1981 PLP 609 (PLC)

MAHMOOD AKHTAR (MEMBER).‑The Acts leading to this appeal are that the Gammon Pakistan Limited Employees' Union (hereinafter called the "Union" concluded a settlement with the Gammon Pakistan Limited, Rawalpindi (hereinafter called "the Management") in March, 1979. This settlement was to remain in operation till the 31st of March, 1980. Sub sequently, the parties signed another settlement on 14th February, 1980 which ensures substantial increases in salaries and allowances. The Management has alleged that Mr. Noman Salam Nayar, General Secretary of the Union thereafter created an atmosphere of hatred and indiscipline and wrote a libellous letter to the Management on 25th June, 1980. He was served with a charge‑sheet on 1st July 1980. Two days later he served a charter of demands on the Management. The Management asserts that it was done to create an industrial dispute and thus to avail the benefit of section 47 of the Industrial Relations Ordinance, 1969. A notice of strike was subsequently served by the Union on 14th. July 1980. The Management prayed for the declaration of the notice of demands dated 3rd July, 1980 and the notice of strike dated 14th July, 1980 as void, illegal and mala fide, for the reasons that it was a right guaranteed to the Management not to enter into collective bargaining or, to negotiate with the Union on the two notices and to have them declared a nullity in the eye of law as the notices were, (a) served mala fide to defeat the 'process of law and ,disciplinary procedure in respect of the General Secretary of the Union ; (b) in contravention of the constitution of the Union ; (c) served in contravention of Martial Law Regulation No. 23 dated 9th September, 1977 which placed a ban on strikes ; (d) incompetent and in contravention of the settlement 'executed in March, 1979 whereby the Union could not raise any industrial dispute at least till the 31st of March, 1981 ; (e) in violation of clause (d) of subsection (1) of section 46 of Industrial Relations Ordinance, 1969 ; (f) incompetent as the conditions had not changed so as, to warrant raising of afresh industrial dispute.

2. The learned counsel for the respondents denied that the General Secretary of the Union had committed any "misconduct" or that the notice of demand and the notice of strike were given in order to create an industrial dispute to take undue advantage of section 47 of the Industrial Relations Ordinance, 1969. He said that the Management got an inkling of the notice of demand and served the charge‑sheet on the General Secretary to thwart the Union"s efforts to raise an industrial dispute. The Union had no intention to actually conduct strike and actually had not conducted strike. Since actual strike was not conducted there was no question of contravention of Martial Law Regulation No. 23 even otherwise M. L. R. 23 was not being enforced by the National Industrial Relations Commission. The notices were bona fide and extended in scope beyond the person of the General Secretary. In any case the Union had served the notices of demand and strike under section 26 of the Industrial Relations Ordinance, 1969 to bring the dispute before the Commission. There could as such be no question of malice or mina fide. As for the existence of a valid settlement, he said that there could be no estoppel against the law and the demands could always be raised during the currency of a settlement. He said that this objection could only have been raised by the petitioner when eventually the industrial dispute would have come before the Conciliator or the Commission. He further said that even injunctions could not be issued to restrain the jurisdiction of a public functionary (except in case of a breach of trust). In the instant case the Union had served notices of demand and strike in accordance with law and it was now the duty of the Conciliator to deal with the case. No interim stay could be granted under section

34. The learned Member held that the argument was not tenable and that by serving the notice of strike the respondent had tried to abuse the process of law for which the Commission could give relief to the petitioner under section 34 of the Industrial Relations Ordinance, 1969. He consequently held both the notices to be illegal, hence this appeal.

3. The learned counsel for the appellant has argued before us that malice had been imputed to the service of the notices of demand and strike without justification. He said that the order of the learned Member, N.I.R.C. amounts to stopping a public functionary from performing his functions. He reiterated that even an injunction to restrain jurisdiction of a public functionary cannot be issued. The law provides for the procedure for service of strike notice and for raising industrial disputes under section 26 of the Industrial Relations Ordinance, 1969 and that it could not be taken away even by the consent of the parties. He cited reported cases P L D 1964 S C 633 and P L D 1967 Kar. 547, in his support he further said that the term of the settlement of 1979 stating that parties would not raise any industrial dispute during the currency of that settlement had itself been given up by the Manage ment through its conduct in subsequently negotiating and arriving at a settlement. That term of the settlement of 1979 could not now be brought up again. He cited P L J 1977 Tr. C. (Lab.) 303 to state that demand can be raised during the currency of a Settlement as there could be no estoppel against law.

