1971PLC241 (PLP)

8. The learned Representative for the Management has in his argument raised three points and no other. His first contention is that the last settlement between the parties Exh. R 12 dated 13th March 1969 precludes the Workers from raising any demand against the Management as now brought forth by them because it is still binding on the parties as its period of operation has not run out. This period, he contends, is two years subject to termination of the period by notice from either side in writing as laid down by section 19(2) of the Repealed Ordinance. His second contention is that the reference order- by the Government does not mention the demands of the Workmen to be adjudicated upon nor it mentions or reproduces these demands by way of a Charter in the order itself, therefore, the reference is void as such all the demands referred for adjudica tion be rejected. The third contention urged by him is that on the facts shown by him in, the application for preliminary objections the strike was illegal, therefore, no reference under section 32(3) of the Ordinance could be made by the Government as such this reference be held as void.

9. All these three contentions have been opposed by the learned Representative for the Workmen.

10. I would take up for discussion the contentions in the order they lave been raised and just mentioned above.

11. For appreciating the first contention that the last settlement between the parties Exh. R-12 aforesaid precluded the Workmen from agitating the present demands. It will be necessary to reproduce these demands which are specified is the Charter of demands that was found annexed to the order of reference when it was received in this Court as stated earlier. This Charter of Demand mentions the following demands :- (1) (a) Whereas should be paid by off Benefits/Compensation for the loans in wages for the day/days caused due to their return after their coming on duty for non-replenishment of Bears on loose seen after the exhaustion from 13th March 1969 to 20th May 1969. (b) Workers returned or laid off after detention for more than prescribed time limit due to power failure on ' 3rd May 1969. On 10th May 1969 should be paid full wages for both days. (2) (a) 10 days' casual leave not allowed since March 1969 to the workers till June 1969 should either be credited to their Leave Account or paid in Cash in lieu. (b) Book-proof procedure for applications and grant should be settled. (3) All absence worked in Attendance Sheets in spite of applications by the workers and for paid Festival Holidays on 27th October 1969 should be corrected and not be used against the workers. (4) Identification should be issued soon after entry in instead several months. (5) The rates of wages for New System of Drawing of warps through, Healds, Needs and Droppers should be given Rs. 3.50 per. 1000 warps with effect from 1st September 1969. (6) The wage rate of all workmen excepting unskilled should be raised to such extent as to maintain the difference in their respective wages and that of unskilled which are before the Minimum Wages Board. Award dated 15th December 1969. This increase should be with effect from 1st July 1969, as it has necessitated due to Government Decision of fixing Minimum Wage for unskilled at Rs. 140. (7) All Packing Department workers should be designated and treated no skilled workers. Designation changed on Attendance Cards as collies should be re-shown as packers. (8) Workman Alif Dean, Khan Bux, Abdul Latif, Hahia Shah and Baqar Khan who operate Jiggers should be designated and treated as such for all intents and purposes. (9) Workman Inayatullah Khan s/o Barkatullah, Helper workshop should be taken back on duty with retrospective effective effect.

