JUDGMENT This is an appeal against an interim award dated 31-12-1974 of Punjab Labour Court No. 3, Lyallpur.
2. Rafhan Maize Product Employees' Union, Lyallpur, respondent raised an industrial dispute. After failure certificate issued by the Assistant Director, Labour Welfare (Conciliation), Lyallpur, respondent-Union filed a petition under section 32(1-A) of Industrial Relations Ordinance, 1969 raising 10 demands against Messrs Rafhan Maize Products Co. Ltd., Lyallpur appellant. The appellant raised 8 legal objections challenging the locus standi of the respondent to raise the industrial dispute. The learned Labour Court overruled those objections.
3. Aggrieved by the interim award the appelhnt has preferred this appeal as already stated above.
4. The learned Representative of the respondent at the outset raised 2 preliminary objections, namely :-- (1) that the written statement was not verified on oath as required under Order VI, rule 15 of the Code of Civil Procedure, therefore, it should be considered as void or a nullity ; (2) that the decision on legal objections is not an award and hence not appealable.
5. Preliminary objection No. 1.--Was rejected by me by a separate order dated 17-4-1975.
6. Preliminary objection No. 2.--In support of this objection the learned representative of the respondent relied on the judgment of the Supreme Court in the case, Province of West Pakistan v. Syed Moharram Ali and 93 others (1) wherein it was observed: "It was contended that the question of the extension of the award was a matter relating to an industrial dispute and as the order of the Industrial Court extending the period of the award amounted to an award, it was appealable as such. The leamed Judges in the High Court did not accept this contention and we agree with their reason that the phrase "any matter relating thereto" in this definition is to be read ejusdem generis with the words "industrial dispute" to cover only controversies with regard to the employment or on-employment or the terms of employment or the conditions of work of any person under subsection (5) of section l2 of the Ordinance. Only the award which is published under subsection (2) or subsection (2-B) can be appealed against to the High Court by any party to the dispute within 30 days of the publication of the award. The award referred to in this provision is the one given in consequence of an application made in the Industrial Court under subsection (5) of section 5 after failure of the conciliation proceedings and is required to be pablished in the official Gazette, unless the relevant Government considers it inexpedient on public grounds to give effect to the whole or any part of it. It is clear, therefore, that the award intended by subsection (2) of subsection (2-B) is the one which culminates after the initiation of proceedings, firstly, before a Conciliation Officer and then before the Industrial Court under subsection (5) of section 5. In the case of extension of the period of an award no question of any conciliation proceedings arises and no proceedings under subsection (5) of section 5 of the Ordinance take place. Whether the period of the award is to be extended or not, is left to the discretion of the Industrial Court and is to be judged according to the circumstances of the situation prevailing at the time. The appellant's appeal in the High Court directed against the order of tbe Industrial Court dated the 7th August, 1963, whereby it was held that the notice issued by the Railway Administration was premature, was, on the face of it, in a worse position and wholly untenable as that order could not be considered as an award or an interim award in any case. It was merely an interim order by which a further opportunity was provided to the Railway Administration to issue a valid notice to the respondents. The appeals of the appellant in the High Court were, therefore, rightly rejected as incompetent." This ruling in my view is not applicable to the facts of the present case, where legal objections were raised regarding the locus standi of the respondent- Union raising the industrial dispute, whether the demands could be raised) during the pendency of the previous settlement, and whether the majority off/ the demands raised constituted an industrial dispute. The limited point before! the Supreme Court was the question whether or not the period of award should be extended constituted an industrial dispute. The learned Representative of the respondent-Union also relied on the judgment of the Sind Labour Appellate Tribunal in the case Messrs Corning Glass (Pakistan) Limited, Karachi v. Employees' Union and another (1) wherein it was held that a decision on preliminary objection as to whether the demands could be raised by a Union during the pendency of a settlement cannot be said to be a determination of the industrial dispute, so as to amount to an award. This decision is contrary to the judgment given by the Supreme Court in the case, Hotel Melropole Ltd., Karachi v. Employees'
Union (2) wherein it was held that the point of locus standi and consequential point of the existence of an "industrial dispute" were, in the circumstances, matters requiring adjudication, which an Industrial Court is to deliver. In the Division Bench judgment of the High Court of West Pakistan in the case The Management of Municipal Committee, Mianwali v. The (Jeneral Secretary, Municipal Moharrir s' Union and another (1) it was held:-- "Decision of the Industrial Court on the question of jurisdiction is an award within the meaning of section 2(6) and the appeal against the same is competent under section 12(5) of Industrial Disputes Ordinance, 1959. A decision on a question although it may not be the determination of an industrial dispute or any matter relating thereto, yet it would be an award provided the question bears some relationship with the industrial dispute." In the light of the above the preliminary objection raised by the learnedi Representative of the respondent is overruled. I 7. The learned counsel for the appellant raised 8 legal objections which will be taken up one by one. Objection No. 1.