1. MUHAMMAD YAQUB ALI. J.--Messrs Marker Alkaloids Limited, Quetta, respondent, bled as application in the Labour Court under section 34 of the Industrial Relations Ordinance, 1969, hereinafter referred to as 'the Ordinance' for declaring the notice of strike issued by the collective bargain--ingagent of the Employees, appellant herein, under section 26 (3) of the Ordinance as illegal. The application was dismissed by order dated 28th June 1974, but on a writ petition filed by the respondent, a learned Judge of the Sind & Baluchistan High Court has, on 12th September 1974, set aside the order of the Labour Court and declared the notice of strike illegal. Leave to appeal from the order of the High Court was granted on 1st November 1974, to consider whether the interpretation placed by the High Court on section 26 of the Ordinance was correct. It also appeared that there was conflict of opinion on the point in the High Court of Sind & Baluchistan.
2. The relevant facts are few and simple. A dispute arose over the refusal by the respondent to pay bonus to its employees for the year 1973. To press their demand the appellant served a notice on the respondent under section 26(1) of the Ordinance that till such time the bonus was paid, the workers will observe a token strike of 2 hours each day. The legality of the notice was challenged by the respondent in the local Labour Court. At the early stage of the proceedings, an understanding was reached between the parties. The workers gave up the strike. The application under section 34 of the ordinance Bled by the respondent was withdrawn but tae demand for payment of bonus remained intact.
3. The demand for bonus was communicated to the Works Council and. Included in the agenda of the meeting held on 19th play 1974. The decision taken on item No. 8 of tire agenda reads :-- "8. Bonus. The demand for 2 months humus for the year 1973 was made. Discussions were held.
4. Employer pointed out that the company having incurred losses in the year, at., bonus was payable: The members again requested to convey their request to the, Directors that question of granting monetary subsidy be considered."
5. On 15th April 1974, the general body of the worker met and decided to go on strike in case the demand for bonus was not abet. On 16th May 1974, the appellant gave notice (Exh. A/1) to the respondent. A copy of it was served on Mr. T. N. Hodiwala, General Manager of the respondent who was also its representative on the Works Council. As the respondent. Did not enter into negotiations with the appellant or settlement of the dispute, the appellant gave a further notice under section 26 (3) of the Ordinance to the respondent that in case bonus for the year, 1973 was not paid to the workers they will go on strike with effect from 10th June 1974.
6. The respondent instead of entering into bilateral negotiations with the appellant again took recourse to the Labour Court and filed another applica--tion under section 34 of the Ordinance claiming that the notice of strike was illegal. The principal ground urged in support of the application was that no notice under section 26 (1) of the Ordinance was served on the employer which must precede the notice of strike under section 26 (3) of the Ordinance. From this omission, it was inferred that no industrial dispute had arisen within the purview of section 43 of the Ordinance which provides that no industrial dispute snail be deemed to exist unless it has been raised in the prescribed manner: ._It was also maintained that the employer having suffered loss during the year 1973, they were, in law, not obliged to pay bonus to the workers.
7. In the written statement filed by the appellant on 13th June 1974, it was pleaded that notice under section 26 (1) was served on Mr. T. N. Hodiwala, representative of the respondent on 16th May 1974, and his signatures obtained on a copy of the notice (Exh. A/1). It was further claimed that workers were, in law, entitled to receive bonus notwithstanding loss, if any, suffered by the employer.
8. In the proceedings which ensued, the respondent denied the genuineness, of the signature of Mr. T.
9. N. Hodiwala on the notice (Exh. A./1). A private Handwriting Expert was examined by the respondent who supported this plea. Acting on his report, the Labour Court found that notice (Exh. A/1) was not served on the respondent but hold the notice of strike _ valid as notice under section 26 (1) was earlier served by the appellant on the respondent on 17th April 1974. On the basis of this notice, re was held that the dispute over non-payment of bonus was communicated to the respondent as required by section 26(1), the demand was discussed in the meeting of the Works Council held on 11th May 1974, and rejected by Mr. T. N. Hodiwala on behalf of the respondent. This, in the opinion of the Labour Court, fulfilled the requirements of subsections (1) and (2) of sec--tion 26 of the Ordinance before the notice under subsection (3) was giver, on the 27th May 1974. The notice of strike was accordingly held to be legal, Aggrieved by the order of the Labour Court, the respondent filed Writ Petition No. 35 of 1974 in the Sind & Baluchistan High Court reiterating the grounds set out in the application under section 34 of the Ordinance, The petition was accepted by a learned judge who held thatthe requirement to give notice of an industrial dispute under section 26 (1) was imperative and in Its absence notice given under section 26 (1) Was illegal. The earlier notice dated 15th April 1974, on which the Labour Court had relied V; S;5 held to be of coo effect as no bilateral negotiations W taken. Place within 10 days as required by subsection (2). In till view, the notice of strike given by the appellant on 27th May 1974, was held to be illegal.
