P L D 1968 Lahore 1012 (PLP)

SARDAR MUHAMMAD IQBAL, J

The petitioner‑company is admittedly a public utility service. A notice of strike was given by five representatives of the workmen containing certain demands. The Conciliation Officer held that the notice was invalid. Consequently, he did not initiate the conciliation proceedings in pursuance of the said notice in respect of the disputes which were raised in the notice. It was subsequently brought to the notice of the Conciliation Officer that the petitioner had dis charged nine of its workmen. The Conciliation officer by his order dated the 19th of June 1967 held that due to the termina tion of the services of nine workmen, an industrial dispute existed and he called upon the parties to appear before him on the 22nd of June 1967 The petition company did not participate by making an objection in writing before him that in the absence of a strike notice he had no jurisdiction to initiate the conciliation proceedings, The objection was overruled and he issued a Failure Certificate under subsection (4) of section 5 of the Industrial Dis putes Ordinance (LVI of 1959). On the basis of the said certificate an application was made to the Industrial Court. The workmen also moved an application to it under section 20 of the Ordinance alleging that the Management had locked out sixty‑nine of its workmen after the commencement of the conciliation proceedings. The petitioner again took exception to the assumption of the jurisdiction and further alleged that the said sixty‑nine workmen had not been locked out, but were, in fact, discharged in accord ance with Standing Order No. 12 of the Industrial and Commer cial Employment (Standing Orders) Ordinance, 1960. The objection was overruled and the Industrial Court by its order dated the 29th of June 1967, directed the petitioner to stop the lock‑out and readmit these workmen. The petitioner has challenged this order through this petition under Article 98 of the Constitution of the Islamic Republic of Pakistan, 1962.

2. It was contended by the learned counsel for the petitioner that in the case of a public utility service the conciliation pro ceedings cannot commence unless a notice of strike is given. In order to deal with this question, it is necessary to refer to some of the relevant provisions of the Ordinance. Subsection (1) of section 5 reads:--"Where any Industrial dispute is apprehended or exists in a public utility service, the Conciliation Officer shall hold conciliation proceedings in the prescribed manner." Under this subsection if an Industrial dispute exists or is appre hended in a public utility service, the Conciliation Officer is bound to hold the conciliation proceedings. Subsection (1) of section 5 does not make any reference to a notice of strike and that being so even if there is no notice of strike in a public utility service, but the industrial dispute exists or is apprehended, the Conciliation Officer is under a statutory obligation to initiate the conciliation proceedings.

3. The position becomes further crystalised by sub section (1‑A) of section 5 which is reproduced for convenience of reference: "Where any industrial dispute not falling in subsection (1) exists or is apprehended, the Conciliation Officer may, and shall where a notice of strike has been received, hold conciliation proceedings in the prescribed manner." This provision, doubtless, applies to all cases relating to industry other than a public utility service. The words "the Conciliation Officer . . . . shall where a notice of strike has been received, hold conciliation proceedings in the prescribed manner", however, are applicable to every case, both to a public utility service and an industry other than that. Therefore, even in the case of an industry other than the public utility service if a Conciliation Officer receives a notice he is under an obligation to hold the conciliation proceedings. The position, therefore, which emerges is that in all cases of Industrial disputes whether they relate to a public utility service or an industry other than the public utility service, if a notice of strike is received by the Conciliation Officer, he is under an obligation to hold the' conciliation proceedings. He is not in such a case to go into the question whether or not the industrial dispute is apprehended or exists. In a case where no notice is received by him, but he apprehends an industrial dispute or finds that it exists, then his course of action will depend on the question whether the industry is a public utility service or an industry other than e that. In the case of a public utility service, he shall have to hold the conciliation proceedings and in the case of an industry other than a public utility service it will be entirely within his discretion to hold the proceedings or to refuse to do so. It is in this context that subsection (I‑B) of section 5 of the Ordinance is relevant, which provides: "Where a notice of strike, whether in a public utility service or in any other industry, has been received by the Conciliation Officer, the Conciliation Officer shall satisfy himself as to its validity before conducting the conciliation proceedings". Since the Conciliation Officer is under an obligation, imposed upon him by the Statute under subsection (1‑A), to hold the proceedings in all cases where a notice of strike is received, the Legislature has, by way of abundant caution, provided that by notice under sub‑B section (1‑A) it meant a valid notice and that the Conciliation Officer before holding such proceedings must satisfy himself that the notice is a valid one. If the notice is not valid, it is no notice in the eye of law and the Conciliation Officer can ignore it.

