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Petitioner: Messrs ELITE PUBLISHERS (Pvt.) Ltd. VS Respondent: EMPLOYEES' UNION
Court Name: Labour Court Judge(s): A. J. Bachani Title: Messrs ELITE PUBLISHERS (Pvt.) Ltd. vs EMPLOYEES' UNION Case No.: <p>Application No, 1 of 1987, .</p> Date of Judgment:1987-12-19 Reported As: 1989 PLC 398 Result: Application dismissed
Judgment ORDER ' M/s Elite Publishers Limited are the employers and Publishers Employees Union is a C.B.A., which is a registered Trade Union. The company is a Limited Company and engaged in the Printing and Packaging, with the strength of 260 labour force. 2. On 17-1-1987 union served notice under section 26(1), I.R.O. Followed by the notice of strike on the employer. The conciliator intervened in the matter by opening the conciliation dialogue. First meeting was called on 22nd March, 1987. Mr. Mutahir represented the union as the General Secretary, Mr. Muhammad Siddique Rafiq represented the employer as Assistant Manager. The matter was discussed. It was adjourned to 24-3-1987 with mutual consent. 3. Conciliation proceedings were extended till 15-4-1987. 4. On 2-4-1987 the office-bearers of the union revoked the consent and the consent for the extension of the conciliation proceedings was withdrawn. The conciliation officer had not declared the conciliation as failure on 2-4-1987 because it was extended. The conciliator did not use the jurisdiction of section 31 for reference to arbitration, for there was extension of conciliation. 5. From 4th April, 1987 the workers went on strike. On 11-6-1987 the Conciliation Officer issued certificate of failure as the date of failure being 15-4-1987. 6. This was called as unfair labour practice because of illegal strike. The matter was taken to the N.I.R.C. Under section 22-A(8) (g), I.R.O. His lordship prohibited the strike, which according to the employer was illegal. Union did not comply with the orders and the directions which were of exhaustive nature. On 9th April, 1987 Union filed Constitutional Petition against the order of the Humble Commission and also made the prayer that the Conciliation Officer issue Certificate of the declaration of conciliation as failed on 2-4-1987.
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7. The prayer of the employer is that no Industrial Dispute shall be deemed to exist unless it is raised in the prescribed manner. The employer has the right secured under the I.R.O. That the conditions preceding the compliance of the provisions of sections 26(1), 26(3) and 31 be resorted by Conciliation Officer before declaring as a failure of conciliation. Consequently the failure of conciliation on 15-4-1987, supports the employer that strike was illegal and the right of the management against the workers proceeding on strike was valid. 8. The last para of the relief asked for is very significant that any other relief which Court deems fit in the circumstances. Therefore, the Court has taken the note of this particular prayer at the time of final decision, for there are number of points of factual nature having inter-relation to the application under section 34, namely whether the dismissal of the workers during pendency of the application before Sind Labour Court and its effect thereon and the undertakings given by the employer before Honorable Appellate Tribunal. Otherwise the precise prayer of the employer is whether the conciliation stage was properly followed by the union to justify strike and the Industrial Dispute. 9. The written statement of the union is very simple that application under section 34 is not maintainable as no guaranteed right has been infringed. The issue in application under section 34, I.R.O. Is not the industrial dispute and therefore the application is not maintainable. 10. The union also has further drawn the Court's indulgence that the violation of the I.R.O. In respect of strike or lockout is governed under section 46, I.R.O., to which the Labour Department has the jurisdiction. Otherwise the Industrial Dispute is raised in accordance with law, supported by the Charter of Demands on the expiry of the notice period or to refer industrial dispute. In other words the union has also emphasized that it is the party who raises the dispute can file application under section 34, I.R.O. The union also has given the brief summary by showing the facts that the notice of strike dated 11-3-1987 was received by the Conciliator on 12-3-1987. It was not attended by the authorized persons of Petitioner as contemplated under section 30(2) of I.R.O. The fourteen days' notice expired on 26-3-1987. Workers went on strike on 4-4-1987 instead of 27-3-1987. Conciliation commenced on 12-3-1987 under section 41(ii)(b). Conciliation concluded on the date of the expiry of the notice which is 26-3-1987. Therefore, it was a legal strike. Prohibition could only be made by the Government of Sind and this Court has no jurisdiction unless the Industrial Dispute is referred by Government of Sind. 11. This matter was pending before the Honorable National Industrial Relations Commission in respect of the prohibition of the strike. The application was also filed before Second Sind Labour Court by the employer which had the territorial jurisdiction. It was transferred to Fourth Sind Labour Court, with other matters pending before the Honourable Commission. The application also came for hearing under section 45 of the I.R.O. This Court also passed the detailed order. 