1. JUDGMENT The two petitioners, the Collective Bargaining Agent and one workman of respondent No. 4 have by this petition impugned several orders i.e. order dated 15-1-1975 passed by respondent No. 1\ the Provincial Government prohibiting the strike of the labourers of respondent No. 4, order dated 13-2-1975 passed by the 6th Sind Labour Court, Hyderabad, directing the workers to call off their strike and report for duty forthwith followed by another order dated 18-2-1975 dismissing 1459 workers from service, besides an order dated 13-3-1975 passed by the Registrar, Trade Unions, Hyderabad cancelling the registration of the petitioner No. 1 under section 10, clause 3 of the I. R. O. The Collective Bargaining Agent (C. B. A.) petitioner No. 1 had given a notice under section 26 of the 1. R. O. raising an industrial dispute relating to a demand of payment of bonus to the workers, but as the consequent bilateral negotiations, and conciliation proceedings failed, the strike was commenced by the workmen on 10-12-1974, and it is the case of the petitioners that respondent No. 4 had filed a criminal complaint on 6-12-1974 against the office-bearers of the C. B.
2. A. under section I6 read with section 53 of the I. R. O. with a view to forestall the commencement of the strike. During the pendency of the strike again the respondent No. 4 on 3- 1-1975 filed an application under section 34 of the I. R. O, in the 6th Labour Court, Hyderabad seeking a declaration that the strike was illegal. This was being contested by the C. B. A. when respondent No. 1 i.e. Goverment of Sind by notification dated 15-1-1975 prohibited the continuance of the strike in exercise of its powers under section 39 of the I. R. O. and before the petitioner could file a constitutional petition to challenge this notification, the Assistant Director Labour, Hyderabad made a report on 1- 2-75 purporting to be under section 46-A (1) of the I. R. O. wherein it was stated that, "The parties have been directed to appear in the Court on 3rd February 1975 at 10-00 a.m. for taking date in the matter", and also there was an endorsement No. 269-73 dated 1-2-1975 to the effect "Copy forwarded to the General Secretary, Indus Dyeing and Manufacturing Company Workers'
3. Union, Trade Union Office, Gari Khata, Hyderabad. He is directed to appear before the Court on the date and the time mentioned above". The petitioners deny having received any such notice or direction, as stated, and no appearance before the respondent No. 3 was therefore put in by them on 3-2-1975. Mr. Sher Afgan, the learned counsel for the petitioners referred to the entry of 1-2-75 from the case diary of the 6th Labour Court which reads:-- "Received through peon alongwith following documents: (1) Memo, of application. (2) Notice. (3) Notice. (4) Statement. 1975 &61Admit.
4. Register and put on the date of hearing already informed to the parties for appeal ance on 3-2- 1975. (Sd.) p. o. l. c.'\ and submitted, that while registering the matter, there was nothing before the Labour Court to show that the petitioners were served by the Assistant Labour Officer. This is further clear because the Labour Court adjourned the matter to 5-2-75 and thereafter to 8-2-75 only on that account. Admittedly also the VI Labour Court itself issued notices for 8-2-75 and then for 13-2- 75, which were received by the C. B. A. after court hours on each occasion i.e. 5 p.m. and 3.35 p.m. respectively. The case diary of the Court however shows that on 8-2-75, apart from notice by registered post, the same was also sent through the bailiff for 13-2-75 and his report was that he had affixed the same on the outer office door of the petitioner as none present there, was prepared, to receive the same. In these circumstances, the 6th Labour Court held the service upon the C. B. A. to be satisfactory and on 13-2-75 proceeded ex parte in the matter and after examining the Manager of respondent No. 4, the Assistant Director Labour, and the bailiff, the impugned ordeis were passed directing the workers to call off the strike and report for duty forthwith. The learned counsel for the petitioners severely attacked this order as being without lawful authority on the ground that it was in violation of the provision of section 46-A of the I.R.O., 1969 and the contention was that the Labour Court could not assume jurisdiction in the matter and proceed with it unless service was effected for the date for appearance as fixed by Court, by the Labour Officer within the meaning of clause (2) of section 46-A of I. R. O. He relied on the case, Star Texile Mills Ltd., Karachi v.