10. On hearing the learned counsel for than parties and -taking into con--sideration the relevant provisions of the Ordinance as well as the evidence placed on the record of the Labour Court, we have concluded that the notice of strike given by the appellant co the respondent ten 27t4 May 1974, was in accordance -Kith law and the High Court has erred in declaring it illegal.
11. Section 26 of the Ordinance provides as under; :--- "26.- (1) if at any time an employer or collective bargaining agent finds that are industrial dispute has arisen or is likely, the employer or, as the case may be, the collective bargaining agent, fray com--municate his or its view in writing either to the works Council or to the other party so, however,, that where the views, so communicated to the Works Council, a copy of the communication shall also be sent to the other party.
(2) Can receipt of the communication under subsection (1). The Works Council or the party receiving it shall try t6' settle the dispute within ten days of the receipt of the communication by bilateral negotiations 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 Conciliator and Authorities mentioned in clause (xxiv) of section 2.
(3) Where a settlement is not reached between the employer andthe 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, the employer of the collective bargaining agent may, within seven days from the end of the period referred to in subsection (2), serve on the other party to the dispute a notice of lock-out or strike, as the case may be, in accordance, with the pro--visions of this Ordinance."
12. Section 27 makes provision for appointment of Conciliators for specified areas.Under section 28, the period of a notice of lock-out or strike given under subsection (3) of section 26 shall be fourteen days. Section 29, provides that a copy of the notice shall simultaneously be delivered to the Conciliator who shall, as soon as possible, call a meeting of the patties to the dispute for the purposes of bringing about a settlement. The next relevant provision of the Ordinance is section 43 which provides 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.
13. Our own appraisal of tire evidence placed on the record of the Labour Court is that the notice dated 16th May 1974, under section 26 (1) of the ordinance was served on Mr. T. N. Hodiwala notwithstanding that Mr. Zaka A. Malik, Handwriting Expert, who appeared as witness of the respondent, reported that the questioned signatures of Mr. T. N. Hodiwala on notice (Exh. A/1) and specimen signatures (Exh. A/2) were different in character and by different persons in support of the plea that a copy of the notice (Exh. A/1) was served M. T. N. Hodiwala, the appellant examined Abdul Salam, R. W. 1, who total as follows :--- "I am literate. I have studied tip to Middle Class. On the night of 16th May 1974. Mr. Faqir Muhammad gave me notice (Exh. A/1) for theservice on Mr. Hodiwala, the Engineer of the applicant's firm, Mr. Hodiwala met me in the factory premises at about 8-30 a.m. On 17-5-1974 and I delivered the notice Exh. A/1. Mr. Hodiwala signed. Exh A/1-A in my presence. I then handed over the notice Exh.
14. A/1Mr. Faqir Muhammad. I am a member of the Executive Committee of the respondent's Union.
15. Cross by Mr. 8asharatullah.
16. I have delivered many notices on behalf of the respondent to Mr. Hodiwala. Either the President or the General Secretary of the Union marks the number on the letter issued by the Union. I produce tire letter addressed by the Union as Exh. A/ 5. I am also one of the participants of the strike. It is incorrect to suggest that I have forged the signatures Exh. A-1/A and that I am falsely depos--ing in the Court to justify the strike."
17. The proceedings of the Labour Court wore concluded with the following statement of Mr. T. N.
18. Hodiwala :-- "The matter was referred to the Works Council but no settlement was arrived at.
19. The application under section 34 was filed by Mr. T. N. Hodiwala an he acted throughout as a representative of the respondent in the proceeding before the Labour Court. It is significant that although he entered the witness box immediately after Abdul Salam had made the above statement in his presence, Mr. T. N. Hodiwala did net deny iris signature on the notice Exh. A/ 1.
20. We have ourselves examined the report of Mr. Zaka A. Malik and compared the signatures of Mr. T.
21. N. Hodiwala on the application under section 34 and a number of other documents on the file of the Labour Court, which, to a naked eye, resemble very closely with his signatures on the notice Exh.
22. A/1. There is also no reason why Abdul Salam should have felt constrained to forge the signatures of Mr. T. N. Hodiwala on the notice. A meeting of the general council of the employees Union was hold on 25th May 1974. It was decided in the meeting to give a notice to the employer under section 26 of the Ordinance. There was no physical difficulty in serving copy of the notice on Mr. T. 'V.