12. Mr. Shafiq Qureshi has represented the union and Mr. Mahmood A. Ghani for the employer. Both parties have put up the case before the Labour Court as to their respective versions in application under section 34, I.R.O. The gist of the matter has been referred to know the background and what Mr. Shafiq Qureshi has challenged the maintainability and further justified the legality of strike, more particularly to show that the demands of bonus involved Rs. 8,00,000. Wages for the strike period about 5 lacs. Other demands of 15 lacs. The total demand comes to 28 lacs. The grievance of the union is that the employer do not observe the labour law and even the Minimum Wage Ordinance. 13. The real contest before them is whether the conciliation proceeding was followed in accordance with the provisions of the I.R.O.? Whether the application was maintainable, as what the union has challenged is the jurisdiction? ' REASONS
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' Indeed, two very senior counsel, and the labour representatives, have appeared and rather made contribution, in the assistance of the difficult questions of law before the Labour Court. And the facts, particularly in the case like strike, where on one hand, the legality of strike is justified, and on the other hand, the illegal strike is pleaded to seek declaration from the Labour Court, that what the action, purported to have been taken by the employer, was legal in respect of the dismissal of workmen, despite the prohibition, which was not followed by the union. In other words, there was breach of the law. 2. Mr. Shafique Qureshi, the senior representative, has very ably, presented his point of view that what he requires, to justify that there was justification of the strike and the agreement, if assumed to have been extended at the conciliation dialogue, as envisaged by the proviso mentioned in the I.R.O. Was directory of the nature. 3. He has further taken the critical view of the action of the employer, in initiating application under section 34, I.R.O. To enforce the right, what he calls that it is the union who had to raise Industrial Dispute, for adjudication in the Court and therefore the application is not maintainable. 4. Mr. Mahmood Ghani has very intelligently, referred to the legal provisions to contend, by referring to the judicial pronouncement of the highest Court on labour law, that the agreement of extension by mutual consensus, according to him is the part of the conciliatory stage of dialogue and binding with all the legal incidents of enforcement, before the union can raise the Industrial Dispute. Because, what he conceives of that every stage in the I.R.O. Of conciliatory nature, if arrives to bring Industrial harmony and relationship, in the sound sense of dispute, the proviso is mandatory rather to call as directory. Further what Court can gather that application filed by Mr. Mahmood Ghani is, in the nature of declaration that the right, what he enjoys under law is secured to employer. The law, he refers to be understood, in the reference to the context of the I.R.O., and therefore according to Mr. Ghani's contention, so ably worded, the Industrial Dispute can only exist, if it is raised in accordance with the Ordinance and its applicability, in its real implementation. 5. Mr. Mahmood Ghani, has also precisely referred to this aspect that strike, if it is illegal, the jurisdiction of the Court can be assumed directly, what to refer section 46-A which Mr. Shafique has resorted to as an aid to his contention. 6. With this contention of their respective points of view, it is pertinent to refer to certain factual aspects which have the legal bearing to this controversial issue, regarding dismissed employee, during strike period which lasted for sufficient time resulting in the economic loss, which was not in the national interest and to the employer, is also important in touch in this matter, when after the prohibition order under section 45, I.R.O., two versions were placed, firstly to declare lock-out as illegal by which entry was disallowed of the workers and other contention was that the dismissal of workers had already taken effect, and the employer's contention was that the declaration of the lock-out as claimed by the union, was not the correct version. The Court as an interim measure lifted the lock-out which apparently, looked the action of the employer without jurisdiction, but also leaving this fact to decide about its after effect, by the pronouncement in this decision, to resolve all the controversies. Therefore, this aspect, what Mr. Ghani has asked in the final prayer, seeking Court's indulgence, to grant any other relief, what is just and proper, in the circumstances. In other words, the justness of the order, in the facts which have co-relation to the actual dispute to have resulted otherwise in the complication as to the effect, of the order passed under section 45. 7. Two aspects of the law are before the Court: (i) Firstly, whether the strike was illegal? What is the legal position? (ii) Whether conciliatory stage was properly followed of dialogue by mutual extension? If not, whether it is directory after the notice period of expiry of strike? 8. When the cross-examination has been done. Conciliatory file has been called. But what the Court feels is that if the extension, was directory, and limited to that point, nothing more is to be