4. I propose to tare up each of these arguments below :‑‑‑‑ "The record shows that the Management served the charge‑sheet on the General Secretary of the Union on 1st July 1980 after two days the General Secretary served a notice of demand which was followed by‑ a notice of strike. This proximity of dates establishes a cause and fact relationship between the charge‑sheet served on the General Secretary of the Union and the notice of demand served by the General Secretary of the Union which was followed by a notice of strike by him, It also establishes that the two notices viz. or demand and strike establishes were served mala fide with a view to seeking protection of the provisions of section 47 of the Industrial Relations Ordinance, 1969. An action is mala fide when it is taken with ulterior motives to quote my Lord Mr. Justice Hamoodur Rehman, C. J. in Federation of Pakistan v. Saeed Ahmed Khan P L D 1974 S C 151 'Mala fide' literally means 'in bad faith'. Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or action taken in fraud of the law are also mala fide'

"

5. In this case Mr. Noman Saleem Nayer gave the two notices of demand and strike in colourable exercise of his powers as General Secretary of the Union for the collateral purposes of sustaining himself into service. This was not authorised by the Industrial Relations Ordinance, 1969 under which the action of giving the notices of demand or strike was taken. This action was therefore in fraud of law and as such mala fide. Now a mala fide cause stands in the same position as acts done without jurisdiction. One is fortified in holding this, by a decision of Division Bench of the Lahore High Court reported as P L D 1974 Lab.

18. In this view of the matter the notices of demand and strike could not be sustained at law. The two notices were apparently in fraud of law, to thwart the disciplinary procedure adopted by the Management. This action was thus mala fide and could not therefore be upheld. The argument that the Management had an advance notice of the Union's intention to raise an industrial dispute and they therefore with a view to thwart the Union's effort served a charge‑sheet on the Genera Secretary, conveniently ignores the factum of the libellous letter having been written by appellant to the Management, and does not therefore carry any force.

6. As for the raising of an industrial dispute during the currency of a valid settlement the learned counsel has drawn our attention to the reported cases P L D 1964 S C 633 and P L D 1967 Kar. 547 besides P L J 1977 Tr. C. (Lab.) 303). All this we find the first and the last precedent relevant but have in. all humiliated failed to see any relevance of this case with P L D 1967 Kar. 547 which was an appeal decided by Mr. Justice Noorul Arifeen between Divisional Superintendent, P.W.R. and Ali Marian on a matter falling under the Workmen's Compensation Act (Act VIII of 1923). The learned counsel urged P L D 1964 S C 633 to state that the Conciliation Officer is not competent to adjudicate but to bring about a settlement of dispute. He also urged that points of locus standi of Union to raise dispute or an existence of an industrial dispute are to be adjudicated by the Labour Court when settlement was not possible by conciliation stage. The facts in this case were that the Hotel Metropole Employees' Union issued a Charter of Demands to the Management of the Hotel Metropole which being ignored, the said Union moved the Labour Commissioner to settle the dispute which had arisen. The conciliation proceedings were con ducted by an Assistant Labour Commissioner, and several meetings were held. The objection was raised by the Management that the said Union consisted mostly of ex‑employees of the Hotel and did not represent the Hotel employees who had a Union of their own, which the Management had recognized. It was denied that the Hotel Metropole Employees' Union had locus standi to raise a dispute with the Management, and on this basis, it was contended that there was no industrial dispute within the meaning of Industrial Disputes Ordinance, 1959 which the conciliation authorities could deal. Now it was to be seen that in view of this the settlement was impossible and obviously the point of locus standi and consequently point of existence of industrial dispute would fall within the domain of the Industrial Court requiring adjudication in the instant case. However, the question was whether a right was guaranteed or secured to the Management by law or settlement whereby the Union was precluded from raising this industrial dispute. This issue was not before their Lordships of the Supreme Court in the cited judgment and the pronouncement in that case could not be used legitimately cited here.

