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Petitioner: WORKERS UNION MESSRS INDUS CHEMICALS & ALKALIS LTD. VS Respondent: MESSRS INDUS CHEMICALS & ALKALIS LTD., KARACHIWORKERS' UNION
Court Name: Labour Appellate Tribunal Judge(s): Inamullah Khan Title:WORKERS UNION MESSRS INDUS CHEMICALS & ALKALIS LTD. vs MESSRS INDUS
CHEMICALS & ALKALIS LTD., KARACHIWORKERS' UNION Case No.:Appeal No KAR-25 of 1971Appeals Nos. KAR-371 and 25 of 1971Appeal No. KAR-371 of 1971Appeal No. KAR-25 of 1971 Date of Judgment:1971-05-31 Reported As: 1972 PLC 220 Result: firm, reject Judgment DECISION These are to connected appeals against an award dated the 27th of February 1971, whereby the learned Chairman of the Second Sind Labour Court, Karachi, ordered the re-instatements of S. I. Raza and Masood Hasan Jdani, who were the President and General Secretary, respectively, of the Indus Chemical and Alkalis Limited Workers' Union (hereinafter called the Union) and 167 workmen and refused to re-instate other 8 workmen. The workmen were to be re-instated with back wages, benefits and continuity in their service. Appeal No. KAR-371/71, is by the Union against the order refusing to re-instate 8 workmen, while Appeal No. KAR-25/71, is by the Management against the order of re-instatement of 169 workmen. The facts giving rise to the appeals briefly put are these. 2. Messrs Indus Chemicals and Alkalis Limited (hereinafter called the Company) went into production in 1966. Indus Chemicals and Alkalis Limited Workers' Union was recognized by the Company in December 1968. On 20th April 1970, the Union sought to amend its Constitution by op-.Ring its member-- ship to other industries belonging to the Company. It sought permission of the Registrar, Trade Unions to approve its amended Constitution. The Registrar by its letter dated 25th May 1970, refused to grant permission to amend the Constitution of the Union. The Company on the same date, i.e. 25th May 1970, informed the Union that it had become illegal because of the amendment of its Constitution. The Union, however, after receipt of the letter from the Registrar, Trade Unions, held a General Body Meeting on 29 May 1970 and withdrew the amendment. 3. The Union, on 27th April 1970, gave a notice under section 26 of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance) On 16th May 1970, the conciliation proceedings havingth
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failed, the Union gave a Notice of Strike under section 28 of the Ordinance. Thereafter, conciliation meeting was held on 26Th May 1970. The Company, on the plea of re-organization, on 30th May 1970, terminated the service of 9 surplus employees including S. I. Raza and Masood Jilani, President and General Secretary of the Union. Notice of termination of service was served on 8 of the employees, except S. I. Raza, on 30th May 1970. 4. According to the Company, on 31st May 1970, S. I. Raza and Masood Jilani went to the Chief Engineer, Mr. Siddiqi, at about noon the and told him that they will go on strike from 1st June 1970. In the afternoon, they had a scuffle with Mr. Shaft, Security inspector of the Company. A report was lodged with the police on the same date about the incident. On 1st June 1970: Raza and Mani came to the factory and stopped the workers from going to work. They also went to to Bus Stops where they stopped the buses of drivers Nazir Ahmad and Chand Zaheer and told the workers, who were coming to the factory that there was a strike and that they should go back to their houses. The Company, on 1st June 1970 informed the Labour Director that there was an illegal strike. On 2nd June 1970, the Company posted a notice on the board informing the workers to resume duty or to submit explanations otherwise action will be taken against them. Some persons did submit their explanations, which were found to be unsatisfactory and they were dismissed from service on 12th June 1970. In all 167 workmen according to the Union were dismissed. 5. The Union made an application under section 34 of the Ordinance on 20th June 1970, praying for re-instatement of the workmen, whose services had been dispensed with during the pendency of conciliation proceedings, to withdraw the lock-out and pay the workmen their salaries for the period of lock-out. The learned Labour Court on 21st November 1970, after recording the evidence of the parties, dismissed the application of the Union on the ground that it was not a Collective Bargaining Agent. This conclusion was based on the ground that there was another Union and no referendum had been held to determine the Collective Bargaining Agent. On appeal, however, relying on section 52 of the Ordinance I did not agree with the conclusion of the learned Court and remanded the case for determination on merit. 