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stretched, what is called justification of strike. This is the question before the Court followed by a secondary question whether the justification of the strike was based on the plausibility of the demands of the union. The question before the Court therefore will be, whether the union, followed the law, in raising the Industrial Dispute within its context. 9. The Court therefore refers to certain legal provisions in this regard. 10. Section 26 reads that if the employer or C.B.A. Finds that Industrial Dispute has arisen, it may communicate his views either to the works council or to other parties. Subsection (2) follows the bilateral negotiations within 10 days of the receipt of communication Subsection (2) follows that if the settlement is not reached, and there is failure of negotiations, it may within 7 days from the end of the period in subsection (2), serve a notice of strike or lock-out as the case may be, on the other party. Section 28 deals with the period of limitation of 14 days. Section 29 follows that if party to Industrial Dispute serves notice of strike, it shall deliver a copy to the conciliator and also copy to the Labour Court. Section 30 refers to the proceedings before the Conciliator, who calls the parties, who are nominated and authorized to negotiate, unless the employer is called in person. Subsection (3) puts the legal obligation on conciliator of the amicable settlement. Subsection (4) relates to the report to the Provincial Government. Subsection (5) which is relevant in this case means that if the conciliation proceedings continued for further period there should be agreement by the parties. Section 31 follows the stage of arbitration if conciliation fails. Section 32 follows that if the parties do not agree of arbitration the workmen can go on strike. But the party raising the dispute any time before or after the commencement of strike can make application to the Labour Court for adjudication of dispute. Then there are relevant provisions of section 43, I.R.O. That no Industrial Dispute shall be deemed to exist unless it h.As been raised in the prescribed manner by C.B.A. Section 45, I.R.O. Gives the powers to the Labour Court to prohibit the continuance of strike or lock-out. Whether the strike be legal or illegal or lock-out legal or illegal. Section 46. I.R.O. Provides conditions that in what cases strike is illegal, if it is declared without giving to the party a notice of strike or in contravention of section 44(b) it is declared in consequence of industrial dispute, raised in the manner other than that provided in section 43(c). It is continued in contravention of an order made under section 32 (section 33) (section 45) or subsection (3) of section 46-A(d). It is declared during the period in which settlement is in operation. 11. Section 46-A deals with the procedure in case of illegal strike or lock-out, giving the powers to the Assistant Director Labour to hold enquiry and report to the Labour Court. 12. The Court has the benefit of reading the evidence of both the respondent and the petitioner. With this also, the Court has also the evidence of the conciliator, with the minutes of the meeting of the conciliatory dialogue, of the intermidiary reconciliation, in the context of the union demands, before conciliator who has given this impression. 13. The statement of the diary of 22-3-1987 and 22-4-1987, reflect the entire position how the conciliation failed. 14. The diary of 22nd March, 1987 shows that conciliation was extended by mutual concurrence. The diary dated 2-4-1987 shows that the employer did not accept the demands and raised the objection that Mr. Shafiq Qureshi, can not make the statement or attend the conciliation meeting being the Legal Advisor of the union. Likewise there was also objection of the Union's President that the statement of Mr:Muhammad Siddique, Labour Officer was not correct. He had no authority to give the statement for the management, for he is still the General Secretary of the pharmaceutical labour union. He has also no authority to represent the employer. He further clarified that when statement of the union was recorded Mr. Siddique was not present and therefore this statement of the union has no connection with Mr. Shang Qureshi. In the minutes of meeting, further observation was made and recorded saying that the Director of the Company has stated to the workers that the union has taken the matter to the Labour Court the management will not consider the demand.