12. The argument raised in support of the first conten tion precisely is that all the demands, now referred for adjudication raised by the Workmen as shown in the Charter of Demands (reproduced above) are demands which involved financial liabilities to the Management and obviously there, is no demand claiming bonus which has been excepted from the last settlement Exh. R-12 as such in accordance with this settlement the Workmen are precluded from agitating these demands The question for determination essentially is to ascertain whether all the demands mentioned id the Charter of Demands really would involve financial liabilities to the Management. A perusal of these demands in Charter would show that except for the demands 2(b), 7 and 8 all the other demands would involve financial liabilities for the Manage ment to meet. I am, therefore, convinced by the contention that except for these three demands just mentioned the rest of the demands in the Charter cannot be agitated by the Workmen as I am of the view that the last settlement Exh. R-12 to all intents and purposes, as far as the present proceedings are concerned, would have to be held as binding and operative at least until the time the Reference was made by the Government. I may so for the simple reason that it cannot be disputed that this last settlement so far its period of operation is concerned would be governed by the provisions of section 19(2) of the Repealed Ordinance unless, as provided by this very provision, notice of termination by either party in writing is given to the other even after the expiry of the period of two years for which the settlement is to run and be binding, or when this notice in writing may be given earlier the date of such notice. In this case it has been brought on record in evidence that notice in writing dated 20th March 1970 was given by the General Secretary of the Union of Workmen to the Management stating that the last settlement between them Exh. RA2, dated 13th March 1969 would stand terminated after two months from the receipt of the notice. This document is Exh. R-15 on record. It is abundantly clear that even if we take into account this notice the, settlement Exh. R-12 would stand terminated on 21st March 1970. The reference by the Government in this case was however, made 'on 24th March 1970 as said earlier and the point of time to be taken into account for adjudicating upon the present demands would be date on which the reference was made as the position of 'the Industrial Dispute under adjudication now would have to be considered as on that date, therefore, on this date the present demands by the Workmen could not be agitated except for the three demands mention by me already which do not involve financial liabilities. The workers, would, however, which is needless to say, be a liberty to re-agitate all the demands involving financial liabilities to the Management as now brought forth again in accordance with the relevant law if they so desire. Hence I find that except for the three demands mentioned already which do not involve any financial liability to the Management all the other demands contained in the Charter cannot be adjudicated upon in the present proceedings for the purpose of these proceedings the Workmen are precluded from raising these demands as such accordingly these demands are rejected for the purpose of this case.

13. I am also supported in this view by the rulings which are cited by the learned Representative for the Management and these are 1966 P L. C 274; 1968 P L C 335 and 1960 P L C 35 which is a decision by our own Supreme Court.

14. However, despite this correct view which has to be taken on the point under consideration the learned Representative for the Workmen still contended that subsequent to the last settlement Exh: R-12 the circumstance and conditions for the Workmen had materially changed as established, according to him, by the evidence of the six witnesses adduced by their side as such it should be held that the last settlement was no longer binding soon after it was executed, therefore, the present Industrial Dispute raised by these Workers was properly re-agitated and can be adjudicated upon in the present proceedings. In this connection he relies upon the provisions of the proviso to subsection (3) of section 40 of the Ordinance. It will be advantageous to repro duce the entire section 40 in order to appreciate this contention. Section 40 is in the following terms: "(1) A Settlement shall become effective: (a) if a date is agreed upon by the parties to the dispute to which it relates, on such dates ; and (b) if a date is not so agreed upon; on the date on which the memorandum of the settlement is signed by the parties. (2) A settlement shall be binding for such period as is agreed upon by the parties, and if no such period is agreed upon, a period of one year from the date on which the memoraa4um of settlement is signed by the parties to the dispute aid shall continue to be binding on the parties after the expiry of the aforesaid period until the expiry of two months from the date on which either patty informs the other party in writing of its intention no longer to bye bound by the settlement. (3) An award given under subsection (1) of section 37 shall, unless an appeal against it is preferred to the Tribunal, becomes effective on such date and remain effective for such period, not exceeding two years, as may be specified therein. The Arbitrator, .the Labour Court, or, as the case may be, the Tribunal, shall specify dates front which the award on varies demands shall be effective and the time limit by which it shall be implemented in each case Provided that if, at any time before the expiry of the said period, any party bound by an award applies to the Labour Court which made the award for reduction of the said period on the ground that the circumstances in which the award was made have materially changed, 'the Labour Court may, by order made after giving to the other party an opportunity of being heard, terminate the said period on a date specified in -the order. (4) A decision of the Tribunal in appeal under subsection (3) of section 36 shall be effective from tile date of the award. (5) Notwithstanding the expiry of the period for which an award is to be effective under subsection (3), the award shall continue to be binding on the parties. until the expiry of two months from the date on which either party informs the other party in writing of its intention no longer to be bound by, the award."

