1992 PLP 895 (PLC(CS))

(7) If the workers contravene the order of the Labour Court under subsection (3), the Court may pass order of dismissal against all or any of the striking workers and, notwithstanding anything to the contrary contained in this Ordinance if the Court after holding such inquiry as it deems fit, records its finding that any registered trade union has committed or abetted the commission of such trevention, the finding shall have the effect of cancellation of the registration of such trade union and debarring all officers of such trade union from holding office in that or in any other trade union for the un-expired term of their offices and for the terms immediately following: Provided that the Court may review its orders if good and sufficient cause is shown by an affected worker within seven days of such orders of dismissal."

9. It is clear from the facts narrated above, that there has been proper compliance of subsections (1), (2) and (3). Mr. Ibne Ayub contended that notice of hearing was necessary to workers before the order of dismissal could be passed. However, he was not able-to substantiate it by any case-law. Mr. M.L. Shahani, amicus curiae supported the contention of Mr. Ibne Ayub and submitted that words `all or any of the workers' used in subsection (7) indicates the intention of legislature, that the learned presiding officer, before passing the order of dismissal, had to determine as to whether all workers or any of them wore on illegal strike in contravention of the orders of the Court passed under subsection (3). He submitted that this determination cannot be made by the Court unless the parties which in this case would be affected workers were heard before it was held that they had contravened the order of the Court and before the order of dismissal was passed. He also invoked the principles of natural justice which lay down that no person could be condemned unheard and cited.-certain case-law which I will discuss later.

10. Mr. A. Harm, on the other hand, submitted that the scheme of the law requires a speedy decision of the matter as the production of the entire factory had been stopped causing enormous loss not only to the establishment but also to the Nation in general. He further submitted that to meet with the principles of natural justice the proviso was added to subsection (7) giving opportunity to the workmen to file review application and by giving powers to the Labour Court to review its order if good and sufficient cause was shown. He further submitted that under section 22(12) (b) of Ordinance the Collective Bargaining Agent was entitled to represent all or any of the workmen in any proceedings and as such the notice or hearing of the Collective Bargaining Agent would amount to notice and hearing of all the workers and therefore it was not necessary to give notice to all the striking workers, which were nearly 500 and which was practically impossible as it would have taken too long time and the decision, if any arrived at by the learned Labour Court, after such prolonged proceedings would neither have been effective nor useful. He also relied upon certain case-law which I will discuss later. Mr. Mahmood Abdul Ghani also supported the view of Mr. A. Hafiz and submitted certain case-law.

11. Mr. A. Hafiz has relied upon the cases reported in PLD 1973 SC 49, 1973 PLC 376 and PLD 1981 SC

225. In the case of the State v. Ziaur Rehman and others PLD 1973 Supreme Court 49 it was held that Constitution was to be read as a whole, giving every part thereof meaning consistent with provisions of Constitution. It was further held: "It is a well-established rule of interpretation that where in a statute there are both general propositions as well as special provisions for meeting a particular situation, then it is the special provisions which must be applied to that particular case or situation instead of the general provisions." It is submitted by Mr. A. Hafiz that IRO should be read as a whole and provisions of section 22(12)(b) should also be taken into consideration while interpreting subsection (7) of section 46-A. It is further submitted that this Ordinance is `special law' the purpose of which is the regulation of relations between employer and workmen and the avoidance and settlement of any differences or disputes arising between them. He submitted, therefore, it should be interpreted liberally and the interests of both the parties, the Labour as well as the employer, should be taken into consideration while interpreting its provisions.

12. In the case of Star Textile Mills Ltd., Karachi v. Third Sindh Labour Court, Karachi 1973 PLC 376, the learned Division Bench of Karachi High Court had discussed the provision of section 46-A(2). In this case the notice was issued only to the CBA and after hearing the CBA the learned Labour Court passed the order under subsection (3) of section 46-A and also passed the order, of dismissal of workmen under section 46-A(7). Apart from the CBA there were also some other registered trade unions in the mill who were not given notice of hearing under subsection (2). The Labour Court, however, ordered reinstatement of dismissed workers on the ground, that two other registered trader unions were not heard. This order was challenged in the writ petition and the learned Division Bench of Karachi High Court repelled the contention of the, employer that only CBA was to be heard. Their Lordships were of the opinion the use of words `concerned with the dispute' used in subsection (2) would apply to both the CBA and the other registered trade unions and further held that word `or' used in subsection (2) be read as `and'. It was further observed: "A bare perusal of the above provision clearly indicates that the foundation of 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 46-A is a 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 not only in the fact that it gives effect to a basic principle of natural justice, that no order prejudicially affecting 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 possibility of a settlement, resulting in the termination of the strike or lock-out as the case may be, which is the object of the section."