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Union therefore withdraws the consent of the extension of conciliation meeting. In the same diary the reference is also made to the statement of Labour Officer what is recorded that he is not prepared to accept any demand for conciliation and the meeting may fail. This diary is dated 2-4- 1987, and very infirmative to see the intention of the parties, despite the extension upto 15-4-1987 which is the crucial point. But at the same time, the statement of Mr. Siddique that they are not prepared to accept any demand and the meeting to fail, is also the point of interest, to be read further, the state of the mind of the Union's officials, that in what circumstances the extension was revoked or withdrawn. 15. The evidence in the Court, has also been mere reproduction of the same intentions but to test the accuracy through cross-examination that why the extension was withdrawn. The dates are not disputed but it is emphasized by the respondent's witness that it is not correct that conciliation failed. He has also been frank to admit that he had an authority to attend the meeting and to make offer and counter offer to sign the settlement. Similarly the President and General Secretary, also attended the meeting. No objection was raised on his incompetency. The date of the strike is also admitted that it was 4th of May, 1987, when the conciliation certificate was issued on 16-6-1987. The witness of the respondent has also taken the definite stand that he was present when the statement of the President and General Secretary was recorded. He has not denied his presence and also taken the definite stand that Mr. Shafiq Qureshi gave the statement in his presence. He has also stated that the conciliator did not ask for the authority letter. He has also denied as false that he is leader of Federation and therefore disqualified. He has also taken the definite stand that the extension of the conciliation meeting was not subject to the confirmation on 2-4-1987 or the conciliation was failure. General Manager also had given the financial position by referring to the balance sheet and explained about the bonus payments or whether the bonus are paid during the losses. He has also further stated that he fully extended co-operation by physical presence before the conciliator and sent the representative Mr. Muhammad Siddique. He has also made clear statement that he made offer 50/60 for package deal per worker, which did not include the bonus. But the union did not accept this offer. He has also shown that the basic salary included allowance and also it is correct that the basic salary as per settlement did not include conveyance allowance, house rent, canteen allowance and cost of living allowance. He has no knowledge whether any agreement reduced the basic salary. He has admitted that he was not present on 2-4-1987 or he had to attend the meeting but did not attend. He has also denied the suggestive question that there was agreement with him and Mr. Anwar Minhas that on 2nd April, he will attend the conciliation meeting. He has admitted that they have not paid the bonus due to losses and also the uniforms etc. 16. Mr. Anwar Minhas is the President of the Joint Labour Federation. He has also supported about the settlement three years before that increase of 90 rupees allowances were given to the workers and prior to this settlement the company had increased the basic pay by Rs. 184 per month. 17. Regarding conciliation sittings on 2-4-1987 he has admitted his presence and stated confidently that he had talk with Mr. Zahid before 2-4-1987 and stressed that if they are serious to enter into settlement, they should attend the conciliation meeting personally on 2-4-1987. If he did not attend the conciliation will fail. There was nothing in writing of the extension of the date with the consent. On 2-4-1987 the President of the union was also present with the General Secretary. He also admitted that he did not personally attend the conciliation on 22-3-1987 or 2-4-1987. He has admitted that the workers proceeded on strike from 4-4-1987 and there was no failure certificate. He also did not attend the dialogue what was the talk between the management and the C.B.A. He also did not inform the conciliation officer in writing that Mr. Zahid will attend the conciliation meeting. He has not seen the Loss and Profits Accounts being unconcerned with the company.
