1989 PLP 398 (PLC)

19. What the employer wants relief from the Court that this be declared by the Labour Court that the workers went on strike on 4‑4‑1987, while the conciliation failed on 15‑4‑1987. In other words there is no compliance of provisions of sections 26(1), 20(3) and 31, I.R.O.

20. Mr. Mahmood Ghani has made submissions, more on this aspect of conciliation that the stage of conciliation is mandatory obligation and therefore the extension by mutual agreement as contemplated by subsection (5) has been violated rendering the strike illegal.

21. The Court has referred the provisions of sections 26, 27, 28, 29, 30, 31, 32, 41, 43, 46, 46 and 45 of the Industrial Relations Ordinance. These are the provisions regarding conciliation, arbitrations, Industrial Disputes, the legality of strikes.

22. Subsection (5) of section 30, to which the emphasis is made of mutual consensus, has been shown by Mr. Shafiq Qureshi as directive, rather than, to have the imperative obligation. This section, also refers to the status of the parties, who will represent, firstly there should be nomination, and authorization, to negotiate and enter into settlement. In other words, by the very wordings of nomination and authorization, if there is no express wordings, that authorization shall be in writing or nomination be in writing, the subsection (2) does not lose its effect if parties appear before the conciliator with no objection, and, then follows that if conciliator desires he may call the employer.

23. Section 49 may also be referred where it provides that no party to Industrial Dispute, be represented by legal practitioner in any conciliation proceedings and the workman be represented by C.BA. Likewise employer be represented by due authorization of person. The words emphasised in section 30, of authorization to negotiate by simple nomination or authorization with further addition in ‑section 49 that employer shall be represented by duly authorized person. To this extent, the Labour Court finds the different language that in subsection (2) of section 30, the word, is parties to the dispute and in section 49 there is clarification, for the employer of the person of due authorization. Although, the word writing, is not used, in both these sections, but authority to negotiate and enter into an agreement appears to be of general nature with this qualification, of due authorization. In other words what the Labour Court feels,, that the person authorized, must be enjoying the confidence of the employer, as in this case no objection was raised by the employer. It is not the objection of the union which is to prevail, as long as the confidence is of the employer, in the person to enter into negotiation, unless the emphasis was made, by the conciliator to call the employer personally. Likewise there is a bar for the legal representative to represent m the Industrial Dispute, during the stage of conciliation proceedings. But there was no disqualification for Mr. Shafiq Qureshi to sit in the proceedings, if not negotiating himself to render him disqualified. In other words, he had no entitlement, being legal representative, of representation, obviously the object and scheme of the Ordinance what the Labour Court understands that no third person should come as an impediment in the way of negotiation. Similarly the legal representative should avoid, even to sit in the proceedings. But the presence of Mr. Shafiq cannot render the proceedings ineffective. But here new questions have been raised that the consent was revoked by the intervention of Mr. Shafiq Qureshi to which it has been denied by the B president of the union that Mr. Siddique was not present at that time to say that the statement was given by Mr. Shafiq Qureshi, because he came late. Mr. Siddique of course has denied his late coming. There is no specific ruling of conciliator. But what the Court finds that no extension in writing is given nor the consent is revoked in writing. Court therefore relies on the evidence of the conciliator. Exh: A/2 of course shows the signature of the president and Mr. Muhammad Siddique Rafi that the conciliation was extended by mutual consent, upto 15‑4‑1987.

24. Mr. Minhas President of the Federation has shown that he had told Mr. Zahid General Manager, to come on 2nd, else the conciliation will fail. This is not supported by any positive evidence, that any such talk was communicated to the conciliator between Mr. Zahid and Mr. Minhas.

25. The evidence of the conciliator who is the official functionary, under the Ordinance, is to be accepted what happened during the dialogue, how the conciliation failed, in what circumstances, which, he has shown in his diary. The only dispute, now arises whether the conciliation failed on 2nd or the failure certificate issued on 15th was within the jurisdiction. If the diary is seen, it appears that the negotiations failed by denying the concessions. If the conciliator extended the matter, it was because there was consent as per subsection (5) of section 30.