5. III Sind Labour Court, Hyderabad (1) in which a Division Bench of this Court had considered the scope of this section and it was observed: "A bare perusal of the above provision clearly indicates that the foundation of the jurisd ction of the Labour Court to order a strike to be ^ called off or a lock-out to be lifted and to pass other orders under section 46-A is a submission to it of a report under subsection (1) by the appropriate Labour Officer and the giving of notice to the parties concerned under subsection (2). The importance of notice lies not only in the fact that it gives effect to a basic principle of natural justice, that no order prejudicially affecting a party should be passed without giving it notice and an opportunity of a hearing, but that further by bringing the contesting parties face to face before the Labour Court there would be possibility of a settlement, resulting in the termination of the strike or lock-out as the case may be, which is the object of the section." Now, this was a case in which a report had been submitted by the Assistant Director under section 46-A, clause (1) after conducting an enquiry and he had sent notice to the petitioners "to be prepared to appear before the Labour Court on a date to be fixed by that Court", and as the sufficiency or the manner of giving this notice under section 46-A(2) was not under consideration directly, as it is in the present case, no discussion was made on that point. However, it had been held that non-compliance with the requiremen of (1) 1973 PLC 376 clause (2) of section 46-A was sufficient to invalidate the proceedings and the orders passed, and it was observed i "Since the giving of notice under subsection (2) of section 46-A is one of the two essential requirements for the taking by the Labour Court of any proceedings and passing orders under section 46-A, and as this requirement has not been complied with, its orders dated 5th and 10th April, directing the workers to call off the strike would be invalid." The learned counsel contended that in this regard even the fact of communication of knowledge of the proceedings in Court, was not enough compliance with clause (2) of section 46-A, and prior service of notice by a Labour Officer was essential and he referred to the following observations: "It is claimed on behalf of the petitioner that though no notice under subsection (2) was given to the above two Unions, and the various orders of the Labour Court were pasted on the main gate and Ring Section of the Mill and even given publicity through the madium of the press and hence must have come to the knowledge of the string workmen. Even if this claim be conceded then also it would not cure the defect of want of notice under subsection (2) to the Trade Unions concerned in 1he dspute. Since the action of the Labour Court mititat- ing proceedings under section 46-A and requiring the workers to call off the strike, without the essential condition of notes under subsection (2) having boen fulfilled, are in the contravention of law, its subsequent order directing the workers to call off the strike when is based on the first order, would also be without lawful authority." Mr. Fazeel the learned counsel for respondent No. 4 contended that in the present case, the admitted position is that the petitioner had the knowledge about the proceedings going on in the Labour Court, as there is no dcnist of receiving the notices from the Court, although in the late hours. In spite of that they did not care to participate in the proceedings and have he borately abstained from so doing, but faced with the decision in Star Textile Mills Ltd, Karachi v. III Sind Labour Court wherein the proceedings being communicated to the parties by any other method than that of giving the initial notice was repelled, and as also the Civil procedure Code or the rules framed thereunder, for the purposes of summoning parties could not admittedly be resorted to, in these special proceedings, hereferred to the impugned order of the Labour Court and pointed out that the Court, had before it the receipt Assistant Labour Officer in token of having received the notice. The Court had issued notices of its own tp recure the attendance of the petitioners only in addition, and thus the point of jurisdiction raised by the learned counsel for the petitioner had no basis. In the impugned order the Labour Court dealing with the service of notice said, "on 1-3-75 when this report was being submitted to Court, Assistant Director Labour (Concilitation), H>derabad took a written undertaking from the Union to appear for enquiry," but the documents filed in Court on 1-2-75 show that no such writing by the Secretary was produced. It is on 13-2-75 that the Assistant Labour Officer while giving evidence produced the said receipt as Exh. 8, which purports to be a written acknowledgment signed by the Secretary of the Union. The learned counsel for the petitioners referred to the admitted signatures of the General Secretary made on an application filed by him in Labour