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Petitioner: STAR TEXTILE MILLS LTD., KARACHI VS Respondent: THIRD SIND LABOUR COURT, KARACHI JUDGMENT
Court Name: Sindh High Court Judge(s): Durab Patel, Z. A. Channa Title:STAR TEXTILE MILLS LTD., KARACHI vs THIRD SIND LABOUR COURT, KARACHI
JUDGMENT
Reported As: 1973 PLC 376 Result: Petition dismissed Judgment JUDGMENT Z. H. CHANNA, J.-This Constitutional Petition seeks to challenge the validity of the order, dated 10th May, 1973, of the Sind Labour Court No. 111, whereby it reviewed its orders of 20-4-1973 and directed the re-instatement of respondents Nos. 3 to 198 with continuity of ,service. The petitioner is a public limited Company and runs a Textile Mill at S.I.T.E, Karachi, in which about 3908 workers are employed. Respondents Nos. 3 to 198 were employees of the petitioner and engaged ire the Ring Section of the Mill. The workers of the Mill have established three separate registered Trade Unions namely, (1) the Star Textile Mills Workers' Union, (2) the Star Textile Mills Employees' Union and (3) the Star Textile Mills Azad Labour Union, of which the first named is the Collective Bargaining Agent and respondent No. 2 in this petition. On 27-3-1973, the Double sides of the Ring Section, contrary to the past practice, refused to carry pontes (rovings) from the Simplex Section to their section, as a result of which the work in the Ring Section came to a standstill. The petitioner thereupon moved the Labour Department of Govern--ment for inquiry and action under section 46-A of the Industrial Relations Ordinance, 1969, hereinafter referred to as the Ordi--nance. The inquiry was conducted by an Assistant Director, Labour Welfare, who on 5-4-1973, submitted a report under section 46-A (1) of the Ordinance to the Labour Court, and also sent a notice, as required by subsection (2) of the said section, to the peti--tioner to be prepared to appear before toe Labour Court on a date to be fixed by that Court. A copy of the notice wag also forwarded to the Labour Court. It is stared in the petition that notice of the report and for appearance in the Labour Court was also given by the Assistant Director to the Collective Bargaining Agent, but no copy of the said notice has either been filer or produced by the petitioner. In his report, the
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Assistant Director, Labour Welfare, has stated that in his opinion the refusal of the workers of the Ring Section to work until and unless ponies (rovings) were supplied to them by the Management in the Ring Section, Instead of carrying the same themselves, as per past practice, amounted to an illegal strike. On the basis of the above report, the Labour Court, on 4-4-1973, issued notice to the petitioner and the Collective Bargaining Agent for appearance on 5-4-1973, and on the latter date it passed an order holding the strike to be illegal and directing the workers of the Ring Section to call off the strike within 24 hours. According to para. 6 of the petition, notice was parted on the same date, both at the main gate of the factory and in the Ring Section, apprising the workers of the above order. As the striking workers failed to resume work, the Labour Court, apparently on the request of the petitioner, passed a further order on 10-4-1973, direction', them to resume work within 24 hours failing which the Court may order their dis--missal under section 46-A (7) of the ordinance. The Court further directed that one copy of its order, along with the list of the workers in the Ring Section, be sent to the petitioner for displaying it on the Notice Board of the Factory and another copy of the order and list be sent to the Collective Bargaining Agent for circulation among the workers and exhibition in the Union Office. According to para. 8 of the petition not only copies of the order of the Labour Court and the list of the striking workers were displayed on the main gate of the Mill and in the Ring Section and circulated amongst the workers by the Collective Bargaining Agent and pasted on their Notice Board, as directed by the Labour Court, but further notice in respect of the illegal strike were also published by the petitioner in the "Dawn" dated 13-4-1973 and the "Hurriyat" dated 14-4-1973". The workers of the Ring Section, however, did not call off their strike and resume work and accordingly the petitioner moved the Labour Court for passing orders of their dismissal. On' 17-4- 1973, the Labour Court examined Muhammad Yakub, the Vice-President of the Collective Bargaining Agent, who supported the petitioner's claim in regard to staging of an Illegal strike and pasting of the order of the Court along with the list of striking workers on the Notice Board of the Union and the Mill, and further stated that the workers were informed of this order. The Labour Court, thereupon, passed a further order on 20-4-1973, directing the dismissal of the workers of the Ring Section, numbering 311. It, however, further ordered that the court may review its orders if