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18. These are the relevant points of the evidence to show whether the strike was justified. Whether it was legal strike in accordance with the provisions of Industrial Relations Ordinance. 19. What the employer wants relief from the Court that this be declared by the Labour Court that the workers went on strike on 4-4-1987, while the conciliation failed on 15-4-1987. In other words there is no compliance of provisions of sections 26(1), 26(3) and 31, I.R.O. 20. Mr. Mahmood Ghani has made submissions, more on this aspect of conciliation that the stage of conciliation is mandatory obligation and therefore the extension by mutual agreement as contemplated by subsection (5) has been violated rendering the strike illegal. 21. The Court has referred the provisions of sections 26, 27, 28, 29, 30, 31, 32, 41, 43, 46, 46 and 45 of the Industrial Relations Ordinance. These are the provisions regarding conciliation, arbitrations, Industrial Disputes, the legality of strikes. 22. Subsection (5) of section 30, to which the emphasis is made of mutual consensus, has been shown by Mr. Shafiq Qureshi as directive, rather than, to have the imperative obligation. This section, also refers to the status of the parties, who will represent, firstly there should be nomination, and authorization, to negotiate and enter into settlement. In other words, by the very wordings of nomination and authorization, if there is no express wordings, that authorization shall be in writing or nomination be in writing, the subsection (2) does not lose its effect if parties appear before the conciliator with no objection, and, then follows that if conciliator desires he may call the employer. 23. Section 49 may also be referred where it provides that no party to Industrial Dispute, be represented by legal practitioner in any conciliation proceedings and the workman be represented by C.B.A. Likewise employer be represented by due authorization of person. The words emphasised in section 30, of authorization to negotiate by simple nomination or authorization with further addition in section 49 that employer shall be represented by duly authorized person. To this extent, the Labour Court finds the different language that in subsection (2) of section 30, the word, is parties to the dispute and in section 49 there is clarification, for the employer of the person of due authorization. Although, the word writing, is not used, in both these sections, but authority to negotiate and enter into an agreement appears to be of general nature with this qualification, of due authorization. In other words what the Labour Court feels, that the person authorized, must be enjoying the confidence of the employer, as in this case no objection was raised by the employer. It is not the objection of the union which is to prevail, as long as the confidence is of the employer, in the person to enter into negotiation, unless the emphasis was made, by the conciliator to call the employer personally. Likewise there is a bar for the legal representative to represent in the Industrial Dispute, during the stage of conciliation proceedings. But there was no disqualification for Mr. Shafiq Qureshi to sit in the proceedings, if not negotiating himself to render him disqualified. In other words, he had no entitlement, being legal representative, of representation, obviously the object and scheme of the Ordinance what the Labour Court understands that no third person should come as an impediment in the way of negotiation. Similarly the legal representative should avoid, even to sit in the proceedings. But the presence of Mr. Shafiq cannot render the proceedings ineffective. But here new questions have been raised that the consent was revoked by the intervention of Mr. Shafiq Qureshi to which it has been denied by the president of the union that Mr. Siddique was not present at that time to say that the statement was given by Mr. Shafiq Qureshi, because he came late. Mr. Siddique of course has denied his late coming. There is no specific ruling of conciliator. But what the Court finds that no extension in writing is given nor the consent is revoked in writing. Court therefore relies on the evidence of the conciliator. Exh: A/2 of course shows the signature of the president and Mr. Muhammad Siddique Rafi that the conciliation was extended by mutual consent, upto 15-4-1987. 24. Mr. Minhas President of the Federation has shown that he had told Mr. Zahid General Manager, to come on 2nd, else the conciliation will fail. This is not supported by any positive evidence, that
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any such talk was communicated to the conciliator between Mr. Zahid and Mr. Minhas. 25. The evidence of the conciliator who is the official functionary, under the Ordinance, is to be accepted what happened during the dialogue, how the conciliation failed, in what circumstances, which, he has shown in his diary. The only dispute, now arises whether the conciliation failed on 2nd or the failure certificate issued on 15th was within the jurisdiction. If the diary is seen, it appears that the negotiations failed by denying the concessions. If the conciliator extended the matter, it was because there was consent as per subsection (5) of section 30. 26. What the Labour Court feels, from the…
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