1992 PLP 246 (PLC)

2. I have heard Mr. Muhammad Humayoon, learned Advocate for the applicants and Mr. A. Majeed, learned Representative for the respondents and have also gone through the relevant papers filed alongwith the application.

3. Admittedly, the applicants/employers had entered into settlement with the respondents union on 12-7-1990 with regard to certain demands of the union. This agreement was effective from 1-1-1990 to 31-12-1991. Under one of the terms of this settlement, which is specified under Heading `General' Clause (b), it is provided that-- "That in consideration of the benefits allowed by the company under this settlement, the Union hereby agrees and undertakes not to raise during the operative period of this settlement any demands or disputes involving financial implications upon the company." However, on 14-3-1991, the respondents union gave notice under section 26(1) of the Industrial Relations Ordinance, 1969, which is Annexure `B' raising demands that all the workmen employed by the Contractor be employed by the applicants and that the workmen having been kept as temporary for the last several years may be made permanent and they be given Special Allowance of Rs.200 as ordered by the Government with effect from 1-12-1990. The applicants filed an application under section 34 of the Industrial Relations Ordinance, 1969, being application No. 3/1991 before the learned Labour Court praying for an order, that the notice under section 26(1) of I.R.O., 1969, dated 14-3-1991 was illegal and the respondents union be directed not to raise any demand during the operation of the settlement, dated 12-7-1990. The applicants also moved an application for Interim Injunction praying that the respondents be restrained from giving effect to the notice, dated 14-3-1991 till the disposal of the application under section 34, I.R.O., 1969. This application was rejected by the learned Labour Court vide impugned order.

4. The main contention of Mr. Muhammad Humayoon, the learned Advocate for the applicants is that the settlement arrived at between the parties was binding upon all the parties and under the terms of that settlement as reproduced above, the respondents could not raise any demand. Secondly, it was contended that this notice under section 26(1) of the I.R.O., 1969, was mala fide in order to protect one of the workmen, namely, Mr. Zakir Baig who is Joint Secretary of the respondents union from being proceeded against for misconduct. During the course of the arguments, it was admitted by Mr. Muhammad Hamayoon, that Mr. Zakir Ali Baig has already been dismissed from service, therefore, this ground would no more be a valid ground for holding the notice to be mala fide. Mr. Zakir Ali Baig has got a right under the law to seek relief if he is aggrieved. 1, therefore, need not touch this ground.

5. With regard to main objection of Mr. Muhammad Humayoon, the learned Counsel for the applicants it has to be seen whether the demands raised by the Union and the Notice, Annexure `D' involved financial implications upon the company; and secondly, whether the Union could agree to such omnibus clause in such settlement where the right of workers to raise demands through the C.BA. is given up or waived. Mr. Muhammad Humayoon has relied upon 1968 PLC 393 in the case of Five Elected Representatives of Workers of Fish Industries Ltd. v. Messrs Karachi Fish Industries Ltd., Karachi; where Industrial Court of West Pakistan at Karachi had held that "clause imposing restriction to raise fresh demand, financial or otherwise during operation of settlement was binding and not invalid". In the case of Abdul Sattar v. Pakistan Oxygen Ltd. reported in 1973 PLC at page 125, this Tribunal had held that the workmen couldn?t be allowed to contend that the settlement was invalid on some legal grounds, when the parties and advantage taken by the workmen had acted it upon. In the case of Johnson and Johnson Employees Union v. Johnson and Johnson (Pakistan) Limited, reported in 1975 PLC 153, this Tribunal had held that "a settlement arrived at between the parties must be given due weight, so as to maintain industrial peace. Even the Ordinance has fixed a period of operation of a settlement for two years. The intention of the Legislature appears to be that when a settlement had been arrived at between the parties, the terms of the settlement must remain binding on the parties for sufficiently long period, so that the management and the workers are able to work in amity and peace. I would hold that the Union could not raise a demand in respect of any matter involving financial implications during the pendency of the settlement dated 16th February, 1972." In the case of M.M. Ispahani Ltd. v. Ispahani Company Office Employees' Association and others, reported in 1960 PLC 35; their Lordships of the Supreme Court had observed that "agreements entered into under settlement were binding on employers and employees". It was further observed that the strike called on ground of grievance already settled was illegal and addition of false pretexts does not affect illegality and that the award of the Tribunal reinstating employees, in case of illegal strike; was set aside."