good and sufficient cause is shown by any affected worker within seven days. It appears that 122 out of the 311 workers dismissed by the order of the Labour Court tendered written apology and were taken back in service by the petitioner. The remaining ly6 workers, who are the present respondents 3 to 198, made a joint application to the Labour Court on 25-4-1973 requesting for review of its order 20-4-1973 and alleging that the Management and the Collective Bargaining Agent have kept them in the dark and manipulated the whole case. In support of this application three of the workmen-respondents filed their affidavits. The application was Opposed by the petitioner and on its behalf the Personnel and Welfare Officer of the Mill filed his affidavit. On 10-5-1973, the Labour Court passed the impugned order for the re-instatement of respondents Nos. 3 to 198, subject to the condition that they would not be entitled to the wages benefits for the period of their absence from duty. The order was based on the ground that besides the Collective Bargaining Agent there were two other registered Trade Unions, with whom the dismissed workers were concerned, that under the provisions of section 45-A (2) of the Ordinance it was necessary to Issue notice to all three of them and that as no notice was issued to these two Trade Unions it was reasonably probable that the applicant workers may not have come to know of the Court's order dated the 5th and 10th April 1973. It may be stated here that in a counter-affidavit filed by 'Muhammad Ahmad, the Personnel and Welfare Officer of the petitioner, he has stated that 57 more of the dismissed workers have since
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been re-instated and one has been paid off: As the various orders passed by the Labour Court are based on the provisions of section 46-A of the Ordinance. It would be advantageous to reproduce subsections (1), (2), (3), (4), (7) and (10) of the said section which are material for the purposes of this petition. They read as follows:- "46-A. Procedure in cases of illegal strikes and lock-outs.- (1) Notwithstanding anything contained in any other provisions of this Ordinance or fn any other law for the time being in force, an Officer of the Labour Department not below the rank of Assistant Director, Labour Welfare, hereinafter in this section referred to as the officer, may make enquiries in such manner as he may deem fit into an illegal strike or illegal lock-out in a factory and make a report to the Labour Court. (2) After completing the enquiry the Officer shall serve a notice on the employer and the Collective Bargaining Agent or the registered Trade Union concerned with the dispute to appear before the Labour court on a date to be fixed by that Court. (3) The Labour Court, may within ten days following the day on which It receives a report under subsection (1), after considering the report and hearing, such of the parties as appear before I'6 order the strike to be called off or the lock-out to be lifted. (4) If the employer contravenes the order of the Labour Court under subsection (3) and the Court Is satisfied that the continuance of the lock-out i3 causing serious hardship to the community or is prejudicial to the national interest, It may issue an order for the attachment of the factory and- for the appointment of an official receiver for such period as it deems fit, and such period may be varied from time to time. (7) If the workers contravene the order of the Labour Court under subsection (3), the Court may pass orders of dismissal against all or any of the striking workers. (10) Where a part, to art Illegal strike or lock-out, on being required or bound under this section to appear before the Officer or the Labour Court, does not so appear, the Officer or Labour Court, as the case may be, may, besides taking such other action as may be admissible under this Ordinance, proceed ex parts: A bare perusal of the above provisions clearly indicate that the foundation for the jurisdiction of the Labour Court to order a strike to be called off or a lock-out to be lifted and to pass other orders under section 4&A is the submission to it of a report under subsection (1) by the appropriate Labour Officer and the giving of notice to the parties concerned under subsection (2). The importance of notice lies riot only in the fact that It gives effect to a basic principle of natural justice that no order prejudicially effecting a party should be passed without giving it notice and an opportunity of a hearing, but that further by bringing the contesting parties face to face before the Labour Court there would be a possibility of a settlement, resulting In the termination of the strike or lock-out as the case may, which is the object of the section. It Is an admitted position that in the instant case a report under section 46-A(I) was submitted by an Assistant Director, Labour Welfare, to the Third Labour Court, Karachi. The controversy, however, is regarding the giving of notice under subsection (2) of section 