6. The Company raised several pleas. It contended that the Union by amending its constitution became illegally constituted and, therefore, the application was not maintainable. That on 5th December 1969, an agreement effective for 18 months was signed by the parties, one of the terms of agreement was that no demand involving financial liability could be raised during the period. The striken notice containing demands, which could not be raised, was bad in law. The services of 9 persons were terminated in the course of bona fide re-organization of the Company, which was in contemplation of the Management since a long the. So far as the incident of 1st June 1970 is concerned, it was alleged that there was a fight between the rival Unions, the Union urging for the strike while the rival Union resisted the same. The police had to be summoned to maintain law and order. Disciplinary action was taken against the persons, who had gone on illegal strike and those who were absent from duty. The Company, it was urged, did not violate any law or withdrew any rights guaranteed under the law and, therefore, the petition was not maintainable. 7. On behalf of the Union, three witnesses were examined namely, S. I. Raza, the President of the Union, Masood Jilani, the General Secretary of the Union and Shamim Asghar. The Company examined 9 witnesses, namely, Abdul Shakoor, Assistant Sub-Inspector of Police, Chand Zaheer, Bus Driver Nazir Ahmad, Bus Driver, Khalid Rashid Siddiqi, Chief Engineer, Javed Anjum, Assistant Manager, Mohammad Abdul Jaleel, Assistant to the Managing Director S. Sikandar Ali Shah, whose bus was intercepted, Ghulam Rasool. Worker, who was present in the Canteen when S. I. Raza is said to have addressed the workers and Mohammad Shafi, Security Inspector of the Company. 8. The learned Court, on the contentions of the parties framed the following points for determination :- (1) Whether the petitioners were entitled to raise the industrial dispute?
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(2) Whether the settlement entered into between the parties on 5-12-1969 would bar the dispute now raised? (3) Whether the re-organization carried out and the subsequent dismissals were colourable and mala fide? (4) Whether there was a strike or a lock-out, and whether the same was legal? (5) Whether the petition as framed would be maintainable? (6) Whether the petitioners were entitled to any relief? 9. In respect of the 1st ground, Mr. Shamsi, the learned Advocate for the Company on to-fold grounds, contended that the Union was not entitled to raise an industrial dispute. He contended, in the first place, that there being no evidence to show that the demands raised by the Union, were approved by the Members in a General Body Meeting. The learned Court came to the conclusion that it was not necessary for a notice under section 26 of the Ordinance that the same should have been approved in a General Meeting. In the second place, Mr. Shamsi had contended that the Constitution of the Union having been amended, the Union lost its entity. The learned Court came to the conclusion that the amended Constitution having not been approved of by the Registrar of Trade Unions, the Union cannot be said to be not duly constituted one. 10. On the second issue, the learned Court came to the conclusion that the agreement dated 5-12- 1969, did not bar the present dispute. 11. The learned Court tried Issues Nos. 3 and 4 together and came to the following conclusion :- "I am clearly of the opinion that S. I. Raza and Masood Gilani who were allegedly retrenched, and 167 workers (as mentioned In the Schedules) who were dismissed were deprived of their jobs, as a result of victimization and unfair labour practice in a colourable exercise of the power. The lock-out was illegal, because an industrial dispute had been raided; a conciliation meeting had already been held and the next one was fixed for 2-6-1970. It was the inalienable right of the workers to go on strike, after fulfilling the requirements of law. They lead pursued their course in accordance with law." 12. On Issue No. 5, the learned Court held that the Petition was maintainable. 13. In the result, as already stated, S. I. Raza and Masood Jilani alongwith 167 workmen were ordered to be re-instated with back wages benefits and with continuity of their service While the relief in respect of Majid Husain Zaidi and 7 others was disallowed. 14. Before I consider the contentions raised by Mr. Ali Ahmad Fazeel, the learned Advocate for the Company and Mr. Ali Amjad, the learned Advocate for the Union, it would be useful to clarify the position as to the number of workmen the Union wanted to be re-instated. In this connection, a reference may be made to the application of the Union under section 34 of the Ordinance. The relief runs as under :- "It is, further prayed that the Court may be pleased to order the re-instatement of the General Secretary and the President of the Union petitioner and of the workmen whose names are included in the List Schedules I and II to declare that the lock-out effected by the respondent and change in the service conditions is illegal, to require the