4. The learned counsel for the petitioner relied on rule 3 of the West Pakistan Industrial Disputes Rules, 1960, to contend that in a public utility service there can be no conciliation proceedings unless a notice of strike is given. The provisions of subsection (1) of section 5 are quite clear and unambiguous, and provide for holding the conciliation proceedings even if there is no notice of strike in a public utility service. Rule 3 was framed to carry into effect the provisions of section

5. It is a cardinal principle of interpretation of statutes that the rules are subordinate to the section under which they are made. If reconciliation between the section and the rules is not possible, the rules must give way. And if they have meaning and effect which is not consistent with the Act under which they are made, they are ultra vires. In Ex. P. Davis ((1872) L R 7 Ch. App. 526 at page 529), it was held by James L. J: "The Act of Parliament is plain, the rule must be interpreted so as to be reconciled with it, or, if it cannot be reconciled, the rule must give way to the plain terms of the Act." In Richards v. Att.‑Gen. of Jamaica ((1848) 6 Moore P C 381 at page 398), it was observed by the Privy Council: "It has been argued that these rules having been approved by the King in Council, have under the provisions of this statute the force of an Act of Parliament . . The words of these rules are no doubt very large, but, as they are made under the power of the Act and to provide for cases mentioned in the Act, we must look to the Act itself in order to construe them." Thus, even if it had been provided in the rule that the conciliation proceedings in a public utility service are dependent on the notice of strike, the rule would have been ultra vines the provisions of subsection (1) of section

5. The contention of the learned counsel is, however, not warranted by the provisions of rule 3, which reads: "On receipt of information about an existing or apprehended industrial dispute, or where the dispute relates to a public utility service, on receipt of a notice of strike or lock‑out given under rule 57(1) or 58(1), the Conciliation Officer shall forthwith arrange to interview both the employer and the workmen concerned with the dispute at such time as he may deem fit and shall endenvour to bring about a settlement of the dispute in question." The word "or" in the purview of rule 3 is placed between two commas and, therefore, the words "Conciliation Officer shall forthwith arrange to interview both the employer and the workmen concerned with the dispute . . . . ." shall apply to both cases where the Conciliation Officer receives an information D "about an existing or apprehended industrial dispute" and also "where the dispute relates to a public utility service, on receipt of a notice of strike or lock‑out." When paraphrased, this rule means as:-- (a) On receipt of information about an existing or apprehended industrial dispute, the Conciliation Officer shall forthwith arrange to interview both the employer and the workmen concerned with the dispute, etc. (b) Where the dispute relates to a public utility service, on receipt of a notice of strike or lock‑out given under rule 57(1) or 58(1), the Conciliation Officer shall forthwith arrange to interview both the employer and the workmen concerned with the dispute, etc. The (a) above applied both to a public utility service and an industry other than that. The Conciliation Officer in both the cases, if he received an information about an existing or apprehended industrial dispute, is required to initiate conciliation proceedings forthwith. The rule does not contemplate that without a notice of strike the conciliation proceedings cannot be held in a public utility service. On the contrary, it contemplates two situations, one‑where the dispute exists or is apprehended, and the other‑where a notice is given in a public utility service. In either of the cases, the Conciliation Officer is placed under an obligation to hold the conciliation proceedings. The case of the petitioner is not advanced by rule 3 as it exists.

5. In support of his contention that a notice of strike was essential for holding conciliation proceedings in a public utility service, learned counsel for the petitioner next relied on Natural Gas Fertilizer Factory v. Labour Union (1966 P L C 268). The precise question did not arise in that case. The facts of that case were that the industrial Court was seized of certain disputes when another Trade Union gave a strike notice raising a number of demands and some of them were the same as were pending adjudication before the Industrial Court. The Conciliation Officer started conciliation proceedings and a Settlement was arrived at between the Management and the second Union before him. The Manage ment, after the settlement, raised a preliminary objection before the industrial Court that the settlement was binding on the workmen under subsection (2) of section 13 of the Ordinance, and that it was no longer necessary for the Industrial Court to adjudicate on that dispute. The Industrial Court overruled the objection and against its decision an appeal was filed in the High Court. The precise question which arose in that case was whether a valid notice of strike could be given when already a dispute was pending adjudication before the Industrial Court. In dealing with the question, it was observed: "The question to be examined, therefore, is whether in this case the Employees' Union gave a valid notice of strike under section