46-A. The contention of Mr. Fazeel, the - learned counsel for the petitioner, Is that the scheme of the Ordinance, under which the system of Collective Bargaining Agent was adopted in the Country, is that the Collective Bargaining Agent enjoys a dominant position qua the other Trade Unions and further since ft alone Is entitled, as provided In section 22(12) (b), to represent all or any of the workers in any proceedings. in those establishments or Industries where there is a Collective Bargaining Agent, notice under section 46- A (2) to it alone is required, and only In those establishments or Industries where there Is no Collective Bargaining Agent, Is notice required to be given to any other Trade Union concerned with tine dispute. Mr. All Amjad and Mr. I3ameed Siddiqui, who appear for respondents Nos. 3 to 198, have on the other hand contended that the key-words in section 46-A (2) are"concerned with a
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dispute, which has resulted in a strike or lock-out, such Trade Union must be given notice, even if there be a Collective Bargaining Agent. In order to appreciate the above contentions, It would appropriate not only to refer to the other relevant provisions of, the Ordinance, but also briefly survey the history of legislation in Pakistan to regard to the functions and rights of 'Trade Unions of workers, their power to start a strike and their right. to represent workers in industrial disputes. At the tinge of the establishment of Pakistan, the two laws, which held the field in respect of the above matters, were the Trade Unions Act, 1926, and the Industrial Disputes Act, 1941. The Trade Unions Act was enacted to provide for the registra--tion of Trade Unions, to specify their function, privileges and powers and other incidental matters. Chapter III of the said Act provided for the rights- and liabilities of registered Trade Unions. The Act neither specifically conferred on the Trail Unions, whether registered or unregistered, either the power to represent workers in any proceedings or to resort to authorise a strike. -However, section 15 of the Act specified the objects on which the general funds of a registered Trade Union could be spent. Clauses (c), (d) and (e) of the said section authorised expenditure from such funds on the prosecution or defence of any legal proceedings to which such Union or a member thereof was a party, if the same were taken for the purpose of scouring or protecting the rights of the Trade Union or any rights arising out of the relations of a member with his employer; the conduct of a trade dispute on behalf of the Trade Union or any member thereof and the payment or compensation to members for Ions arising out of a trade dispute. It may also be mentioned that In 1927, the Bombay Trade unions Regulations were issued under the provisions of sec--tion 29 of the Act and after the coming into force of the Govern--ment of India Act.1935, tire Central Government, in 1938, issued the central Trade Unions Regulations to respect of the Trade Unions whose objects extended beyond one Province. The Bombay Trade 1!rsions Regulations were subsequently re-named 9n 1951, so far as the Province of Sind was concerned, as the. Sind Trade Unions Regulations, under the provisions of section 3 o!' Sired Act 1 of 1951. There is, however; nothing in either thin Sind or the Central Regulation, which would be of any assistance in determining tile 1Qqueq arising out of the present petition. The Industrial Disputed Act, 1947, which came into f--orce l-4-1947, provided for the Investigation and settlement of Industrial disputes by or through Works Committees, Concilia--tion Courts Boards of Conciliation, Courts of Inquiry and Industrial Tribunals, which were required to be constituted, appointed or established. Section 24(1) of the Act declared which types of strikes and look-outs-were to be deemed illegal, while section 36 of the Act entitled a workman, who was a parry' to as industrial dispute, to be represented in any pro--ceedings under the Act by an officer ofa registered Trade Union. Under section 38 of the above Act, the Industrial Disputes Rules, 1947 were framed by the Central as well as Provincial Governments, including the Government of Sind. The two sets of rules were practically identical, except that the Central Rules were applicable, only to Industries, businesses and under--takings carried on by or order the authority of the Central Government or by the Federal Railway and to major ports, mines and oil fields while the Sind Rules were applicable to all other industries, businesses and undertakings in the Province of Sind. The Central Rules were subsequently extended on 6-10-1956 to Karachi, to the exclusion of the Sind Rules. In view of the fact that by then Karachi was the Capital of the Federation and was being directly administered by the Central Government. Rules 3, 4 and 6 of the said rules are relevant. Rule 3 required that an application for the reference of an industrial dispute to a Board, Court or Tribunal was to be made in the prescribed form, while rule 4 provided that such an application, and the statement accompanying it, in the case of workmen, were to be signed either by the President and Secretary, of a Registered Trade Union of the workmen or by five duly authorised representatives of the workmen. Rule 6 provided that notice to nominate their representatives on Board of Conciliation