Court on 26-2-75 and alson on the original documents relating to the initiation of the dispute under section 26, clause (1) of the I. R. O. which documents Exh. 8 was a totally different signature and was thus not of the General Secretary. Mr. Fozeel in this context referred to para. 17 of the petition wherein it was admitted that the General Secretary of the C. B. A. had received a summons from the 6th Labour Court on 21-2-75 and that document again bears the signature of one Mahboob Ali in Urdu. He therefore contended that the petitioner had purposely been avoiding to receive the notice a deat least preventing any snch evidence to be made available and, as all this, involved disputed facts the same could not be investigated in the present proceedings. There is however no denial of the fact that the signature of the General Secretary on Exh. 8 of the Labour Courj is not the same as the other signatures referred above but without going into such technicalities as Mr. Fazeel the learned counsel for respondent No. 4 has pointed out, it is obvious in the present case that the Labour Court did not proceed with the matter on 3-2-75 but postponed it to 5th and thereafter to 8th because in the first place the above said receipt was not produced before it and secondly there was no evidence of any service on the parties having been duly made. It issued its own process for the same reasons, but surprisingly relied also upon the receipt Exh.
8. This receipt was not produced by the Labour Officer on any of the da^es of hearing before 13-2-75. Be that as it may, and although, in exercise of the writ jurisdiction this Court is not required to enter into technicalities disputed facts just as in the exercise of the appellate jurisdiction, this fact is obviously admitted that the Labour Court itself did not have any evidence of service before it at the time it took congizance of and proceeded with, the matter, and in these circumstances, the observations made in Star Textile Mills Ltd., Karachi v. Ill Sind Labour Court quoted above are fully attracted. Now the whole scheme of section 46-A is obviously to provide a machinery for expeditious and quick interference with strikes and lock-outs which are illegal, and under sub-clause (3) the Labour Court has to pass orders within a short period of 10 days, following the day on which it receives a report.
6. This being the whole object of this section, it appears, that the Legislature instead of burdening the Court with the function of securing the attendance of parties before commencement of the proceedings, gave powers to the Officer of the Labour Department as specified in sub-clauses (9) and (10) of the section which read as under: -- "(9) The officer shall have authority to call any party to such dispute, to his office, or secure his presence in the factory, and shall also have the power to bind any party to the dispute to appear before the Labour Court. (10) Where a party to an illegal strike or lock-out, on being required or bound under this section to appear before the Officer or Labour Court, does not so appear, the officer or Labour Court, as the case may be, may besides taking such other action as may be admissible under this Ordinance, proceed ex parte." A plain reading of these two clauses would show that besides the authority to call a party in the office or to secure his presence in the factory, the Labour Officer is given *a power' to bind a party to a dispute for appearance before the Labour Court; and the Court can take ex parte proceedings against parties to illegal strike or lock-out, that have been so bound to appear. These two clauses are to be read with clause (2) of seetion 46-A and it becomes clear that the concerned Labour Officer has got to serve the 'parties to the dispute* with the date for appearance as fixed by the Labour Court, but must also take a bond for appearance from the 'parties to the illegal strike or lock-outs', and, as against the latter, ex parte action could be taken by the Labour Court only in case of being so bound. In the reported case Star Textile Mills Ltd. v. III Sind Labour Court, Hyderabadt the Assistant Director had given a notice to the parties vto be prepared to appear before the Labour Court on a date to be fixed by the Labour Court. In the present case the Assistant Labour Director had on his own given a date fr appearance before the Labour Court although that date was not fixed by the Labour Court itself. Clause (2) of section 46-A clearly shows that the Labour Officer is to notify the parties about the date for appearance which is fixed by that Court. The authority to fix a date for appearance obviously is the Court and not the Labour Officer and this can never be intended to mean that a Labour Officer may, without any pre- directions from the Court, fix a date which the Court may simply adopt. The procedure obviously appears to be that the concerned Labour Officer has to submit a report before the Labour Court under clause (1) of section 46-A and after taking a date for appearance of the