--The application under section 32(1-A) of Industrial Relations Ordinance, 1969 was not competent as the majority of the demands raised in the application did not constitute industrial dispute. This objection relates only to demand No. 1 which is to the effect that charge-sheets, show- cause notices, suspension orders and enquiries etc., which have been recently instituted against 8 office-bearers and active members of the Collective Bargaining Agent Union and other employees of the mill may be withdrawn as it clearly tantamounts to victimisation, and is against the promise given before the Assistant Director, Labour Welfare (Mr. Muhammad Shafi), on 17-8-1974. 1a this case demand notice was given on 26- 8-1974 and strike notice was given on 5-9-1974. Conciliation proceedings failed on 27-9-1974 and as a result thereof failure certificate Exh. PB was issued. On 27-9-1974 application under section 32(l-A) of Industrial Relations Ordinance, 1969 was instituted before the Labour Court. At the time of the institution of the application the following was the definition of the Industrial Dispute as given under section 2(xiii) of Industrial Relations Ordinance :-- "Industrial Dispute, means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is concerned with the employment or non-employment or the terms of employment or the conditions of work of any person." By Ordinance XIX of 1974 which came into force on 10-10-1974 the definition of Industrial Dispute was amended as follows ;-- "Industrial Dispute* means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is concerned with the employment or non-employment or the terms of employment or the conditions of work of any person; and is not in respect of the enforcement of any right guaranteed or secured to him by or under any law, other than this Ordinance, or any award or settlement, for the time being in force"
Thus it will be seen that the underlined* portion was added after the amendment. In the present case, however, old definition of the industrial dispute will apply because at the time when the application under section 32(l-A) was ?[Here in italics] instituted, the amendment had not taken place. The learned counsel for the appellant contended that .Demand No. 1 did not constitute an industrial dispute because the proceedings as provided by law were being taken against the 8 office-bearers for misconduct. According to the learned counsel for the appellant the law provides a specific remedy against the decision of the employer and if the employer has breached any of the statutory provisions regarding termination, then the remedy lies to the forum provided by law and not by way of an industrial dispute. If on every point industrial dispute is raised, the law concerning those points would become redundant. He further argued that since in the present case an application by the employer under section 47 of Industrial Relations Ordinance, 1969 was pending before the Labour Court for permission to dismiss the 8 officebearers, the matter regarding the alleged misconduct on the basis of which the suspensioa was ordered and enquiry proceedings were taken, was already pending before the Labour Court. In view of the above this matter could not be taken up in the industrial dispute where several other demands had also been made. He relied on the judgments of Industrial Court, West Pakistan, in the case Shujauddin Qureshi v. Messrs Pfizer Laboratories Ltd., Karachi (1) wherein it was held that the dismissal or the discharge do not embrace alteration of service conditions.
8. From the record it appears that the allegation against the 8 officebearers was that they had stopped workers from coming to the factory on 14- 8-1974 which was declared as holiday by the Government. The management thereafter suspended them for 4 days at a time from 19-8-1974 to 24-10-1974. The management started proceedings against them for misconduct and also filed an application before the Labour Court under section 47 of Industrial Relations Ordinance, 1969 for permission to terminate their services. The application is still pending.
9. The learred counsel for the respondent, on the other hand, contended that the suspension of an employee is a matter which directly hits his terms and conditions of service and affects his remuneration. It, therefore, can be challenged as an industrial dispute, ln support of his contention he relied on the Division Bench Judgment of the Lahore High Court in the case Messrs At lock Oil Company Limited v. The Supreme Body of Oilfields League and Refinery Union, Rawalpindi
(2) wherein it was observed:-- "It cannot be argued with any force that the suspension of workers by an industrial concern is not a ques'ion relating to employment or nonemployment or it does not amount to a change in the condition of service of an employee. The suspension of an employee is a matter which directly hits his terms and conditions of service and affects his remuneration. The Union can, therefore, validly come forward and challenge before the Court that the suspension was arbitrarily ordered and, as such the terms of employment of the workers have been affected or that the suspension is not warranted by the terms of their employment. The mere fact that no final order termfnating the service of an employee has been passed will not debar the Union to challenge the order of suspension which obviously is a maiter affecting the terms of employment.
The employees can also claim that during the period of suspension they are entitled to certain suspension allowance which the management is unlawfully withholding or that they are made to work during the period of suspension without any remuneration and this amounts to taking forced labour from them. All these matters will certainly fall under the definition of industrial dispute.** 10.
