective Bargaining Rights: Almost all the employees' unions demanded that their right of collective bargaining must be restored. The demand is based to a certain extent on misconception. Their right to collective bargaining has not been affected. The only .Change brought about is that instead of talking to the employers (managements) they are now talking to the Commission in a calm and peaceful atmosphere for their terms and conditions. The Commission feels that the very purpose of setting up a high powered independent Wage Commission periodically is to settle the differences between the employers and the employees for a reasonable period so that the institutions may carry on their work in peace. It, therefore, seems incongruous to think that in spite of the labours of the Commission and the time and money spent on it a state of confrontation should still be allowed to prevail in the institutions.
Both the Commissions, thus, seem to have been of the view that the purpose of setting up of the Commission was to obviate the necessity of discussing or bargaining on charter of demands every now and then and to settle the differences between the employers and the employees for a reasonable period so that the Banking Institutions could carry on their work in peace. While the First Wage Commission thought that with the establishment of Wage Commission it was "no longer necessary for the parties to waste their precious time in discussing their charter of demands every now and then"; to the Second Wage Commission, it seemed "incongruous that inspite of the labours of the Commission and the time and money spent on it, a state of confrontation should still be allowed to prevail in the institutions". The first two Commissions thus declared themselves against raising of any industrial dispute after the Wage Commission had given an award and during the period of operation of the award.
11. Nevertheless, in order to appreciate the arguments advanced by both sides, it is necessary to keep the relevant words of the law before us. These words prohibit the raising of industrial dispute "in respect of any matter on which a decision of that Commission is in operation". The words "any matter" will obviously include matter which has been considered for the purpose of the decision of the Wage Commission irrespective of the fact whether the demand before the Commission had been accepted or rejected partly or wholly.
12. In this connection, it would be relevant to see the questionnaire which had been sent out by the last Wage Commission to the employees Unions. Item 5 asked: "To what extent and in what respect in your opinion, the financial terms of the Wage Commission Award, 1981 need be updated in view of the changed socio-economic conditions? Please give detailed justification and indicate financial impact".
The last item that is item No.21 broadly asked "Have you any other concrete suggestions for the consideration of the present Wage Commission?
If so, please spell them out and give justification for them together with their financial effect".
The questionnaire had been sent out to as many as 142 employees' Unions recognised as CBAs and good many of them had interviewed the Commission and produced evidence in support of their respective proposals. It is thus clear that the 4th Wage Commission had kept its door were open to any suggestion made on behalf of the workers.
13. In such situation, is it open to the workers to turn around after the Commission has given its award and raise demands which they could have but had not raised before the Commission or if raised had been rejected expressly or impliedly. In this connection, it will be relevant to refer to the observations made by the Industrial Court of West Pakistan headed by Mr.Muhammad Shafi, Chairman in Abdul Hamid and others v. M/s Firdous Tanneries Ltd. Muridke 1962 PLC 1050: "It is my considered opinion that the employees when they make certain demands on the employer must include in the case public utility service concerned, all their claims which they are entitled to make at the time in their strike notice. Where they omit to include certain demand in the strike notice or intentionally relinquish any portion of the demand the employees should not afterwards in respect of the demand so omitted or relinquished be entitled to serve a fresh strike notice so long as the settlement arrived at or the award given as a consequence of such strike notice is in operation. It will be an abuse of the process of law if the employees are given the right to agitate their demands, one by one by giving separate strike notice for each demand. In such an eventuality the disputes between the employers and the employees will never be settled and the purpose of law that a peaceful atmosphere be created in the public utility service and the dispute avoided so that such service may be able to run efficiently and continuously will be completely defeated. I am prepared to concede to the employees a right to agitate the issues covered by or omitted from the settlement or the award if the circumstances have materially changed but if the circumstances remain the same then both in equity and in law the employees should not be allowed to agitate those issues or raise fresh issues which were available to them at the time when they raised the issues but they intentionally omitted to do so".
The succeeding Industrial Court headed by Mr. Khurshid Zaman in Sind Cement Workers Union v.
Rohri Cement Works, 1963 PLC 546 had also fully agreed with the above views.