6. Mr. Abdul Majeed, the learned representative for the respondents union has contended that demands now raised by the respondents were not raised or settled under the settlement, dated 12-7-1990. The demand with regard to pay of Rs.200 allowed by the Government to the workmen is a right of the workman guaranteed under the law and, therefore, no industrial dispute with regard to such rights can be raised by the Union. The workman, if aggrieved, can seek remedy either under section 25-A of the Industrial Relations Ordinance, 1969, or under the Payment of Wages Act, 1936. However, with regard to other two demands viz. employment by the applicants of all the workmen employed by the contractor and the conferment of the status of permanent workmen upon the temporary workmen, the same were available to the Union when they raised the demands and reached the settlement, dated 12-7-1990.

7. The question that requires consideration is where the Union intentionally or inadvertently did not raise the demands, could the Union be allowed to raise the demands during the subsistence of the settlement. In this context, it may be relevant to refer to clause (a) under item `General' of the settlement which reads, as under:-- "(a) It is hereby agreed by the Union that in consideration of the benefits awarded by the company under this Settlement, all the demands covered by the strike notice, dated 14-1-1990 and/or any other demands not specifically mentioned in the body of settlement which were existing on 1-1-1990 shall be deemed to have been settled." It will be seen that the Union had agreed that even those demands which were I existing on 1-1-1990 and which had not been specifically mentioned in the body of the settlement would be deemed to have been settled. The consensus of the judicial opinion as reproduced above appears to be that the settlement should be given due sanctity and is binding upon the parties and further that the Union cannot raise any fresh demands involving financial implications during the subsistence of the settlement.

8. The question as to whether the demands raised by the respondents involved any financial implication is mostly a question of fact which can be finally decided by the learned Labour Court only after the evidence is recorded. Prima facie it cannot be said that the demand to regularise all the temporary workmen or the demand to employ all the workmen employed by the contractor would not involve financial implication.

9. In view of the above discussions, the applicants appear to have a prima facie case for the issuance of interim injunction as prayed by them.

10. The next question that requires consideration is as to in favour of which party the balance of convenience or inconvenience lies. The respondents have given a notice under section 26(1) of I.R.O., 1969 after which if the dispute is not settled by the Works Council within 10 days under subsection (2), the respondents have right to give notice of strike under section 26(3). After the strike notice, the matter has to be referred to the Conciliator. If no settlement is arrived at during the conciliation proceedings and the parties to the dispute do not agree to refer it to an arbitrator, then, the respondents could give a call for strike under section 32, after the expiry of period of notice under section 28 which is 14 days. Thus, after the notice under section 26(1), nothing prevents the respondents Union from going on strike except a few formalities, unless the applicants agree to all the demands.

11. The right to call a strike as observed by their Lordships of the Supreme Court in the aforementioned case of M.M. Ispahani "is a highly responsible act, carrying legal sanctions and obligations imposed by the law which grants the right to strike as an instrumentality for the resolution of disputes between organised labour and the employers. It is eminently reasonable to require that the calling of a strike, upto the point of commencement of the strike, should be accompanied by the most careful enquiry and satisfaction that a bona fide cause of dispute actually exists."

12. It is argued by Mr. Humayoon that in the instant case, the respondent Union did not try to settle the dispute with regard to the present demands by negotiations in the settlement arrived at on 12-7-1990 and if they are allowed to proceed further and the strike is called, it cannot be disputed that the applicants are liable to suffer irreparable loss. He further contended that if the respondents are restrained from proceeding further with the notice under section 26(1), they will not suffer much inconvenience or irreparable loss as after 6 months, the present settlement is to expire on 31-12-1991, when the union would have a right to raise fresh demands including the demands which they have raised now and may even demanded the grant of the rights retrospectively. Thus, even the balance: of inconvenience appears to be in favour of the applicants.

13. In view of the above discussion, I revise the impugned order of the learned Labour Court and order the issuance of interim injunction as prayed for by the applicants.

14. The observations made above are of tentative nature and would not affect the merits and the final decision of the case by the learned Labour Court. The learned Labour Court is further directed to dispose of the matter as early as possible. H.B.T./1948/Lb.S ?????????????????????????????????????????????????????????????????????????????? Order accordingly.