DECISION This is an appeal against an Award dated the 5th of November, 1973 given by the Sind Labour Court No. II, under section 32(1-A) of the Industrial Relations Ordinance, 1969 (hereinafter called the 'Ordinance'). The respondent-Union has raised as many as 9 demands by the notice dated the 6th of April, 1972 served on the 7th of April, 1972 on the appellant concern under section 26 of the Ordinance as no Settlement could be arrived at a strike notice dated the 29th of April 1972, which was admittedly served on the 2nd of May, 1972 on the appellant counsel, was given by the respondent-Union.
2. It was contended before the learned Labour Court that the strike notice dated the 29th of April, 1972 personally delivered by the Union on 1he appellant on the 2nd of May, 1972 was illegal and bad in lavy and, therefore, any proceeding based on illegal strike notice was not maintainable. The strike notice, as the law then stood, should have been given within 3 days from the end of the period referred to in subsection (2) of section 26 of the Ordinance, that is, within 13 days. In the present case, the strike notice was given much after the expiry of the period mentioned under subsections (2) "It is a well-settled principle of interpretation of statutes that when a statute creates new rights and obligations and prescribes the mode of its enjoyment or enforcement, such provisions are considered mandatory and that the Legislature intends compliance of such provisions to be essential to the validity of the act or proceedings. Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred, and it is therefore probable that such was the intention of the Legislature."
3. The word "may" occurring in subsection (3) of section 26 of the Ordinance is to be read as "shall" and is mandatory. I would hold that the rcspondent-Union having not complied with the provisions of section 26(2) and (3) the application under section 32(1-A) was not maintainable and the Award on that ground alone should be set aside.
4. Mr. M. A.
Rashid, the learned Representative for the Union, contended that the appellant cannot now be allowed to raise this objection as to non-compliance of section 26(2) and (3) of the Ordinance as they should be deemed to be given up this contention. Mr. Rashid contended that Mr. Zamirul Hassan, the learned Advocate for the appellant, has filed his own Affidavit and stated therein that on his pursuation the appellant had agreed to give one month's bonus and an increase of Rs. 10 p.m. in the wages of the workers but the Union went back on his offer and demanded Gratuity also.
The contention of Mr. Rashid was that had the appellant concern not assured of its legal position it would have not agreed to the payment of bonus and increase in wages and, therefore, should be deemed to have given up the stand as to the legal objection about the service of strike notice.
There is no force in this contention. A perusal of the Affidavit of Mr. Zamirul Hassan would disclose that the appellant concern was not willing to accept the terms offered by the respondent-Union but it was only on the pursuation of Mr. Zamirul Hassan that the appellant Management consented to give one month's bonus and an increase of Rs. 10 Per Month in the Wages of the Workers. It is noteworthy that the appellant Management had taken this objection as a very first objection in its Reply Statement. The learned Court for some reason or the other did not give any finding on this issue. I am of the view that the respondent-Union having! not complied with the mandatory provision of subsections (2) and (3) ofj section 26 of the Ordinance could not make an application under) section 32(1-A) of the Ordinance. The Award based on non-compliance of! any mandatory provision of law is bad in law and, is, therefore, set aside. It would be sufficient to observe so far as the merit of the Award is concerned on different demands that it is only based on surmise and conjecture and not on evidence and, therefore, is liable to be set aside.
5. For the reasons given above the Award of the learned Labour Court is set aside. (1) PLD 1973 Kar. 1