18. Under section 18 (1) (d) of the Ordinance, no parson employed in a public utility service can go on strike in breach of contract during the pendency of any conciliation proceedings and, if no settlement is arrived at in the course of such proceedings, before an application for adjudication of the dispute has been made to the Court under subsection (5) of section

5. Again, under section 19(b), no workman employed in any industrial establishment can go on strike during the pendency of proceedings before a Court. If a strike is commenced or declared in contravention of section 18 or section 19, it is illegal under section 21, and any workman who commences, continues or otherwise acts in furtherance of a strike which is illegal under the Ordinance is punishable under section 23 with imprisonment for a term which may extend to six months or with a fine of one hundred rupees or with both. It is thus clear that the Employees' Union could not go on strike during the pendency of the dispute in respect of Demands Nos. 2 (a) (b), 5, 6 and 8 before the Industrial Court, and such a strike, if it had been commenced or declared, would have been illegal and every workman participating in it would have been guilty under section 23 of the Ordinance. Section 18 only provides that a person employed in a public utility service cannot go on strike without giving the requisite notice. The notice is, therefore, for the purpose of enabling such workmen to go on strike. In the instant case, since it was not legally possible for the workmen to go on strike, the notice given for the purpose had no end to achieve as being only a fake one, had no legal effect." Thus the only question which was relevant for the decision of that case was as to the validity or otherwise of the second notice. The observations in that judgment, viz. "a conciliation proceeding cannot commence in respect of a public utility service unless a notice of strike . . . . is received by the Conciliation Officer" were only an obiter dictum. In Flowor v. Ebbs Vale Steel, Iron & Coal Co. ((1934) 2 K B 132), Mr. Justice Talbot says: " . . . . . It is of course perfectly familiar doctrine that obiter dicta, though they may have great weight as such, are not conclusive authority. Obiter dicta in this context means what the words literally signify‑namely, statements by the way. If a Judge thinks it desirable to give his opinion on some point which is not necessary for the decision of the case, that of course, has not the binding weight of the decision of the case and the reason for the decision." To the same effect is the statement of the law in Haisbury, Volume XIX, pave 251: "It may be laid down as a general rule that that part alone of a decision of a Court of law is binding upon Courts of co‑ordinate jurisdiction and inferior Courts which consists of the enunciation of the reason or principle upon which the question before the Court has really been determined. This underlying principle which forms the only authoritative element of a precedent is often termed the ratio decidendi'. Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that is unnecessary for the purpose in hand (usually termed dicta) have no binding authority on another Court, though they may have some merely persuasive efficacy." If, therefore, an opinion is given on some point which was not necessary for E the decision of the case, it did not lay down a law to be followed.) In Re : Wright ((8183) 23 Ch. B. 118), Jesse), M. R., observed: "I never allow any construction of a plain enactment to be biased in the slightest degree by any number of judicial decisions or dicta as to its meaning, when those decisions or dicta are not actually binding upon me. I read the Act for myself. If I think it clear I express my opinion about its meaning as I consider I am bound to do. Of course, if other Judges have expressed different views as to the construction, and their decisions are binding on this Court, this Court has simply to bow and submit, whatever its own opinion may be. But when there is no such binding decision, in my view a Judge ought not to allow himself to be biased in the construction of a plain Act of Parliament (for it appears to me to be plain) by any number of dicta or decisions which are not binding on him. The Judge ought, with all due respect, to examine into them, but he must not allow any number of dicta or even decision which are not binding on him, to affect his judgment except in one peculiar case. That case is peculiar, and, therefore, I will mention it. Where a series of decisions of inferior Courts have put a construction, on an Act of Parliament, and have thus made a law which men follow in their daily dealings, it has been held, even by the House of Lords, that it is better to adhere to the course of decisions than to reverse them, because of the mis chiefs which would result from such a proceeding. Of course that requires two things, antiquity of decision and the practice of mankind in conducting their affairs".