respondents to withdraw the lock-out and to pay to all workmen their due salary for the period of lock-out." 15. Schedule I is at page 41 of the record of the learned Court. It gives the names of 9 persons including S. I. Rata, the President of the Union and Masood Hasan Jilani, General Secretary of the Union. Schedule II is at page 47 of the record of the learned Court. It gives the names of 29 workmen. If the application under section 34 of the Ordinance was strictly construed, the Union would not be entitled to claim reinstate--ment of more than 38 persons. It is, however, noteworthy that in para. 13 of the application under section 34 of the Ordinance, there is an addition of "and others" in the handwriting of someone which is not initialled. Para. 13 runs as under :-
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"That subsequent to the lock-out the respondents have issued charge-sheets to a large number of workmen falsely alleging that they have gone on an illegal strike from 1st June 1970, and have also mala fide and illegally terminated the services of workmen whose names are given in the Schedule II and others (the latter to words are in the handwriting of someone without any initial) without recourse to the provisions of law and/or holding any enquiry, and when in fact they had been locked-out." 16. I would not, in the circumstances which I would presently mention, bind the Union to the relief which they have claimed, i.e., the re-instatement of only 38 workmen. In the first place, no objection has been taken that the Union is not entitled to anymore relief than what it has claimed. In the second place, as would appear from the statement of Mr. Abdul Jaleel, Assistant Managing Director of the Company, who produced Exh. R. W. 6/14, which is a list of persons, who had been dismissed from service. It appears from Exh. R. W. 6/14 that 101 persons were dismissed from service on the ground of continuous absence from duty for more than 14 days, 13 persons were dismissed from service on the ground that they were on an illegal strike and 24 persons were dismissed from service on the ground of absence from duty the wore than 10 days and also because they had gone on au illegal strike. The total number thus comes to 138 persons, who had been dismissed from service. It is worth mentioning at this stage that according to Masood Haan Jilani, General Secretary of the Union 167 persons were dismissed by the Company. Jilani stated as under :- "The persons who had been locked-out on the 1st are 159 in number. I produce the list as Exh. A. W. 3/2. Apart from these 159 workers, the services of 8 other workmen had been terminated on 30th of May or thereafter." 17. It was necessary to refer to the statement of Jilani as the learned Court had ordered as under :- "The termination of the services of S. I. Raza and Masood Jilani and the dismissal of the other 167 workmen (other particularised in the Schedules on different dates in the month of June cannot be upheld." 18. There are three Schedules, to have been filed along with the application under section 34 of the Ordinance and the third is Exh. A. W. 3/2. The names of 159 workmen are given therein. There is on the face of it, some confusion in the operative portion of the order. At best, the Union was claiming for re-instatement of 159 persons together with 8 others. The total came to 167 workmen. The Court granted relief to 169 persons after refusing to grant relief to 8 persons. In these circumstances, namely, that no objection was taken by the Company that the relief claimed is limited to only 38 persons and the case of the Company also being that it had dismissed 138 persons, I would not limit the Union to the relief it has claimed. 19. I would now proceed to consider the contentions raised by Mr. Ali Ahmad Fazeel, the learned Advocate for the appellant Company. It was very strenuously contended in the first place, that the application under section 34 of the Ordinance was not maintainable as the pre-requisites for an application under section 34 of the Ordinance were not fulfilled. In this connection, he relied on section 43 of the Ordinance, which reads as under :- "No industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner by a collective bargaining agent." 20. The learned Advocate submitted that in order that an industrial dispute may be deemed to exist it was necessary that the provisions of section 26 and section 28 of the Ordinance should have been complied with. Under section 26 of the Ordinance if the Collective Bargaining Agent finds that an industrial dispute is likely to arise it shall communicate its views in writing to the other party. If the negotiations, which may start after the notice, fail, the Collective Bargaining Agent will give 21 days' notice of strike to the employer under section 28 of the Ordinance. It was only after these preliminaries have been gone into, it was contended, that an application under section 34 of the Ordinance could be made.