In the present case, I find that 8 office-bearers had been suspended, and therefore, in view of the High Court ruling cited above, their suspension affected their terms of employment, and as such their order of suspension! could be challenged in an industrial d spute. Jr 11. In the result the objection is without force and is, accordingly, overruled. l2. Objection No. 2.--The application under section 32(1-A) of Industrial Relations Ordinance, 1969 is not maintainable as it has been filed during the period in which a settlement is in operation and in respect of matter covered by the settlement.
13. Objection No. 3.--The present application under section 32^1-A) of Industrial Relatioas Ordinance, 1969 is not maintainable as the petitioner- Union is estopped from raising demands contained in this application. The Collective Bargaining Agent had entered into a settlement Exh. DA dated 21- 3-1974 for a period of one year. According to . clause 14 the Collective Bargaining Agent is estopped from raising demands having financial implications during the period the above settlement is in force. The Collective Bargaining Agent having enjoyed all the benefits of the above settlement cannot raise demands having linancial implications as it has specifically undertaken not to do so for a period of one year.
14. Both these objections will be taken up together. In the present dispute demand notice Exh. DN was given on 26-8-1974 and strike notice Exh. DO was given on 5-9-1974. Conciliation proceedings failed and failure certificate Exh. PB was issued on 27-9-1974. This shows that the previous settlement was still pending when the present dispute was raised.
15. The learned counsel for the appellant relying on section 46(i)(d) of Industrial Relations Ordinance, 1969 contended that demands which were covered by the previous settlement Exh. DA could not be raised while the previous settlement was still in force. There is, however, an exception to the above proposition, lt is well established that demands regarding financial implications can be raised in spite of the previous settlement, if the conditions! and circumstances have materially changed. This is a question of fact andp* the party raising the demands has to satisfy the Court that the conditions and circumstances have in fact been materially changed. The respondent's plea, on the other hand, was that the previous settlement was not binding * as it was not entered into by the duly appointed representatives of the workers.
The respondent did not raise the plea that it had raised demands regarding financial implications because conditions and circumstances had materially been changed. Now the question for determination is as to whether. the settlement Exh. DA was entered into by the duly appointed representatives of the respondent-Union. From the perusal of Exh.*DA I^find thatjthe settlement was signed on behalf of the Union by :-- President General Secretary Vice-PresidentManzoor Ahmad Muhammad Irshad Farzand Ali In March, 1973 one Zulfiqar A ii was the President. On 18-5- 1973 he was removed from the office by Muhammad Irshad and its approval was obtained from the Registrar, Trade Unions. Against the order of the Registrar, Zulfiqar Ali went in appeal under section 8(7) of Industrial Relations Ordinance, 1969 before the Labour Court. The parties consented that fresh election of the office-bearers of the Union be held under the supervision of the Registrar.
The Labour Court thereupon passed that order and the appeal was withdrawn by Zulfiqar Ali. The Registrar, fixed the date for election on 12-2-1974. On 6-2-1974 the Labour Court at the instance of Muhammad Salim and Sultan Ali members of the Union issued stay order restraining the Registrar to hold the election. These two persons also filed a civil suit on the same cause of action. Kaley Khan group was not made a party in those proceedings before the Labour Couit. The Labour Court impleaded Kaley Khan as a party and dismissed the appeal of Muhammad Salim and Sultan Ali on 4- 3-1974 vide order Exh. P. D. The order dated 6-2-1974 was withdrawn by the Labour Court. The Registrar was then directed to hold the election. Muhammad Salim and Sultan Ali therefter got a stay order issued from the civil Court. That suit was dismissed vide order Exh. dated 26-6-1974 (Annexure B). The Registrar then fixed 24-6-1974 as the date for election as a result of which Kaley Khan was elected President, Rana Mohib-ur- Rehman, General Secretary and Ghulam Ali, Vice- President. From the facts narrated above it is clear that on 21-3-1974 when the settlement Exh. DA was arrived at, Manzoor Ahmad was President, Muhammad Irshad was General Secretary and Farzand Ali was Vice-President, whose election had been confirmed by the Registrar and that is why an appeal against that order under section 8(7) of Industrial Relations Ordinance, 1969 had been filed before the Labour Court. Thus it cannot be said that Manzoor Ahmad, Muhammad Irshad and Farzand Ali were not the duly appointed representatives of the Union.
16. In any case the respondent-Union having enjoyed the benefits of the settlement Exh. DA cannot challenge the settlement on the ground that it wasi void. I am fortified in this view by the judgment of bind Labour AppellateP Tribunal in the case Abdul Sattar and another v. Messrs Pakistan Oxygen Limited, Karachi and 2 others (1) wherein it was held that the appellant cannot be allowed to contend that tbe settlement was invalid on some legal grounds, when it had been acted upon by the parties and advantage taken by the workmen.