6. The learned counsel for the petitioner next relied on section 16 of the Ordinance to contend that subsection (1) of section 16 applies to a public utility service whereas subsection (2) applies to other services and that being so the proceedings in the case of public utility service do not commence unless a notice of strike is received. In support of his contention he relied on the observations of the Chairman of the Industrial Court in Employees' Association v. Lever Brothers (Pak.) Ltd. (1962 P L C 724), where it was said: "The Ordinance, therefore, visualises a strike by a body of persons and not by a single individual. Under the Ordinance thus the position is that the Conciliation Officer gets jurisdiction to enter into the conciliation proceedings immediately after he is informed that an industrial dispute exists or is apprehended. The effect of section 16 of the Ordinance is that in the case of industrial dispute relating to public utility service a conciliation proceeding shall not be deemed to have commenced unless a notice of strike under section 18 is given. An industrial dispute relating to other services it shall be deemed to have commenced on the date on which the Conciliation Officer starts investigation. It, therefore, follows that the Ordinance does not authorise the Conciliation Officer to start conciliation proceedings in the case of a public utility service unless he is notified by a notice of strike given by a body of persons employed in such industry." This decision was given before subsection (1) of section 5 was substituted by subsections (1), (1‑A) and (1‑B) by Ordinance XV of 1965. Under the substituted provisions this view is not legally warranted. We are also unable to agree to the interpretation which has been placed on section

16. Subsection (1) of section 16 roads: "A conciliation proceeding shall be deemed to have commenced‑(a) in the case of an industrial dispute relating to a public utility service, where a notice of strike or lock‑out under section 18 is given, on the date on which such notice is received by the Conciliation Officer; and (b) in other cases on the date on which the Conciliation Officer starts investigation under subsection (2) of section 5." Clause (a) of subsection (1) applies in those cases where a notice of strike is given under section 18 of the Ordinance. In that case the conciliation proceedings commence on the date on which the notice is received by the Conciliation Officer. Clause (b) of subsection (1) applied to other cases. In a case where the notice is not given and the industrial dispute exists or is apprehended, the conciliation proceedings commence on the date on which the Conciliation Officer starts investigation under subsection (2) of section

5. The view taken in this judgment that section 16(1)(b) of the Ordinance applies to services other than the public utility service is, therefore, untenable. It applies to public utility service as well as to other services.

7. The Conciliation Officer clearly held that an industrial dispute existed and on that basis he held the conciliation proceedings. His action is unexceptionable and he was competent to issue a Failure Certificate under subsection (4) of section 5 of the Ordinance. The Industrial Court was, therefore, justified under subsection (5) of section 5 to take cognizance of the matter on the basis of the said certificate.

8. Learned counsel for the petitioner‑company next contended that the Industrial Court did not apply its mind while passing the impugned order under section 20 of the Ordinance. It was alleged that it was necessary for the Court to have given a definite finding whether on the allegations made by the respondents the action of the petitioner was a lock‑out within the meaning of clause (i) of section 2 and that an order under section 20 could be passed only if the Industrial Court had further come to the conclusion that the petitioner had ordered the lock‑out and it had commenced in pursuance of an industrial dispute. The Industrial Court in passing the order observed: "It is further pointed out that since the services of the workmen have been terminated, therefore, it cannot be declared as a case of lock‑out but our attention has not been drawn to any material in pursuance of which we may hold prima facie that the services of the 69 workmen have been terminated according to law so that we may come to a conclusion that it is not, a case of lock‑out and is a case of termination of services." The finding of the Industrial Court that the petitioner had ordered the lock‑out is based on the solitary ground that the petitioner had not placed any material before it that the company terminated the services of the workmen in accordance with law. Thus, in the view of the Industrial Court, if the services of some workmen are not terminated in accordance with law, it amounts to a lock‑out and an order under section 20 of the Ordinance neces sarily follows. We are unable to subscribe to this view.