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21. The argument of Mr. Fazeel appears to be plausible as under section 34 of the Ordinance no industrial dispute could be deemed to exist unless it was raised in the prescribed manner. But on a careful analysis of the provisions of the Ordinance, I am clearly of the view, for the reasons which I would mention presently, that it is not necessary for an application under section 34 of the Ordinance to have recourse to the provisions of sections 26 and 28 of the Ordinance. 22. Prescribed has been defined in section 2(xix) of the Ordinance, which means, "prescribed, by rules." No Rules have so far been prescribed specifically for raising an industrial dispute. At any rate, even if the Rules had been prescribed for raising an industrial dispute it would not have been necessary to follow the Rules prescribed for raising an industrial dispute in order to make an application under section 34 of the Ordinance. A clear distinction exists between section 43 and section 34 of the Ordinance. It would be useful to reproduce section 34 of the Ordinance, as it stood before its amendment on 17th October 1970. It runs as under :- "Any party to an industrial dispute relating to a matter arising out of any right guaranteed or secured to an employee or workman by or under any law for the the being in force or an award or settlement may apply to the Labour Court for, adjudication of the dispute." 23. Industrial dispute is defined under section 2(xiii) of the, Ordinance, which means : , "any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen which is connected with the employment or non--- employment or the terms of employment or the conditions of work of any person ;" 24. It would appear from the above definition of industrial dispute that the scope of section 34 of the Ordinance is very limited. It is not in respect of all industrial disputes that the Collective Bargaining Agent can make an application under section 34 of the Ordinance. It is only in respect of a limited kind of industrial dispute, namely, "which is guaranteed or secured to workmen by or under any law for the the being in force or an award or settlement." It follows, therefore, that the application which can be made under section 34 of the Ordinance is not in respect of an industrial dispute as envisaged by section 43 of the Ordinance, but in respect of relief which the workmen are entitled under any law or award of settlement. The Collective Bargaining Agent, for instance, cannot raise an industrial dispute under section 34 of the Ordinance for bonus, house rent or uniform. These disputes can be raised only as industrial disputes. 25. The scheme of Industrial Relations Ordinance, 1969, it stood prior to its amendment on l7th October 1970, was recognize the supremacy of the Collective Bargaining Agent. The individual workman as under 1968 repealed Ordinance could not approach the Industrial Court under the present Ordinance even if he was dismissed or removed from service during the pendency of an industrial dispute. The 1969 Ordinance, while giving importance to Trade Unions divided the industrial disputes into 'to parts, namely, industrial disputes as defined under section 2(xii) of the Ordinance and the one as stated under section 34 of the Ordinance. The intention of the Legislature appears to be that in case of industrial disputes which have no basis under any law, award or settlement, the Collective Bargaining Agent should give notice to the employer conveying its demands. The Legislature provided an opportunity for negotiations between the Collective Bargaining Agent and the employer through the intervention of the third party, the Conciliator. When conciliation failed, the Collective Bargaining Agent was given a right to bring pressure on the employer through strike notice. The workers could not go on strike immediately on giving a notice but had to wait for 21 days, providing sufficient the to the employer to consider the demands of the Collective Bargaining Agent. After the strike-notice the conciliation proceedings were to start again. In case of failure of conciliation proceedings the Conciliator was to try to persuade the parties to refer their dispute to an Arbitrator agreed upon by the parties After every method to bring about a peaceful settlement between the parties had failed, the Collective Bargaining Agent could go on strike in accordance with the notice of strike. In case the strike continued for more than