23. Hodiwala who, a Manager of the respondent, was always accessible to the employees at the factory premises. As we know the demand was raised in the Works Council meeting held on 11th May 1974, and rejected by the respondent, the only means left to the workers for compelling the respondent to accept the demand was to give notice of strike. As a step in that direction, a notice under section 26(1) was to be given either to the respondent or to the Works Council. There is overwhelming probability that a copy of the notice Exh. A/1 was served on Mr. T. N. Hodiwala, but as the Labour Court has found to the contrary, the appeal has to be decided on the assumption that the notice under section 26(1) dated 16th May 1974, was not served on the respondent.
24. If notice (Exh. A/1) is ruled out, the notice under section 26 (3) given on 27th May 1974, is not ipso facto rendered illegal. As seen, Mr. T. H. Hodiwala admitted that the dispute was referred to the Works Council. "This is also apparent from item No. 8 of the Minutes of the Meeting held on 11th May 1974, which has been reproduced earlier. The requirement of subsection (1) of section 26 that as soon as an industrial dispute arises it may be communicated to the Works Council, or to the employees or the collective bargaining agent. As the case may be, was thus amply fulfilled.
25. Under subsection (2) of section 26 of the Ordinance, thereafter it was the duty of the respondent to enter into bilateral negotiations with the appellant to settle the dispute but as we know, instead of adopting this course, the respondent rejected the demand for payment of bonus on the ground that it had suffered loss during the year 1973. This is manifest from the minutes of the meeting of the Works Council and the statement made by Mr. T. N. Hodiwala.
26. It was contended by Raja Muhammad Anwar, appearing for the respon--dent that a copy of the communication, sent to the Works Council under section 26 (1) of the Ordinance, was not sent to the respondent. But this did not render the communication or the notice under subsection (3), which followed it, illegal. Firstly, the notice sent by the appellant to the respon--dent on 17th April 1974, had posted it with the industrial dispute which bad arisen over non-payment of bonus for the year 1973; secondly, the communication to the Works Council had been conveyed to the respondent before the meeting held on 11th May 1974. The words used in the Minutes are;"The employer pointed out that the company having incurred losses in the year, no bonus was payable."
27. The Minute thus furnishes conclusive proof of the fact that the demand made by the workers was communicated to the respondent before the meeting of the Works Council was held on 11th May 1974.
28. The learned Judge in the High Court, however, took the view that the provisions of subsection (t) of section 26 of the Ordinance are mandatory, and if no communication is sent in accordance with it, the subsequent notice issued under subsection (3) is illegal. Another fault found by the learned Judge fn the High Court with the notice of strike is that bilateral negotia--tions were not held within 10 days of the receipt of the communication as required by subsection (2) of section 26 of the Ordinance. For reasons which appear hereafter, we are unable to subscribe to this view.
29. Section 26 (2) does not require that even if the demand communicated to the employer by the collective bargaining agent of the workers or vice versa is rejected, the Works Council or the party receiving the communication- shall, within 10 days of the receipt of the communication, settle the dispute by entering into bilateral negotiations. Once the demand is rejected, the next step envisaged in section 26(2) of entering into bilateral negotiations cannot be taken. In such a case, a notice of strike issued under subsection (3) without entering into bilateral negotiations would, in our opinion, be perfectly legal, otherwise, the employer as well as the workers will be invested with the power to render the provisions of section 26 nugatory by simple refusing to enter into bilateral negotiations after an, industrial dispute has arisen.
30. The learned Judge differed with the interpretation placed by the Labour Court on section 26 of the Ordinance and held that its provisions with regard to sending of communication under subsection (1), entering into bilateral negotiations and giving notice of strike within seven days of the failure of bilateral negotiations are mandatory.
31. The interpretation placed by the learned Judge on section 26 of the Ordi--nance has not commended to us. The period of 10 days prescribed in sub--section (2) are intended to expedite settlement of industrial dispute. The Ordinance does not contemplate that if the employer and collective bargaining, agent of the workers enter into negotiations beyond the period of 10 days or the negotiations continue beyond the period, the entire process under section 26 shall exhaust itself. The same is true if notice of strike is given beyond the period of 7 days after the negotiations have failed.
32. The learned Judge has held that the word 'may' in section 26 of the Ordinance is used in compulsive and not permissive sense. We are unable to agree with him. The provision of a notice in a beneficial statute, such as the Ordinance should not be equated with similar provisions in laws dealing with rights in property. For example, if notice terminating a tenancy is not given by the landlord to a tenant in time the tenant acquires the right to renewal of the tenancy. There are similar provisions in the Electricity Act. If the notice terminating the licence is not given to the licensee in time, the licence is renewed for a further period of 20 years. The Ordinance with which we are dealing is: however, designed to promote harmony between the workers and the employer and does not deal withproperty rights.