parties proceed to exercise his authority and powers under sub- clauses (9) and (10) as stated. It may also be noteworthy that clause (2) and clause (9) have significantly mentioned parties to the dispute or concerned with that dispute, while clause (10) distinguishably specifies party to an illegal strike or lock-out. This is understandable because proceedings under section 46-A are intended only to deal with strikes and lock-outs that are illegal, and it is possible to conceive of parties to an illegal strike who may not be parties to a dispute at all. And that would be consistent with the powers given to an officer of the Labour Department for making enquiries into an illegal strike or lock-out in a factory, as he has to determine the parties who may be associated with the same. So far as the actual proceedings before the Labour Court in this regard are concerned, provision is contained in clause (3) of section 46-A only, and as stated above, the proceedings are to be completed within a period of 10 days following the day on which the report is received, and the orders are to be passed "after considering the report and hearing such of the parties as appeared before it", and as the Civil Procedure Code is not admittedly applicable to these proceedings, the learned counsel for the petitioners, rightly submitted that this provision does not envisage the summoning of any other parties by the Labour Court or even summoning of any further evidence which the Labour Court itself may desire to examine. The whole proceedings appear to be in the nature of summary proceedings and are to be expeditiously completed, as the sole object is to stop the illegal strike or the illegal lock-out that may be causing even National loss. There is no question of any final settlement or adjudication on merits with regard to the dispute that may be existing between the parties. It is therefore, necessary that the parties who may be most concerned with the dispute or for that matter with the strike which in the opinion of the Labour Department be on illegal strike, should be made to appear before the Labour Court and powers are given to the Labour Officer concerned to see that such parties are not only duly served but even bound down for appearance before the Labour Court. The use of the words "authority" and "power to take the bond" in clause
(9) are significant. The Labour Court would be least concerned with the matter of securing the attendance of parties but may forthwith pass ex parte orders against those parties to illegal strike etc. who though bound down to appear still remain absent. The Labour Court would therefore, of necessity, examine, that compliance of the provisions which require service of the parties, has duly been made by the Labour Officer, before it could competently proceed with the matter. The provision in section 46-A appears to be introduced by amendment as a piece of special legislation to meet with the exigencies of the situations specified, but as observed in Brook Bond Pakistan Ltd.
7. IInd v. Sind Labour Court, (1) in spite of, bad drafting being a feature of this Ordinance and difficulties created on account of that, it is nevertheless the duty of the Court to give effect to the will of the Legislature and to derive that will from the words it has used. The Labour Court was again approached by the Assistant Labour Officer, praying that orders dismissing the workers be passed as they had failed to resume work and such orders were then passed by the Labour Court on 81-2- 75 under section 46-A(7). It is the case of the petitioners that by a resolution dated 17-2-75, a decision was taken to terminate in strike and the workmen who receivied informationally went to attend the work but were informed that the work was to be recumed on the following day and it is on 19-2-75, that they were informed about their dismissal. No evidence is nowever produced in support of this and as provided in section 46-A(l) no review of the dismissal orders was sought to be made by the C. B. A. or any individval worker. Instead the petitioners have made allegations to make out a case of calculated misrepresentations on the part of the concerned authorities, in that as annons for appearance on 25-2-75 in proceedings under section 46-A(7) was given to the General Secretary of the C. B. A. on 21-2-75 when enquiries were being made ih the Labour Court about the dismissal orders. As the case number and the names of the parties on the summons were the same, the petitioners' Secretary was led to believe that the original proceedings still continued and the information about dismissal was not correct but on 26-2-75 on appearing in the same Court, he came to know that those orders had actually been passed on 18-2-75. Thus, the opportunity of filing of review under section 46-A(7) was also lost, having become time-barred. The learned counsel for the respondent No. 4 has vehemently contended that by not availing of this alternate remedy by review, this petition has become incompetent and the petitioner has now attempted