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shall be sent by Government, In the case of workmen who are members of a registered Trade Union, President or the Secretary of the Trade Union. Reference may also be made to rule 52, which provided that the notice of strike to be given by employees in a public utility service was to be in the prescribed form. The form indicates that It was to be signed by the Secretary of the Union or the representatives of the employees elected at a meeting. The Industrial Disputes Act, 1947, was repealed and replaced by the Industrial Disputes Ordinance, 1959, which was pro--mulgated on 21st October 1959. Section 34(1) of the Ordinance, like section 36(1) of its predecessor Act, entitled a workman, who was a party to a dispute, to be represented in any proceedings under tile Ordinance by an Officer of a Registered Trade Union. In 1960, the Central Government framed the Industrial Disputes (Central) Rules, 196(), superseding the 1938 Rules. Forms A, D and I in the Schedule to the 1960 Rules are worthy of note. Form A prescribed the form in which an application under rule 3 was to be given by the employees of a non-public utility service for intervention of the Conciliation Officer o Form D was the form in which the workmen were to request the Industrial Court under rule 9 to adjudicate upon a dispute; wife Form I was the form in which notice of -strike under rule 52 was to be given by the employees in a public utility service. All these firms indicate that in the case bf workmen, they were to be signed either' by the Secretary of the Union or the representatives of the employees. In the same year as the above rules were framed, the Trade Unions Act 1926 was substantially modified, and Chapter III-E was added thereto by Ordinance KIV of 1960, providing for the recognition of registered Trade Unions by the employers on the fulfilment of certain conditions by such Trade Union. One of the rights conferred by the newly added section 28-D on the recognised Trade Unions was that their executive were entitled to negotiable with the employer in respect of matters connected with the employment, unemployment, the terms of employment, and the conditions of work of all or any of Its members. The importance of t hit above provisions lies in the fact that whereas under the Industrial Disputes Ordinance, the workmen had the right to be represented by the Officers of their Registered Trade Union, if they so chose, this provision conferred upon the executive of a recognized Trade Union the right to negotiate with the employer on behalf of the members of the Union. The principle of representation in Labour matters was they carried a substantial step forward. In September 1965 East Pakistan enacted the East Pakistanis Trade Unions and the East Pakistan Labour Disputes Act, replacing the Trade Unions Act, 1926 and the industrial Disputes Ordinance, 1959, respectively. West Pakistan followed suit and on 8th March 1968 promulgated the West Pakistan Trade Unions Ordinance and the West Pakistan Industrial Disputes Ordinance. In both the East and West Pakistan Trade Union Laws the system of recognized Trade Union, with the right to its executive to negotiate with the employer In respect of matters connected with the employment and conditions of work, was retained. The difference between the two laws on this point was whereas under the East Pakistan Act, the recognized Trade Union was entitled to negotiate In respect of the terms and conditions of work of all or any of the workers employed in the establish--ment or Industry, under the West Pakistan Ordinance, it was entitled to do so only In respect of its members. The recognition of a Trade Union under both the laws had to be by the employer, but if a Trade Union, which fulfilled the conditions for and wars entitled to recognition, was refused recognition by the employer, the Trade Union could approach the Registrar, who was given the power to direct the employer to recognise It. So far as the two Industrial Labour disputes laws are concerned, the provision entitling a workman, who was a party to an industrial dispute, to be represented by an Officer of a Trade Union was retained. Both these laws also contained provisions stating which strikes and lock-outs would be deemed to be illegal, and prescribed penalties for commencing, continuing oracting In furtherance of an illegal strike. Finally, on 13th November 1969, the President promulgated the Industrial