33. In coming to a contrary conclusion, the learned Judge has relied on Johnson and Johnson Employees Union v. Johnson and Johnson (Pakistan) Limited (1974 PLJ (Tr. C.) 213) in which the Appellate Tribunal observed: "The provision of section 26 of the Ordinance is a mandatory provision. The said provision confers certain rights on the workers It confersupon the workers the right to strike. In all the Ordinances and enact--ments prior to the Industrial Relations Ordinance, 1969, 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 in section 26 of the Ordinance. One of the ingredients is that if the Union desires to go on strike, it must do so within 7 days from -the end of the period of 10 days of the receipt of the communication of industrial dispute. In the present case, the strike notice was given much after the expiry of seven days of the period of 10 days for bilateral negotiations. The strike notice on this ground was also bad in law."
34. In our opinion, the observations of the Appellate Tribunal do not lay down a correct statement of law. A notice of strike given beyond 7 days of the failure of bilateral negotiations cannot, in principle, or on the interpretation which we have placed on section 26 of the Ordinance, be said to be illegal. The period of 10 days prescribed in subsection (2) and period of 7 days in subsection (3) are intended to infuse a sense of urgency among the parties to the industrial dispute there is no indication in the Ordinance that if the time schedule laid down in section 26 is not conformed to strictly, the entire process laid in section 26 for settlement of an industrial dispute will fall through.
35. The word 'may' used in section 26 of the Ordinance is, therefore, directory and not mandatory as held by the learned Judge in the High Court.
36. In Pakistan Petroleum Worker's Federation v. Burmah Shell Oil Storage & Distributing Company (PLD 1961 SC 47SF) this Court ruled out the objection taken by the employed that the award given in that case by the Tribunal under the Industrial Disputes Act, 1947, after the expiry of the last extension of time by the Government was invalid. It was observed.
37. "There is however another aspect of these provisions for limitation of time, and that is that they express the intention of the Legislature that industrial disputes shall be taken up for investigation and shall be enquired into and either reported upon or adjudicated upon with the greatest possible expedition. In employing the expression 'shall submit its award within a period not exceeding three months from the date of reference', the emphasis may %ell b- upon expedition, without making the validity of the action depend upon the exact observance of the limit of time. This interpretation is supportable by the consideration that the jurisdiction is given to a Tribunal, not in relation to any outside factor which imposes a time limit upon the necessity for that jurisdiction, belt simply that the Tribunal should decide the matter. Instances of the other kind readily come to mind. During the Second World War, a great number of special jurisdictions were created under rules and other instruments, which came to an end with the War. In cases of emergency such as those brought about by disturbance in particular areas, special Courts are established whose jurisdiction ceases when the declaration of emergency expires. These are jurisdictions which essentially are temporary, the time being limited not by the necessity of the case or the cases, but by some extraneous consideration such as the duration of a war or of an emergency. Here, the assumption in the relevant sense is that a described state of affairs' affecting the relations between the employers and the workers in an industry must be composed, and the task is entrusted to a Tribunal. No extraneous considerations apply and therefore it is reasonable to assume that considerations of mere time will not operate to take away the jurisdiction. 1 he imposition of limits of time upon the successful conclusion of the adjudication must, therefore, be intended for the purposes of securing expedition."
38. In the view taken by us, the notice of strike given by the appellant to the respondent on 27th May 1974, was valid in law notwithstanding that it was given beyond the period of 7 days after the demand for bonus was rejected by the respondent in the meeting of the Works Council held on 11th May 1974.
39. Raja Muhammad Anwar, appearing for the respondent tried to raise a new objection that a copy of the notice under subsection (3) of section 26 was not endorsed to the Labour Officer as required by the Rules framed under the Ordinance. The respondent did not raise this objection in its application under section 34 No enquiry was therefore, held by the Labour Court on the point. Moreover, the provisions made in the Rules on which the learned counsel relies, are directory in nature and not com--pulsive so as to render a notice of strike or lock-out illegal if a copy of the notice under section 26 (2) is not endorsed to the Labour Officer concerned.
40. On the conclusions reached by us, the appeal is allowed and the order passed by the High Court is set aside, restoring thereby the order passed by the Labour Court on 28th June 1974, by which the application filed by the respondent under section 34 of the Ordinance for declaring the notice of strike given by the appellant on 27th ,May 19'14, was dismissed.
41. The appellant will be paid the costs of these proceedings throughout.
42. SALAHUDDIN AHMED, J. -I agree., MUHAMMAD GUL, J.-I agree.