9. Before an action is taken under section 20 of the Ordinance, it is necessary for the Industrial Court to hold that there is a lock‑out within the meaning of clause (i) of section 2 and that the lock‑out is in pursuance of an industrial dispute. Lock‑out is defined in clause (i) of section 2 to mean "the closing of a place of employment or part of such place, or the suspension, wholly or partly, of work by an employer, or refusal, absolute or conditional by an employer to continue to employ any member of persons employed by him, where such closing, suspension or refusal occurs in connection with an industrial dispute or is intended for the purpose of compiling persons employed to accept certain terms or conditions of, or affecting, employment." According to the respondents, the petitioner by terminating the services of these workmen refused to continue to employ these persons. This fact itself is not sufficient to hold that there was a lock‑out. Beside this fact, it has also to be proved that the c refusal occurred in connection with an industrial dispute, or "is intended for the purpose of compelling persons employed to accept certain terms or conditions of, or affecting, employment." Nothing was brought on the record of the Industrial Court nor has the Industrial Court referred to any material to show that the refusal occurred in connection with any industrial dispute or that it was intended for the purpose of compelling those workmen to accept certain terms and conditions Learned counsel for the respondents argued that this was in connection with the industrial dispute in respect of which the conciliation proceedings had commenced on the 19th of June 1967. The Conciliation Officer held the proceedings on the 19th of June 1967 in respect of an industrial dispute which pertained to the discharge or termination of the services of nine persons. It was for the respondents to have established the connection between the termination of services of these persons and the discharge of the nine persons to whom the industrial dispute pertained before the Industrial Court. They have not done so and the Industrial Court also has given no finding as to that. Learned counsel for the respondents, however, stated that this consideration is implied in the order of the Industrial Court. We see no such implication in the impugned order. The learned counsel also asked us to give a finding on this question. We are not sitting in appeal and in the exercise of our jurisdiction under Article 98 of the Constitution we are only to examine the order of the Industrial Court to see if the same is in accordance with law. Moreover, an order under section 20 could be passed only if a "lock‑out in pursuance of an industrial dispute" had already commenced. The industrial dispute, according to the admission of the respondents, was only about the termination of services of nine persons. A similar action was taken in respect of the sixty‑one persons. The Industrial Court in its order has not given any reasons to show that the lock‑out was "in pursuance of an industrial dispute". It was, therefore, for the respondents to have established before the Industrial Court that the action of the petitioner was in pursuance of the industrial dispute. The Industrial Court could not make an order under section 20 unless it had given a clear finding on the question. If the petitioner could not justify in law the termination of services of these sixty‑nine persons, this by itself could not tantamount to saying that its' action was in connection with any industrial dispute to make out a lock‑out within the meaning of clause (i) of section 2 and that the lock‑out was in pursuance of an industrial dispute. The Court should have asked the parties to lead evidence on this question or at least should have placed sufficient material to justify this inference. It was not done. The petitioner in fact has made a grievance in the writ petition in paragraph 9 that the petition under section 20 was fixed for hearing on the very next day of its filing and the petitioner requested to the Court that the notice was served on him the last evening and that the case be adjourned to some other date but the Court declined to adjourn, and gave only an hour to put in his reply otherwise the Court will pass the necessary orders. In the circumstances the petitioner put in his written objections which is Annexure 'F'. The said Court without taking any evidence and without considering that the list included even workers who had finally settled their accounts or were still working with the petitioner‑company ordered vide Annexure `A' the re‑instatement of the workers mentioned in the list. Some of these workers were not the employees of the petitioner‑company and are working in a sister concern." This is supported by a similar averment in the affidavit. A joint written statement was filed on behalf of the Conciliation Officer and the Industrial Court and they did not deny this allegation. The workmen have also submitted a written statement and did not at all deny it. 1n these circumstances, we have no hesitation in accepting the statement made by the petitioner that he was not given any opportunity to lead evidence. The conduct of the proceedings also lends support to the allegation of the petitioner. The application under section 20 was moved on the 27th of June 1967. It was fixed for hearing on the 28th of June 1967 and the petitioner‑company was asked to put in the reply on that day, and the order was passed on the day following. The Court by all means could pass the order but only if there was sufficient material on the record to satisfy the requirements of the law under which the order was being passed. The Court has passed the order without giving any opportunity to the H parties to substantiate their pleas. The order, since it does not conform to the provisions of section 20 read with section 2(f) is declared to be without lawful authority, and respondent No. 2 is directed to deal with this application in accordance with law, after giving the parties an opportunity to lead evidence. The Industrial Court by passing the impugned order in hurry without applying its mind to the relevant provisions of law has led the parties into this litigation. The Industrial Court shall pay the costs of the petitioner as well as of respondents. S. A. H. Order set aside. Case remanded.