13. In the case of Dawood Cotton Mills Ltd. v. Guftar Shah and others PLD 1981 Supreme Court 225 their Lordships considered the question whether second show-cause notice before dismissal of workman was necessary in accordance with the principles of natural justice. Their Lordships, however, gave the finding that second show-cause notice was not necessary as it was not requirement of rules of natural justice their Lordships observed that as rules of natural justice are not embodied rules, therefore compliance is only needed to the extent that such rules are incorporated in such statutes. Their Lordships held that under Standing Order 15(4) the workman was to be informed of the alleged misconduct and be provided with an opportunity to deny the charge and prove his innocence.

14. Mr. Mahmood Abdul Ghani relied upon the case Modern Tentage and Textile Industries Ltd. v. 'Punjab Labour Court No.1, PLD 1978 Lahore

965. In that case learned Single Judge of Lahore High Court held notice on employer and collective bargaining agent or registered trade union was mandatory under section 46-A(2) and order passed by Labour Court without serving such notice was without jurisdiction and unlawful.

15. The case of Star Mills, referred to above was also considered by learned Single Judge of High Court in the case of Indus Dying & Mfg. Co. Workers Union v. The Government of the Province of Sindh 1975 PLC

858. It was observed by learned Single Judge of Karachi High Court:- "The whole scheme of section 46-A is obviously to provide a machinery for expeditious and quick interference with strikes and lock-outs which are illegal, and under sub-clause (3) the Labour Court has to pass order within a short period of 10 days, following the day on which it receives a report. This being the whole object of this section, it appears, that the Legislature instead of burdening the Court with the function of securing the attendance of parties before commencement of the proceedings, gave power to the officer of the Labour Department as specified in subsections (9) and (10) of the section."

16. In none of the above cases the question for consideration was whether the notice to the workmen was necessary before order of dismissal was passed under section 46-A.

17. The principles of natural justice relied upon by Mr. M.L. Shahani were first enunciated in Pakistan by their Lordships of Supreme Court in the case of Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak PLD 1959 Supreme Court (Pak)

45. Their Lordships held:- "The rule of justice emodied in the maxim `audi alteram partem', "No man shall be condemned unheard" is not confined to proceedings before Courts but extends to all proceedings, by whosoever held, which may affect the person or property or other right of the parties concerned in the dispute. As a just decision in such controversies is possible only if the parties are given the opportunity of being heard, there can be as regards the right of hearing, no difference between proceedings which are strictly judicial and those which are in the nature of a judicial proceeding though administrative in form. A mere consideration of the grounds of appeal, does not constitute a hearing of appeal." The principle laid down in the above case was also reiterated in the case of the University of Dacca v. Zakir Ahmed PLD 1965 Supreme Court

90. Their Lordships further observed:- "that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting `the person or property or other right of the parties concerned'. This rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness:' Their Lordships further observed:- "What these principles of natural justice are it is not possible to lay down with any exactness, for, they have been variously defined in various cases. "The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with and so forth." Nevertheless, the general consensus of judicial opinion seems to be that, in order to ensure the "elementary and essential principles of fairness" as a matter of necessary implication, the person sought to be affected must at least be Made aware of the nature of the allegations against him, he should be given fair opportunity to make any relevant statement putting forward his own case and "to correct or controvert any relevant statement brought forward to his prejudice."

18. In the case of Pir Syed Mardan Shah and 3 others v. Chief Land Commissioner, Sindh and 2 others PLD 1974 Karachi 375, the learned Division Bench of Karachi High Court held that `it is well-settled that the principles of natural justice are to be read as a part arid parcel of every statute.