17. In the result the objections raised by the appellant are sustained. Objection No. 4. --The application is incompetent as the provisions of section 26{3) of Industrial Relations Ordinance, 1969 have not been complied with in so far as no valid strike notice has been served upon the respondent (now appellant). In this connection it will be necessary to reproduce section 26 of Industrial Relations Ordinance, 1969, which reads as follows :-- "(1) If at any time an employer or a Collective Bargaining Agent finds that an industrial dispute has arisen or is likely to arise, the emloyer or, as the case may be, the collective bargaining agent, may communicate his or its views in writing either to the Works Council or to the other party so, however, that, where the views are so communicated to the Works Council, a copy of the communication shall also be sent to tbe other party. (2) On receipt of the communication under subsection (1), the Works Council or the party receiving it shall try to settle the dispute within ten days of the receipt of the communication by bilateral negotiations, (1) 1973 PL C 125 and, if the parties reach a settlement, a memorandum of settlement shall be recorded in writing and signed by both the parties and a copy thereof shall be forwarded to the Concihator and the authorities mentioned in clause (xxiv) of section 2. (3) Where a settlement is not reached between the employer and the collective bargaining agent or, if the views of the employer or collective bargaining agent have been communicated under subsection (1) to the Works Council, there is a failure of bilateral negotiations in the Works Council, then the employer or the collective bargaining agent may, within seven days from the end of tbe period iefeired to in subsection (2), serve on the other party to the dispute a notice of lockout or strike, as the case may be, in accordance with the provisions of this Ordinance."
19. In this case demand notice Exb. DN was given on 26-8-1974, and strike notice Exh DO was given on 5-9-1974. In the strike notice it was mentioned that the dispute was represented to the employer on 26 8-1974 for direct negotiations and settlement. It was also mentioned therein that the respondent-Union was proposing to call a strike on 28-9-1974 starting from 6 a.m. The learned Labour Court wrongly mentioned in its order that no strike notice had been produced. In fact it was produced and was marked as Exh. DO by the learned Labour Court itself. According to section 26(2) of the Ordinance the dispute has to be settled within 10 days of the receipt of communication.
Therefore, from 26-8-1974 when the demand notice was communicated, the 10th day fell on 5-9- 1974. Under section 26(3) the strike notice has to be given within seven days after the expiry of ten days mentioned in section 26(2). Thus the strike notice should have been given within seven days starting from 6-9-1974, and not on 5- 9-1974. In other words it was given one day earlier. It was contended by the learned counsel for the respondent that the provisions of section 26 were directory and not mandatory. This contention has no force, because the provision of section 26 is a mandatory provision. The said provision confers certain rights on the workers. It confers upon the workers the right of strike. In all the Ordinances or enactments prior to the Industrial Relations Ordinance the workers had no right to go on strike. In order that the Union or the Collective Bargaining Agent may resort to strike, it must also conform with the various ingredients laid down under section 26 of the Industrial Relations Ordinance, 1969. One of the ingredients is that when the Union or the Collects e Bargaining Agent wants to serve a strike notice, it must do so within seven days after tte expiry of ten days allowed for bilateral negotiations.
20. In the result this legal objection is also sustained.
21. Objection No. 5.--Tbe application is incompetent as the period of strike mentioned in the alleged strike notice is 21 days whereas under the mandatory provision of section 28 of Industrial Relations Ordinance, 1969 it cannot exceed 14 days. As already mentioned above strike notice Exh. DO is dated 5-9-1974 and the Union was proposing to go on strike on 28- 9-1974 at 6 a.m. In other words the period of strike notice is 21 days. Whereas according to section 28 of the Ordinance the period of strike notice has to be 14 days. Under the law within 14 days of the strike notice the Conciliator has to settle the induttrial dispute and if he fails, he has to issue failure certificate. Conciliator, however, in order to settle the dispute can extend the period of 14 days only if both the parties agree. No party is empowed to extend the period of 14 days uniliterally. Under section 43 of the Ordinance it is provided that no industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner by a collective bargaining agent or an employer, ln the present case industrial dispute has been raised in accordance with law. Hence it cannot be deemed to exist.
22. In view of the above this legal objection is upheld.
23. Objection No. 6 --The application is incompetent as the petitioner- Union is not a properly constituted Union and has, therefore, no locus standi to file the present application. This objection was not seriously pressed and is therefore, overruled.
24. Objection No. 7.--The petitioner-Union is not competent to file the present applicat on as it does not fulfil the requirement of registration under section 7 of Industrial Relations Ordinance, 1969.
25. Objection No. 8.--The application does not disclose any cause of action, therefore, it is liable to be rejected.
26. Both these objections were not pressed before the learned Labour Court as it is evident from the judgment. These objections are, therefore, overruled.
27. In view of my findings on objections Nos. 2, 3, 4 and 5,1 accept the appeal, set aside the interim award of the learned Labour Court and dismiss the application filed by respondent-Union under section 32(1-A) of Industrial Relations Ordinance, 1969.