to explain the default on the basis of allegations which are ex facie not believable. The learned counsel for petitioner conceded to the legal proposition but in support of the truth of the causes of default, submitted that a bare reference to the proceedings for which summons for 26- 2-75 had been issued would be enough to show that the same were a mere hoax, started only to misguide the petitioners. He referred to the orders of the Labour Court dated 6-3-75, wherein it was said that Mr. EhsaanullahQureshi, the Assistant Labour Officer had in the first case sought dismissal of the striking workeis for contravening the directions given by the Court, which was done by orders dated 18-2-75, but the Court did not cancel the registration of the C. B. A. By the report Qureshi, the Assistant Labour Officer again sought cancellation of the registration of respondent No. 1 on the same grounds. The order further said that in the enquiry before passing the order dated 18-1-75, there was no specific evidence brought oa the record that the C. B. A. bad committed or abetted the commission of the said contravention. And as such there was no material before the Court for cancelling the registration of the Union. This point therefore could not be re-opened on the (1) PLD 1973 Kar. 189 same facts and evidence, nor were there any grounds to hold further enquiry or a new enquiry. The Labour Court therefore filed the proceedings holding that the application did not merit any further orders. The leamed counsel argued that admittedly therefore there was no justification for even entertaining an application of this type for cancellation of registration after the final orders had been passed particularly by giving it the same number as of the firs case. In the same context he referred to the orders of the Government dated 15-1-1975 and the notification issued in exercise of the powers confe rred upon respondent No. 1 under section 32(2) of the I. R. O. which had been forwarded to the Presiding Officer, Labour Court No. 6, Hyderabad for adjudication and which was required to be done as expeditiously as possible but, not beyond a period of 30 days from the date of the reference. The learned counsel contended that the 6th Labour Court does not seem to have taken any action in this direction, although, for the purpose of deciding such a reference the Labour Court is deemed to be a civil Court, and had the powers to enforce the attendance of any person and to examine him. This inaction on the part of the Labour Court in this respect and instead proceeding upon the report of the Assistant Labour Officer under section 46-A resulted in the dismissal of such a large number of workmen, when the whole dispute could have been settled within the same period. These are substantial arguments but as they do not lead to any conclusions relating to the jurisdiction of the Labour Court to proceed or the authority of the Labour Officer to file the relevant reports; or even the validity of any orders, they would not be relevant for consideration in the exercise of the Constitutional Jurisdiction. Nor can a definite conclusion be drawn from these facts that the petitioner or any workmen were misguided by these proceedings so as not to avail of the alternate remedy of review that was available to them. The learned counsel for the petitioners made a lukewarm attack questioning the validity of the Government's order dated 15-1-1975, on the ground that it had the effect of taking away a vested right of the workmen to go on strike and therefore no adverse order could be passed, as the present one, without giving a prior hearing to the parties. This argument had no force and as the learned Additional Advocate-General pointed out, the impugned order has no such effect, but is passed under the legal provision which is intended to serve as a check on an undesirable prolongation of a strike and reference of the same to a Tribunal for proper adjudication of the basic cause, and thus to prevent any loss that may be otherwise caused. The last attack of the petitioners was on the order dated 13-3-75, whereby the Registrar of the Trade Unions had cancelled the petitioner's registration. This order was also based on the original order of the Labour Court, by which it had directed calling off the strike and had consequently dismissed the workmen, and its validity and effect had necessarily to depend upon the order upon which it was founded. In the result, I respectfully agree with the interpretation of section 46-A of the I. R. O. in Star Textile Mills Ltd., Karachi v. IIlrd Sind Labour Court, Hyderabad, and find that the impugned orders of the 6th Labour Court, Hyderabad dated 13-2-75 and 18-2-75 are not valid; and so the order of the Registration dated 13-3-75, as it is based on the above said orders of the Labour Court. The order of the respondent No. 1 dated 15-1-75 is not without lawful authority and is valid. This petition is, therefore, partly allowed to the extent stated above but with no order as to costs. Petition partly allowed.