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30 days, the Provincial Government could by order in writing prohibit the strike and forthwith refer the dispute to the Labour Court. It is noteworthy that the Collective Bargaining Agent could not on its own in spite of its Demand Notice and Strike --Notice approach the Labour Court for determination of its dispute. On the other hand, the Collective Bargaining Agent could approach the Court directly for redress of the grievances of the workmen in respect of those industrial disputes which arose out of any right guaranteed to workmen by or under any law or an award or settlement: It is important to note that even if the procedure prescribed for raising an industrial dispute was gone into the Collective Bargaining Agent could not approach the Court directly, except through the Provincial Government. 26. In the present case, some assistance can be derived from the Marginal Note to section 34 of the Ordinance, which runs as under :- "Application to Labour Court." This is indicative of the intention of the Legislature read along with the contents of section 34 of the Ordinance that the Collective Bargaining Agent could apply to the Court directly without taking recourse to the detailed procedure for raising an industrial dispute. On the face of it, where certain right is guaranteed under any law, the question of negotiation through the Conciliator did not arise. The aggrieved party could go directly to the Court and get the relief to which it was entitled under any law. Section 47 of the Ordinance, for instance, guaranteed that conditions of service would remain unchanged while conciliation proceedings or proceedings are pending before an Arbitrator, a Labour Court or Tribunal. An employer could not dismiss a workman without the permission of the Conciliator, the Arbitrator, the Labour Count or the Tribunal, while any such proceeding was pending before anyone of them. If there was violation of the guarantees provided under section 47 of the Ordinance, the Collective Bargaining t Agent could approach the Court under section 34 of the Ordinance without taking recourse to section 26 or section 28 of the Ordinance. The object of industrial Relations Ordinance, 1969, is not to create difficulties in the way of the Collective Bargaining Agent or the workmen to get quick redress of its grievances. 27. The conclusion that section 34 of the Ordinance is not depended on the procedure laid down under section 26 and section 28 of the Ordinance is borne out by subsection (5) of section 35 of the Ordinance. It runs as under :- "(5) A Labour Court shall- (a) adjudicate and determine an industrial dispute which has been referred to it under section 32 or section 33 or relating the a matter in respect of which an application is made to it under section 34 ; (b) (c) (d) 28. On the one hand, the Court would have jurisdiction to proceed with an industrial dispute when it is referred to it by the Provincial Government and on the other hand, it can proceed to adjudicate the industrial dispute relating to a matter in respect of which an application is made to it under section 34 of the Ordinance. 29. Mr. Fazeel, the learned Advocate for the Company relied on the case between Abbas Ali Shah v. WAPDA, Lahore (1970 PLC 376) in support of his contention that there must exist an industrial dispute before the Collective Bargaining Agent can move the Court under section 34 of the Ordinance. That case does not help the learned Advocate as the question before the Tribunal in that case was as to whether an individual could move the Court under section 34 of the Ordinance or not. In order that industrial dispute may exist it must be raised by a Collective Bargaining Agent and not by an individual workman. At any rate, no Rules have so far been prescribed for raising an industrial dispute within the meaning of section 43 of the Ordinance. The procedure prescribed
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under section 26 or section 28 of the Ordinance is quite different from what may be prescribed under any of the Rules for raising an industrial dispute relating to a matter guaranteed under any law. It cannot be said in the absence of Rules for raising an industrial dispute relating to a matter guaranteed under any taw that no dispute exists. The case of the Collective Bargaining Agent under the; application under section 34 of the Ordinance is that the Company has violated the provisions of section 47 of the Ordinance. Mr. Fazeel also relied on to cases of the Labour Court of East Pakistan, reported in 1970 PLC 67 and 1971 PLC 58. These cases are of no assistance as the point raised before me was not in issue before the learned Court. 30. For the reasons given above, I have come to the conclusion that the application under section 34 of the Ordinance; as it stood prior to 17th October 1970, is maintainable. 31. It was contended by Mr. Ali Amjad, the learned Advocate for the Union, that in case the Court were to hold that section 34 of the Ordinance, as it stood prior to 17th October 1970, was not applicable, the application may be treated under the present section as it stands after the amendment. The amended section 34 reads as under :- "Any collective bargaining agent or any employer or workman may apply to the Labour Court for the enforce--ment of any right guaranteed or secured to it or him by or under any law or any award or settlement." 32. Mr. Fazeel, the learned 'Advocate for the Company relied on a number of authorities in support of his contention that right to sue cannot be given retrospective effect ; it is only the procedural right which can be given retrospective effect. Having held that…
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