14. In a subsequent case reported as 1965 PLC 356, on the question whether during the operative period of a previous award resulting from a dispute between the employees union and the Management, fresh demands could be submitted for determination and adjudication of the Industrial Court under section 5(5) of the Industrial Disputes Ordinance, 1959, it had been ruled that Order II, Rule 2 C.P.C. Was not applicable to disputes under the Industrial Disputes Ordinance and that the workmen "were not debarred from raising new demands although they might have omitted to raise demands earlier". But this view was not accepted by the High Court of West Pakistan in Crescent Pak Soap and Oil Mills Labour Union v. M/s Crescent Pak Soap and Oil Mills and others reported as 1968 PLC 87 and the earlier views in 1962 PLC 1050 and 1963 PLC 546, as already cited, were followed and it was observed that "The principles of Order II, rule 2 of Civil Procedure Code appears to me to be clearly applicable to the application that was sought to be pressed before the Tribunal" and further that:- "It is true that even during the operative period of the previous award measures can be taken for the termination of that award but for that purpose an application under proviso 2(ii) subsection (3) of Section 14 of the Industrial Disputes Ordinance has to be made on the basis of a material change in the circumstances on which the previous award was based having taken place. But in the present case without making such an application under section 14 the appellant has sought to bring forward fresh demands for determination and adjudication of the Court by an application under section 5(5) of the Ordinance without seeking any termination of the previous award. Such a course is not permissible under the law. It appears to me that the provisions that an award ordinarily is to be operative for one year has been made in the Ordinance upon a consideration that the award should not be made immutable and permanent in view of a possibility of a change in the circumstances under which the award was made. An award under the Industrial Disputes Ordinance in its very nature is of a transient character and cannot be said to be a permanent mill- stone round the neck of the parties whose dispute has ended in that award. It is but fair that such an award should remain in force for a reasonable minimum period and not be subjected to change and modification from day to day. If the award has proved not to be satisfactory in all respects in its operation its further enforcement can be prevented by an action by one of the parties to the dispute, under section 14, that is to say on proof of a material change in the circumstances, otherwise as a rule for the initial period prescribed in the award it must endure in the interest of peace and harmony, amity and good relations in the industrial concerns. If after one award has been pronounced as a result of demands made by the workmen of an industrial concern they can bring fresh demands by way of an application under subsection (5) of Section 5 of the Industrial Disputes Ordinance, 1959 for determination and adjudication within one year of the award or within a shorter period prescribed in the award, the working of the industrial concerns might be altogether put out of gear, for, a fresh demand in that case could be brought up every week and every month. This certainly could not be the object of the Ordinance which aims at settlement of industrial disputes and creation of atmosphere of harmony in the working of the industrial concerns".
The Dacca High Court in Nishat Jute Mills Ltd. v. Nishat Jute Mills Workers' and Employees' Union and another PLD 1968 Dacca 818 made a similar observation as follows:- "So we find that in order to bring harmonious relations between the employer and the employees in the interest of industrial peace the dispute and any matters relating to the dispute can also be determined by the Industrial Court . This is also necessary to have a permanent peace. There should not be any piece-meal adjudication as contended, for each and every dispute that may occur subsequent to the dispute after it is brought to the notice of the Conciliation Officer and the Court. If that be done the object will be frustrated".
15. As regards the provisions of Section 11 CPC, it may be true that the same in terms is not applicable to the proceedings before a Wage Commission. Nevertheless, the principle underlining that section can be applied because it is universally recognised that a matter which could have been agitated but was not agitated until the decision was given, cannot be permitted to be raised subsequently, because otherwise there will be no finality to the decision. In this connection, I may refer to a case from the Indian jurisdiction namely Burn & Co., v. Their Employees under section 19 of the Industrial Disputes Act, 1947, reported as AIR 1957 SC 38 in which the view taken is "And there are good reasons why this principle (res-judicata) should be applicable to decisions of Industrial Tribunals also".
16. Even otherwise, the scheme of the relevant provisions of the IRO aim at ensuring peace in the Banking institutions for the period the award of the Wage Commission is inforce. It is to be noted in this connection that after every three years, which is the period of operation of an award, the Wage Commission has been invariably constituted, the First Wage Commission having been constituted in 1974, the Second in 1977, the Third in 1980 and the Fourth Wage Commission in 1983. There is therefore, no reason why another Commission will not be constituted in due time.
17. For these above said reasons and more particularly keeping in view the were terms of reference of the Wage Commission under law and the open invitation by the Wage Commission to the Unions to submit their suggestions for its consideration, I am, therefore, o: the opinion that in order to raise a fresh dispute which can be said to be permissible in terms of subsection (3) of Section 38-C, it will be necessary to show that the same is not in respect of a matter on which a decision of the last Wage Commission is in operation, that ii could not have been raised at the time when that Commission was, deliberating nor could it have even been anticipated then, and that the need for raising the fresh dispute has been occasioned by a change of circumstance entirely unforeseen at that time. The demands raised which have given rise to this case have to be examined in the light of the principle enunciated above and in respect of the demands which do not qualify to be raised as a dispute while the Award is in operation, the Bank will be entitled to an injunction. Since the parties are not in agreement whether all or any of the demands do not so qualify, I will remand the matter for a decision by the Single Bench. As regards the second point, I am not inclined to return an answer because the same not having been dealt with specifically by the learned Single Bench, may have to be examined by it in the remand. I order accordingly.
A. A. /97/Lb. I. R. C