15. By mere perusal of section 40 reproduced above and particularly the proviso to subsection (3) of it, it will be seen that it is abundantly clear that it is with regard to the reduc tion of the period of duration for which an "Award" is no operate when after the circumstances in which the award was made have materially changed. It does, not speak or oven by any stretch of imagination refer to a "settlement" arrived at between the parties. In my opinion this proviso has been advisedly so worded by the Lawmakers .in order to touch only an "Award" which is passed by a Labour Court and "a Settlement" "arrived at between the parties as defined in the Ordinance is left untouched. The object and the principle underlying the exclusion of the words "or Settlement" after the word "Award" in the proviso is obvious because an award is a decision which is super-imposed by the Labour Court on the parties to have as such provision has been made by way -of this proviso to allow the parties to have their redress from the Labour Court in case material changes in the circumstances take place subsequently which are found to be creating different situation from that obtained tit the time when the Award was made. Justice and fair play also, in my opinion, justify the insertion of this proviso to subsection (3) of section 40 of the Ordinance. But on the other hand it will be seen that no similar provision is made in respect of a "Settlement" as a settlement in a compromise priv4tely arrived at between the parties thereto as such it carries more sanctity than an Award of the Labour Court which is a super-imposed decision on the parties upon adjudication of their disputes. The learned Repre sentative for the Workmen concedes that identical provisions as the pr-sent one as contained 'in this proviso also existed in Industrial Disputes Act of 1947, Industrial Disputes Ordinance, 1969 and the Repealed Ordinance, 1968. He has cited numerous authorities in support of his contention under discussion also but it is no use enumerating these reported cases as it has not been shown to me that they apply to the case of a "Settlement" which now arises for consideration.' Hence all these authorities are of no avail to him on this point. On the contrary the learned Representative for the Management has cited a reported case precisely on this point and which has full bearing on it and is a decision on the identical provisions as contained in the Industrial Disputes Act, 1947 which case has been decided by Bombay High Court and is reported in Indian Factories Journal, Vol. XII at page 169 wherein this point decided in the following terms :- "When the Legislature provides for particular agreement being binding upon the parties to an industrial dispute, it clearly intends that there is industrial place with regard to the subject-matter of the agreement for the duration of that agreement, and it is obvious that if there is to be industrial peace for the period contemplated, then neither party to that settlement can be allowed to raise an industrial dispute with regard to that settlement. Considerable light is also thrown upon the proper construc tion of section 19(2) by the provisions contained in that section with regard to an award. An award is a super-imposed decision and the parties to the award have to abide by it whether they like the terms of the award or not, and in the case of an award specific powers are given to Government to curtail its duration, to extend it, and in cases where Government considers that since the award was made there has been a material change in the circumstances on which it was based, to refer the award or part of it to a Tribunal for decision whether the period of operation should not by reason of such change be shortened. Therefore, it is clear that but for this specific provision with regard to an award the position of an award in law would have been the case as that of a set0ement. An award being as binding in Its nature as a settlement, the Legislature had to give specific power to the Government to interfere with the finality of that award by empowering Government to refer it to a Tribunal under -circumstances mentioned in section 19(4). But the Legislature advisedly did not confer that power upon Govern ment with regard to a settlement arrived at between the parties, and the reason for the Legislature not doing so is obvious. As already said, an award is not the result of an agreement between the parties. It is something super-imposed upon them by the force majoure of law. But a settlement in a purely voluntary matter and parties may or may not arrive at a settlement. But when parties do arrive at a settlement the law gives to it a greater sanctity than it gives to an award, and, therefore, the industrial law does not contemplate any interference with the finality of a settlement and it compels the settlement to run on for the period mentioned in the settlement itself and neither party is permitted to challenge that settlement during its duration. If the subject-matter of an award or a settlement could be raised as an industrial dispute, then it is clear that there was no reason for the Legislature specifically to confer power upon Government with regard to referring an award for adjudication. In the absence of any much specific provision with regard a settlement, it is clear in our opinion that neither any industrial dispute can be raised with regard to the settle ment nor can matters covered by that settlement form the subject-matter of conciliation proceedings under section

12. In taking the view that we are, deciding anything which is prejudicial to the rights of labour. If we were to accept the contention put forward by Mr. Bhandare, it would become extremely difficult, for employer and employees to arrive at any settlement without first going to a Conciliation Officer. If the law was that a private settlement of an industrial dispute could not be arrived at which could be recorded by the Conciliation Officer and which could be made binding, then it would be very difficult to, induce parties to arrive at any such settlement, because the whole of Mr. Bhandare's argument revolves round this that it was open to the workers of opponent No. 2 company the next day after they had arrived at this agreement to resile from that agreement, Industrial peace demands that sanctity should be attached to agreements freely arrived at by the parties and if the view went abroad that private settlement have no sanctity whatsoever, then there would be little chance of dispute ending by settlement between the parties. It will indeed be extremely unfortunate from the point of view of labour."

