The applicants approached this Court under section 32(1-A) of the IRO, 1969 requesting therein that award be passed after y adjudicating the demands of workers. The application was admitted and the notice was issued to other party.
2. The respondent raised preliminary legal objections as regard the jurisdiction of this court and the right of the union to raise an industrial dispute during the period of operation of the settlement. The respondent also filed detailed reply statement.
3. Mr. M.A. Ghani, Representative appearing for respondents contended before me that the objection about the jurisdiction is to be decided before the commencement and not at the conclusion of the enquiry. According to learned counsel, Labour Court instead of deciding the preliminary point had held that the said preliminary point will also be decided alongwith other issues upon the conclusion of the case. The decision of the Labour Court was challenged before the Sind Labour Appellate Tribunal and the learned Sind Labour Appellate Tribunal observed:- "that the decision of the Labour Court to decide preliminary point alongwith other issues upon the conclusion of the case is in direct conflict with the decision of their Lordships Supreme Court, reported in 1973 SCMR page 62."
The learned counsel, therefore, argued that it is the duty of this Court to decide the preliminary legal objections about the jurisdiction, at the conclusion of the enquiry. The reliance is placed in 1983 PLC page 306.
4. On the other hand Mr. Abdul Majeed, the learned representative appearing for applicant contended that reply statement has been filed and the case is fixed for evidence and therefore, this point about the jurisdiction may also be determined alongwith other issues.
5. I have carefully considered the contentions advanced before me and I am of the opinion that jurisdiction of the Tribunal is determinable at the commencement and not at tale conclusion of the enquiry, as reported in the case of Settlement and Rehabilitation Commissioner v. Mannan Khan and 3 others in 1973 SCMR page 62. I am further supported by the observations made by Sind Labour Appellate Tribunal reported in 1983 page 306, in which it has been held by the Sind Labour Appellate Tribunal that the learned Labour Court ought not to have postponed determination of the issue of jurisdiction till the conclusion of the case but should have decided this issue as a preliminary issue of jurisdiction. In this circumstance, I am of the considered opinion that instead of proceedings further I would like to dispose of the preliminary legal objections raised before me by the respondent.
The following are the legal objections of the respondent:-
(1) That in terms of section 39 of the I. R. O. 1969 the settlement arrived at in the course of conciliation proceedings is binding on the parties to the industrial dispute and that under clause 18(a) of the said memorandum of settlement, the union is committed not to raise any fresh demand whatsoever and or any further demand having direct or indirect financial implication on the part of the company during the period covered by this settlement.
(2) That the sanctity is to be attached to the memorandum of settlement arrived at between the management and the union under a package deal. Undertaking was given on the part of the union that during the period of operation of the settlement, it will not raise any fresh demand and or further demand or financial demand during the period of operation of the settlement.
6. It is an admitted position that Muhammad Farooq Khan, present General Secretary of the applicant union had earlier served a notice in terms of section 26(1) of the 1R0, 1969 on 1-1-1984, accompanied with Charter of Demands and following the same with notice of strike in terms of section 26(3) of the IRO, 1969 on 18-3-1984.
7. The conciliation proceedings were initiated by Assistant Director Labour (Conciliation) and on 4- 9-1984 a memorandum of settlement was concluded in the presence of conciliation officer.
According to terms of the said memorandum of settlement it was effective from 1-1-1984 and was binding on the parties for two years ending on 31-12-1985. The perusal of clause 18(a) of the said memorandum of settlement clearly shows that the union had agreed not to raise any fresh demand and or any further demand having direct or indirect financial implication on the part of the company during the period covered by this agreement. It was further agreed upon between the parties under clause 18(b) of the said settlement that this agreement was in full and final settlement of all their claims and demands raised by the union and all the demands and claims stood settled and modified in accordance with this agreement.
8. During the subsisting memorandum of settlement which is still in operation, Muhammad Farooq Khan, in his capacity as General Secretary of the union served yet another notice under section 26(1) of the IRO, 1969 on 5-11-1984 in which not only fresh demands were raised but those demands involve financial implication on the part of the company. That the union thereafter served a notice of strike in terms of section 26(3) of the IRO, 1969.
9. The respondent therefore, raised their preliminary legal objections that during the subsistence of settlement for 2 years no fresh demands can be raised and in terms of section 39 of the IRO, 1969 the settlement arrived in the course of conciliation proceedings is binding on the parties to the industrial dispute and that the sanctity is to be attached to the memorandum of settlement arrived at between the management and the Union.
10. In the case of Province of West Pakistan v. Syed Muharram Ali & 39 others, reported in 1970 PLC page 408, where the union had raised an industrial dispute without legally terminating the earlier memorandum of settlement, the Supreme Court of Pakistan held that subsequently raised disputes was illegal as the earlier settlement was still in operation.
11. In the case of Adamjee Jute Mills v. Province of Pakistan & 3 others, reported in 1960 PLC page 166 in which it has been held by the Division Bench asunder: "I would like to observe that the industrial peace demands that sanctity should be attached to award and the settlement and if the Govt. Or the parties are allowed to think that settlement based on the award has no sanctity then there would be little chance of ending the industrial dispute."
12. In another reported case of Siemens Pakistan Employees Union v. Siemens Engineering Company Ltd, reported in 1966 PLC page 274 in which it has been held as under: "It is contended on their behalf that applicants are .Not entitled to by-pass this agreement and to raise a new demand during the continuation of the said settlement. The contention of the management is not without force. In law parties are bound by the terms of agreement accepted by them and they are not entitled to claim any concession which has not been granted to them."
13. The Sind Labour Appellate Tribunal, has held in 1975 PLC page 205 that applicant union was not competent to raise an industrial dispute during the period of operation of settlement arrived at between the parties. The settlement arrived at between the parties must be given due weight.
According to the decision of the Sind Labour Appellate Tribunal, even the Ordinance has fixed a period of operation of settlement for 2 years. The intention of legislature appears to be that when a settlement had been arrived at between the parties, the terms of the settlement must remain binding on the parties for sufficiently long period.
14. In the present case the memorandum of settlement was concluded on 4-9-1984, and according to clause 18(a) the management and the C. B. A. Had agreed that union shall not raise any fresh demand and or any further demand having direct or indirect financial implication on the part of the company during the period covered by the settlement and the benefits of this settlement shall not be reduced. In nutshell it can be said it was package deal entered into between the management and the C. B. A. Wherein on the one hand the management had agreed to give substantial financial benefits to the workers and C. B. A. Had agreed not to raise any fresh demands whatsoever, and further any demand having direct or indirect financial implication on the part of the company.
15. Mr. M.A. Ghani, relied upon 1975 PLC page 118; 1982 PLC page 544 in support of the contention that during the subsistence of settlement for the period of 2 years no fresh demands can be raised by the union.
16. In view of the legal position it is apparent that there was settlement arrived between the management and CBA for 2 years. The CBA raised demands within period of the 2 years. The present demands are directly in conflict with the settlement arrived at between the parties as most of the demands carry financial implications and the CBA cannot raise these demands as agreed by them vide memorandum of settlement arrived between them. There is nothing on record to show that settlement was terminated according to law.
17. The preliminary legal objections raised by the respondent has got force and I am of the opinion that present application under section 32(1-A) of the I.R.O. 1969 is not maintainable and the same is hereby dismissed.
A. A./978/Lb.S.