19. Even if the arguments of Mr. A. Hartz are accepted that the service of notice on CBA and other trade unions would be sufficient notice to all the workmen who are affected by the order, still in the circumstances of this case it is necessary to consider as to whether by the notice to trade unions, sufficient compliance has been made of essential principle of natural justice as laid down by Hon'ble Supreme Court. As pointed out by their Lordships in the case of University of Dacca the requirement of natural justice depends upon circumstances of each case. But at least person sought to be affected be made aware of the allegation against him and be given opportunity to put forward his own case. Therefore it is to be seen, whether by communicating the order under subsection (3) through the trade unions, the affected workmen are made aware of the said order passed by learned Labour Court on 21-11-1990.

20. The two trade unions who are respondents Nos. 2 and 3 before the Labour Court and Respondents Nos. 3_and 5 before this Tribunal have in their Written Statement before the Labour Court stated that they had practically no membership and that they were not active unions. The CBA which is the respondent No. I before the learned Labour Court and the applicant/informant in this revision application and which has right to represent all the workman is admittedly a house divided. Admittedly Mohammad Sarwar was the General Secretary of the CBA Union whose name is still registered with the Registrar of Trade Unions. It appears that one Khalid Pervez claims to have been elected as General Secretary, but change of office-bearer has not yet been accepted by the Registrar of Trade Unions. The reporting officer Muhammad Shakir Hussain had admitted in the cross examination that Khalid Pervez had been claiming to be General Secretary and that his papers had been recommended from East Division for recording him General Secretary as CBA but no decision has been taken by the Registrar of Trade Unions as yet. It was submitted that case had been filed by Muhammad Sarwar before the learned Labour Court with regard to the alleged election of Khalid Pervez but it was further admitted by the learned representatives of parties before the Tribunal that no stay order had been issued by the learned Labour Court. Therefore even the Labour Department and reporting officer were not able to decide as to who conducted the affairs of the CBA, Khalid Pervez or Muhammad Sarwar. It also appears from the record that Muhammad Sarwar had been supporting the case of the establishment before the Labour Department, Reporting Officer and even before the Labour Court whereas Khalid Pervez, who was dismissed by the employer, is said to be the person behind strike. In the circumstances it cannot be assumed that the order of the Labour Court for calling off the strike was communicated to the workers and they did not comply with the order. It appears from the impugned order or the learned Labour Court that the order of calling off the strike was also communicated to the workers through Khalid Pervez but I cannot understand under what capacity he could represent the workmen and notice to him should be considered notice to workmen. Similarly Muhammad Sarwar also does not appear to enjoy the confidence of all the workmen and possibility that he may also not have communicated the same to the workmen cannot be ruled out. During the course of arguments it was also admitted by parties that notice with regard to the order of Court was affixed by the respondent on Notice Board of factory, but some workers had torn it out. Therefore possibility that some of the workmen may not be aware of the order could not be ruled out. Report of the Reporting Officer and application of the respondent employer show that Khalid Pervez and his group prevented and forced the workmen not to resume the work.

21. The report of the Enquiry Officer in the Court dated 21-11-1990 shows that some workers were saying that they did not know what was order of the Court as they did not see Written Order. Under the circumstances of this case it cannot be held that the service of notice on such CBA or practically defunct trade unions would be considered sufficient compliance of notice under the spirit of IRO or under the principle of natural justice. The order of dismissal of workmen passed by learned Labour Court on such notice by which the order of calling strike was communicated to the workers is not sustainable therefore order of learned Labour Court dated 22-11-1990 is set aside.

22. However it was admitted by Mr. A. Hartz that 278 workers had submitted the Review Applications before the learned Labour Court whose review applications have been accepted as no objection was given by the respondent employer and have resumed work, therefore their cases need not be re-opened.

23. The case of the remaining dismissed workmen may be considered afresh by the learned Labour Court after due notice to them. If it is not possible to serve them individually the notice containing the names of such workmen may be published in two Urdu Daily Newspapers of Karachi at the cost of respondent No.6 viz. employer. The revision application stands disposed of in the above terms.

24. This order would not create any right of reinstatement in the case of three dismissed persons, including Khalid Pervez, who were dismissed by the establishment before the commencement of strike. Their case would be considered on their own merits as and when they move the Labour Court under section 25-A of IRO, 1969. M.Y.H./1809/Lb.S Order accordingly.