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Relations Ordinance, 1969, which repealed the two Batas and West Pakistan Trade Union Laws, the East Pakistan Labour Disputes Act, 1965, and the West PakistanIndustrial Disputes Ordinance, 1968. The new Ordinance was substantially modified by Ordinances Nos. XIX of 1970 and IX of 1972 and Acts Nos. V of 1972 and XXIX of 1973. The Ordinance did away with the system of recognised Trade Unions, with its inherent defect of depending upon the employer for -recognition and Introduced the concept of "Collective Bargaining Agent", which In the case of an establishment or group of establishment having only one registered - Trade Union was to be that Union, provided that it had as its members not less than one-third of the total number of workmen employed to such establishment or group of establishments and in case of there being more than one registered Trade Union in an establishment or group of establishments, which were competing for becoming the Collective Bargaining Agent, the Trade Union receiving the highest number of voter of all the workmen in such establishment or group of establishments in a secret poll conducted for the purpose by the Registrar of Trade Unions, or an officer authorised by him in this behalf, was w to declared the Collective Bargaining Agent. 'The rights of the Collective Bargaining Agent arc detailed in subsection (121 of section 22 of the Ordinance, which reads as follows:- "(121 The Collective Bargaining Agent In relation to an establishment or group of establishments shall be entitled to- (a) Undertake collective bargaining with the employer or employees on matters connected with employment, Peon-employ--ment, the term of employment or the conditions of work; (b) Represent all or any of the workman in, any proceedings (c) give notice of, and declare, a strike in accordance with the provision of this Ordinance; and (d) nominate representative of workmen on the Hoard of Trustees of any welfare institutions or Provident Feuds, and of the workers' participation Fund, established under the Companies Profits (Workers' Participation) Act, 1968." In addition to the above tights, the Collective Bargaining Agent has been given other privileges and functions under other provisions of the Ordinance Section 23 requires the employer, at the request of V a Collective Bargaining Agent, to deduct from the wages of the workmen, who arc members of a Trade Union, specified sums, with the approval of each workman, as their subscription to the funds of the Trade Union. Section 2.j-A has given the Collective Bargaining Agent the right to nominate shop stewards. Similarly, the representatives of the workmen, who are to participate in the management of a factory under section 23-B of the Ordinance as also the workmen's representa--tives on the Works Council constituted tinder section 24 are to be nominated by the Collective Bargaining Agent. Sections 26 and 29 to 32 are also relevant for the purposes of the present petition. Section 26 has empowered the Collective Bargaining Agent If it finds that an industrial dispute has arisen or is likely to arise, to communicate its views to the Works Council, which is required to try to settle the dispute, and in case no settlement is reached, the Collective. Bargaining Agent can serve a notice of strike, provided that a majority of the workers in the establishment or industry bas voted in favour of going oil strike. Section 29 requires a party, serving a notice of strike or lock-out, to simultaneously deliver a copy of such notice to tile Conciliator. Section 30 deals with the proceedings before the Conciliator Ira which the parties to the dispute arc required to be represented by parsons nominated by them and authorised to negotiate and enter Into an agreement binding on the parties, and In case of failure of conciliation, either the parties may refer the dispute to an Arbitrator under section 31, whose award shall be binding on the workmen or the employer may go on strike, or declare a lock-out, as tee case may be, under section 32. The other material provisions In the Ordinance, and on which Mr. Fazeel has specialty railed, are those contained in sections 34, 39, 43, 46(1)(6) and 49. Section 34, as it was originally enacted,
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authorised the Collective Bargaining Agent as well as a workman to apply to the Labour Court for the enforcement of any right guaranteed or secured to it or him by or under any law, award or settlement. However, the words or workman" have been deleted by Act XXIX of 1973, which was published In the official Gazette on 9th February 1973, with the result that under the said section only the Collective Bargaining Agent can now approach the Labour Court from the side of workers. Section 39 provides that a settlement, an award of an arbitrator; an award or decision of a Labour Court under section 37 or a decision of the Tribunal under section 38, in cases where the Collective Bargaining Agent is a party to the dispute, shall not only be binding on all the workmen employed in the establishment or Industry to which the dispute relates on the date on which the dispute first…
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