16. This ruling has also been quoted with approval in a decision by Dacca High Court in 1960 P L C 166.

17. I, therefore, find that for what has been said and discussed above it is abundantly clear that the duration of the operative period of the last Settlement. Exh. R-12 between the parties for the purposes of these proceedings cannot be reduced as there is no provision in law to enable this Court to do so. In this finding I am also further fortified by the fact that if accord ing to the Workmen the last Settlement could be challenged due to material changes in the circumstances subsequently from these obtaining at the time when it was reached there was no necessity for them to have served the notice of termination of this Settlement on 20th March 1970 Exh. R-15 on the Management seeking to, bring it to an end, 2 months thence, which clearly shows that they themselves were of the view that the last settlement was binding on them .until it was terminated about 2 months even after the References by Government. Obviously under these circumstances no relief can be granted to the Workmen due to any change of circumstances as i9 now claimed.

18. The next contention raised by the learned Representa tive for the Management was that, to repeat in simple words, the reference by the Government was void as the Charter of Demands had not been reproduced in the order of reference itself as this order specifically in its endorsement below the, order directed the Zonal Directorate, Labour Welfare, 'Karachi to furnish the Charter of Demands to this Court. I have already said oft this point that when the order of reference was received by this Court it was accompanied by a copy of the Charter of Demands. Nevertheless the learned Representative for the Management in support of his contention has cited 1960 P L C 205 which is a decision of our Supreme Court but a bare perusal of this reported case will show that in that case the reference by Government was held to be void and illegal because it was found to be in general terms regarding a single dispute. It has also been observed therein that before making a reference to a Tribunal the Government should know what is the precise matter -in dispute upon which it proposes to invite a binding adjudication by the Tribunal as the Conciliation Officer had reported the existence of a single question or dispute between the parties, and on that very day the Government just referred a general Industrial Dispute" to the Tribunal. Obviously this is not the case in the instant matter as such on this short ground itself this ruling is distinguishable and of no avail to the Management. At best, regarding the point under consideration, it can be said that the objection raised is a highly technical one which has caused no prejudice to the Management at all or for that matter even to the Workmen and what is more is that a copy of the Charter of Demands was also appended to the order of reference when this order was received in this Court as such the present contention is untenable and of no legal consequence.

19. The third contention raised by the learned Representa tive for the Management is that in view of the last settlement Exh. R.12 subsisting at the time when .the strike was staged by the Workmen in order to raise the present Industrial Dispute by serving a strike notice on 18th December 1969, the Workmen were precluded from agitating adjudication of the present demands, therefore, the strike was illegal as such the consequent reference order was also bad and void in law. I have already held above that the last settlement between the parties as the position now is clear does not cover three demands also specified by me above as such it cannot strictly speaking be said that the strike at least with reference to these three demands would be illegal. In this view of the matter obviously for the purposes of agitating the said three demands, which are not affected by the last settlement from being precluded to be raised, there is no bar to the present proceedings going ahead with respect to them and these demands being adjudicated upon and determined by the (Court. No authority in support of the present contention by the learned Representative for-the Management has also been cited that when some of the demands have been properly raised for adjudication but as respects others the strike was illegal, therefore, the entire reference consequent upon that strike should be illegal. I, therefore, hold that the three demands mentioned by no which are not affected by the last settlement adversely can be adjudicated upon and decided by this Court.

20. For the foregoing reasons the application raising the preliminary objections is partly allowed to the extent that the demands Nos. 1, 2(1), 3, 4, 5, 6 and 9 cannot be adjudicated upon as the Workman are precluded from agitating them in the present proceedings subject to what I have already said about it as to their right to raise them again but Demands Nos. 2(b), 7 and 8 would be tried and adjudicated upon. The case may accordingly be now fixed for deciding these three demands. Announced in open Court.