7. The record shows that a valid settlement existed between the parties. The last clause of that settlement provided as follows :‑ "This settlement shall be binding for a period of two years to expire on March 31, 1981, and during this period no demand having any financial implications will be raised by the Union. The Union hereby give an unequivocal undertaking not to present or agitate any demands carrying any financial implications during the currency of this settlement, which has been their practice in the past. The Management have made it quite clear that any violation of this undertaking will be seriously viewed by them and they further expect that in consideration of the consistently sympathetic and liberal attitude shown by them, the employees at large will make a sincere effort to increase productivity and avoid cases of indiscipline. The Union, on their part, have given an undertaking to maintain a peaceful and harmonious atmosphere in the Company and not to indulge in or encourage my individual or collective action which is tantamount to indiscipline or breach of law." There was thus no room for raising the industrial dispute during the currency of this settlement as bad been promised by the parties at the time of putting their hand to the settlement. The learned counsel for the appellant cited a similar case of Grindlays Bank Limited v. Grindlays Bank Em ployees' Union, Rawalpindi (1), which came before the Punjab Labour Court No. 1, Lahore. In that case the Union entered into a settlement with the Management of the Bank and Condition No. 30 of that settlement provided that no demand having any financial implication for the Bank or any of the Demands contained in the Annexure shall be raised during the currency of settlement. In spite of the above condition a demand notice was given by the Union on 2nd April, 1976 which was followed by another demand notice on 29th April, 1976 yet another demand notice on 13th‑July, 1976 and again another demand notice on 10th September, 1976, the reason for servicing so many demand notices according to the petitioner‑Bank was that the General Secretary of the Union was held guilty of 'misconduct' and an application under section 47 of the Industrial Relations Ordinance, 1969 seeking the permission of Labour Court had been lodged to dismiss him. In order to save him from the pro posed punishment the Union was bent upon creating trouble by serving these demand notices. The learned Presiding Officer of the Labour Court then formulated the two questions for determination (i) Whether a Union cannot raise any industrial dispute during the currency of the settlement dated 29th October, 1975 (ii) Whether the Union cannot serve a fresh Demand Notice during the pendency of an industrial dispute ? He then observed that on the first question reference may be made to 1960 P L C 166, 1966 P L C 279, 1968 P L C 87 and 1975 P L C

153. A perusal of these decisions would show that great sanctity has been attached to the settlement arrived at between the parties. A settlement arrived at between the parties must be given due weight, so as to maintain industrial peace. The Industrial Relations Ordinance, 1969 has fixed 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 spirit 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. However there are circumstances where a fresh industrial dispute can be raised in spite of any settlement even if there is a condition in the settlement that no demands having any financial implications shall be raised during the currency of the settlement. The Union can raise any demand provided it can be proved that the circumstances have been changed. Whether the circumstances are changed or not is a question of fact and it can be considered in the industrial dispute raised by the Union."

8. Following this line. of argument we keenly inquired about the change of circumstances were a fresh industrial dispute could be raised in respect of any settlement even if there is a condition in the settlement for raising no industrial demand relating to any financial implications. We found, and it is indeed apparent from the Charter of Demands that there were bona fide no such impelling or compelling circumstances where a fresh industrial dispute could be raised. Further we would respectfully question the very reasoning of this precedent after the learned Presiding Officer has himself stated that no less than four demand notices have been served in order to save the General Secretary of the respondent Union from the proposed punishment. In our view the question of mala fides should have been. gone into under that account of circumstances. We therefore would not .place reliance on this precedent. Still as we have already stated no new circumstances necessitating the service or fresh notice of demand and strike were shown to us. The learned counsel for the respondent then argued that conduct of the Management in concluding a subsequent settlement amounted to an acquiscence and release the Union from its undertaking to be .bound by the Settlement of 1979 in that respect. We do not agree with this line of thought. The acquiscence of the Management could not be claimed as a right and could not be considered to have destroyed the existing valid settlement which is enforcible at law. We are of the view that the acquiescence in conclud ing a settlement after the settlement of 1979 could not be extended so as to invalidate the express term of settlement quoted above.

9. Settlements between workers and employers are made with a view to ensuring industrial peace. If industrial peace were to remain disturbed there would be no purpose in concluding settlements or fixing time limits of such settlements. It would therefore thwart the purpose of the Industrial Relations Ordinance, 1969 if the time limits set forth in the settlements are not honoured and fresh disputes are raised every now and then. No such interpretation which terms the procedure prescribed under section 26 of the I. R. O., 1969 into a vehicle of industrial anarchy could be permissible or allowed by law. This position of law has been even previously, enunciated by various Courts including this Commission. I would refer to a judgment cited as N L R 1979 Lah. 380 in which one of my learned brothers had held that 'if already settled demands are to be reagitated when earlier settlements were still in force, consequences would be chaotic resulting in endless litigation and opening of floodgate of disputes and depriving establishments of a moment of peace which is principal aim of Industrial Relations Ordinance, 1969. A settlement is binding for period specified therein and fresh demand cannot be raised during subsistence of a current settlement, especially when a specific clause to that effect is incorporated in settlement".

10. We are further fortified in this view of law by judgments in 1978 P, L C 64, 1960 P L C 166,, 1966 P L C 279, 1968 P L C 87, 1975 P L C 153,1975 P L C 79 and 1975 P L C

564. We, therefore, find no merit in this appeal which is dismissed. Appeal dismissed.