1970 PLP 286 (PLC)

Date of hearing: 2nd January 1970. This is an appeal against an award of the learned Chairman of the West Pakistan Industrial Court (Northern Zone), Lahore, dated 26th September 1969. The learned Chairman dismissed the application under section 6(8), of the West Pakistan Industrial Disputes Ordinance, 1968 (herein after called the repealed Ordinance), on the ground that the strike notice had become invalid during the course ‑ of con ciliation proceedings and, therefore, the Conciliation Officer could not precede with the conciliation proceedings and issue a Failure Certificate.

2. Mr. Nazir Ahmad Naz, the learned Representative for the appellant‑Union, contended, fn the first place, that the learned Chairman could not go into the question of the validity of the strike notice in view of the provision of section 6(4) of the repealed Ordinance. In order to appreciate the contention of the learned Representative for the appellant, it would be useful to reproduce subsections (1), (2), (3) and (4) of section 6 of the repealed Ordinance. It is as under :‑ "(1) Where any industrial dispute exists or is apprehended in a public utility service, the Conciliation Officer shall ho]d conciliation proceedings in the prescribed manner. (2) Where any industrial dispute not falling in sub section (1) exists or is apprehended, the Conciliation Officer may, and shall, where a notice of strike has been received, subject to the provisions of subsection (3), hold conciliation proceedings in the prescribed manner. (3) Where a notice of strike, whether in a public utility service or in any other industry, has been received, by the Conciliation Officer he shall satisfy himself as to its validity, and if the notice of strike does not conform to the pro visions of this Ordinance and the rules framed thereunder, the said notice of strike shall not be deemed to have been given under the provisions of this Ordinance and the Con ciliation Officer may, in his discretion, decide not to hold conciliation proceedings. (4) Notwithstanding anything contained in subsection (3), the validity of any conciliation proceedings shall not be called in question on the ground that the notice of strike on receipt of which the proceedings were initiated, did not conform to the provisions of this Ordinance or the rules framed thereunder, or was otherwise invalid.

3. In support of his contention, the learned Representative for the appellant, relied 'Oft' the 'case ' of the' Five Representa tives of the Workers of BECO' v. 'Batala Engineering Company (Pakistan) Limited, Lahore (1969 P L C 563). It was held in that cede that it was the absolute p6wer of the Conciliation Officer to determine the validity of the strike notice and that the Industrial Court had no jurisdiction to o into the question of the validity of strike notice. ' What 'is beyond the competence of the' Industrial Court is to the question that the strike notice does not conform to the pro visions of the repealed Ordinance or the rules framed thereunder. In the present case, the learned Industrial Court has not gone into the question that the strike notice did riot conform to the provisions of the repealed Ordinance or the rules framed thereunder. What it has held is that under Martial Law Regulation No. 18, strikes in industrial concerns are prohibited and anybody who goes or helps to bring about strike or propagates a strike shall be punished up to 14 years' rigorous imprisonment. M. L. R. 18 was ‑ promulgated on 26th March 1969. The strike notice was given some time earlier than 26th March 1969, i.e. on 17th March 1969 and the Failure Certificate was issued on 3rd May 1969. It can not be said that the learned Chairman of the Industrial Court, while holding that the strike notice was invalid, was considering the provisions of the repealed Ordinance. He was bound to give effect to M. 1... R. 18, which modified subsection (4) of section 6 of the respected Ordinance to the extent that the strike notice was forbidden. "Or was otherwise invalid", occurring in subsection (4) of section 6 of the repealed A Ordinance is to mean something analogous to what has preceded it. It cannot mean that the jurisdiction of the Industrial Court is barred so as to take into consideration M. L. R. 18.

4. It was in the next place contended that M. L. R. 18, cannot be given retrospective effect so as to affect the rights of the parties, which had already come into existence. There is no force in this contention. 1n this connection, it would be necessary to reproduce M. L. R. 18, which is as under "Strikes, lock‑out and agitations in educational institutions, public utility work and installations, services and industrial concerns are prohibited. Any one who strikes or helps to bring about a strike or propagates a strike shall be punishable. Maximum punishment 14 years' R. L"

5. It would appear from a perusal of M. L. R. 18, that the offence is a continuing one. The right of the appel lants to go on strike was effected by M. L. R. 18. they could not go on strike after the promulgation of M. L. R. 18.

6. In the third place, Mr. Haz relied on pare.. 5(d) of the Proclamation of Martial Law in support of his contention that the officer: already appointed were to continue to perform all functions, which they had exercised and performed before the Constitution was abrogated. In other words, his sub mission was that the Conciliation Officer could issue a Failure Certificate. There is no force in this contention. I have already held that M. L. R. 18, makes strikes a continuing offence and, therefore, the Industrial Court was bound to take notice of the said Regulation.

7. Lastly, it was submitted that there is no provision under the Martial Law Regulation to affect the pending matters. The question in the present case is not the inter pretation of Martial Law Proclamation, but that of M. L. R. 18. 1 may again repeat that M. L. R. 18, renders all strikes illegal and punishable up to 14 years' R.

1. It is a continuing C offence and the Industrial Court could not permit anyone to go on strike. I would, for the reasons given above, maintain the order of the learned Chairman of the Industrial Court and dismiss the appeal.