JUDGMENT This is an appeal against the award dated 12-2-1975 of. Punjab Labour Court No. 1, dismissing the petition under section 32(1-A) of Industrial Relations Ordinance, 1969.
2. It is alleged that Ejaz Brothers Canvas Industries Workers' Union, appellant, sent a demand notice, the copy of which is Exh. P. 1, through registered post on 24-9-1974 which was received on 25-9-1974 vide Acknowledgment Receipt Exh. P.
3. Messrs Ejaz Brothers Canvas Industries, respondent, did not make any effort to settle the dispute through the bilateral negotiations. Subsequently strike notice was sent to the respondent by registered post vide postal receipt Exh. P. 4 dated 7th October 1974.
The notice could not be served on the respondent and it was received back with the remarks that the Managing Partner was out of Lahore. Subsequently conciliation proceedings started, which ended in a failure and Conciliator issued failure certificate Exh. P.
7. The appellant thereafter filed a petition under section 32(1-A) of Industrial Relations Ordinance, 1969 which was dismissed as already mentioned above.
3. Aggrieved by the award the appellant has preferred this appeal, 4.
The respondent resisted the dispute and pleaded inter alia that the petition filed by the appellant was not maintainable because neither the demand notice nor the strike notice had been served on the Management by the appellant-Union. According to the respondent a letter was received from the Assistant Director Conciliation dated 14-10-1974 and in response thereof when the respondent attended the office on *22-10-1974, he informed the Conciliator that neither the demand notice nor the strike notice had been received by him. The Conciliator thereupon handed over to him copies of demand notice and strike notice, both bearing the same date 23- 5-1974.
5. The learned counsel for the appellant contended that so far as demand notice was concerned it should be presumed that it had been received by the respondent in view of the postal receipt Exh. P. 2 and the acknowledgment receipt Exh. P.
3. In support of his contention he relied on the judgment of the Privy Council in the case, Harihar Banerji and others v. Ramshahi Roy and others (1), wherein it was observed:-- "If a letter properly directed, containing a notice to quit, is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office, and was received by the person to whom it was addressed and that presumption could apply with greater force to letters which the sender has taken the precaution to register, and is not rebutted but strengthened by the fact that a receipt for the letter is produced signed on behalf of the addressee by some person other than the addressee himself." In the present case since the respondent did not produce any evidence in rebuttal, it is presumed that the notice was received by the respondent.) The objection of the respondent that he had not received the demand notices is, therefore, overruled. | 6. Now the next point for consideration is as to whether the strike notice is in accordance with law. According to section 26(2) of Industrial Relations Ordinance, 1969 the employer and the Collective Bargaining Agent' have to settle the dispute within 10 days of the receipt of the communication by bilateral negotiations. According to section 26(3) of the said Ordinance if the employer and the Collective Bargaining Agent fail to settle the dispute, the employer or the Collective Bargaining Agent may within 7 days from the end of the period of 10 days mentioned above serve on the other party in the dispute a notice of lock-out or strike as the case may be. According to section 23 of the said Ordinance the period of notice of lock-out or strike shall be 14 days. From the documentary evidence on the record I find that both the demand notice and strike notice bear the same date i.e., 23-9-1974. There is a certificate recorded in the strike notice to the effect that the dispute was represented to the employer on 25-9-1974 although the strike notice itself is dated 23-9-1974. In the strike notice it was mentioned that the Union was proposing to go on strike on 19-10-1974. In this manner the notice of strike is of 26 da^s and not of 14 days as required by section 26. (1) AIR 1918 P C 102 7. The learned counsel for the appellant, however, contended that the date given in the strike notice is a clerical mistake and that in any case the provisions of section 26 of the Ordinance are not mandatory but directory. From the record I find that Muhammad Riaz, General Secretary, who appeared as (P. W. 1) admitted in cross-examination that both the demand notice and strike notice bear the same date i.e., 23*9-1974. He was the person who had issued both these notices. He nowhere mentioned that this was due to a clerical mistake. He also did not explain as to why this mistake was committed. Therefore the contention of the learned counsel for the appellant that it was a clerical mistake has no force. Further the contention that the provisions of section 26 of the Ordinance are directory also has no force because the provision confers upon the worker the right of strike, ln all the Ordinances or enactments prior to Industrial Relations Ordinance the worker had no right to go on strike. In order that the Union may resort to strike, it must also conform with the various ingredients laid down under section 26 of the Industrial Relations Ordinance. One of the ingredients is that when a Union desires to go on strike, it must do so within 7 days from the expiry of 10 days allowed for by bilateral negotiations. Therefore, provisions of section 26 are mandatory and not directory. I am fortified in this view by the judgment of the Sind JLabour Appellate Tribunal in the case, Johnson and Johnson Employees' Union v. Johnson and Johnson {Pakistan) Ltd. (1). In the present days. Under the law within 14 days of the strike notice the Conciliator has to try to settle the industrial dispute and if he fails then he is to issue a failure certificate. The Conciliator, however, in order to settle the dispute can extend the period of 14 days only if both the parties agree. No party is empowered to extend the period of 14 days unilaterally. 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 Collective Bargaining Agent or the employer. In the present case industrial dispute has not been raised in accordance with law and hence it cannot be deemed to exist.
8. In view of the above I find no merit in this appeal which is hereby dismissed. (1) 1975 PLC 205