26. What the Labour Court feels, from the provision that the conciliatory stage of Works Council, conciliation, arbitration, from the very nature of its adjective whether appears to be of directive nature, to sit and mediate, as far as possible to bring harmonious relationship between employer and the union, to avoid litigation and to shorten litigation and to resolve the Industrial dispute. If Mr. Mahmood Ghani has contended that this stage is of the imperative obligation, for, the provision of the Ordinance has made an emphasis to pass through various stages of which there is mention in many provisions, whether it is mandatory obligation on the union, to be bound by the consenses agreement to sit positively. The word is used "may". In other words it was left to the option of the parties to agree or not to agree, if the option is there, what the labour Court feels and finds, in its opinion, that the same party can also revoke the consent and straightaway go to the Court or to go on strike after the expiry of the notice period. If the contention be that the strike lasted for more than many days which affected the production, there is already provision in the Ordinance itself for the prohibition of strike in the national interest under section 46, I.R.O. The legality of the strike, that conciliation failed on 15th and therefore, no Industrial dispute can be raised, the Labour Court gives the following reasons namely, that if on 2nd there was total failure of talks, the conciliation certificate would have been issued to avoid the strike from proceeding further but if the employer by its own concept found that extension cannot be revoked, and therefore, it was illegal strike, the Court cannot accept this reasoning of the employer. No doubt the conciliatory stage is beneficial to both sides but its very adjective is of the directive nature to avoid litigation and in the interest of public policy. The industrial dispute cannot be pushed away from adjudication for the consent, could not be revoked. It is merely the procedural observance and not the illegal violation of particular right.

27. The second question is of the justification of strike, which Petitioner has already placed the loss of bonus, the uniformity of the pay scale and other allowances which are the subject‑matters of Industrial Dispute for adjudication.

28. Mr. Mahmood Ghani learned Senior Counsel, has been of great assistance to the Court in placing the background, the decisions of the highest Courts for reference, in his note of arguments, and certainly of great legal interest, what the Labour Court has seen. Mr. Mahmood Ghani has referred the case of Brooke Bond Pakistan Limited v. Conciliator P L D 1977 S C

237. He has given certain extracts in the context of the reference of section 28, section 29, section 30 and section 31 of the I.R.O., where the principle involved was that in the absence of the failure of conciliation proceedings, the appointment of the arbitrator is not warranted by the provisions of the Ordinance.

29. Mr. Mahmood Ghani has also referred to decision of 1971 Ata Muhammad v. Settlement Commissioner, where the principle involved was that as a general rule, statutes which enable persons to take legal proceedings under certain specified circumstances, demand that these circumstances must be accurately obeyed, not withstanding the fact that the provisions are expressed in merely affirmative language. He has also referred to P L D 1971 Quetta 127 and P L D 1982 Lah. 657, where also the principle involved was that it is the cardinal principle of the interpretation of the statute that when statute lays down the manner of doing a thing, it shall be done in such a manner and in no other manner. Mr. Mahmood Ghani has also referred to a decision of my lord the honourable Judge of the High Court by arguing the case on this emphasis that his lordships, have held, that the scheme of the Ordinance is, that before an Industrial Dispute is adjudicated upon by the Labour Court, parties have to comply with the mandatory requirement which includes negotiation, conciliation, arbitration and then workers can resort to strike after expiry of notice period.

30. Besides there is another decision of the reference of the cases of the Supreme Court of India 1961 P L C 149 at pages 388, 149 and

392. He has given certain extracts also of the decisions. In one decision their lordships of Indian High Court is shown to have held that the strike resorted to during pendency of conciliation, is illegal. Their lordships of the Indian Supreme Court, observed which Court respectfully refers: . "In our opinion the pendency of conciliation proceedings between the applicant and the union attracts the provision of section 22(1) (d) to the strike in question and makes the strike illegal under section 24."

31. There is also decision of 1960 P L C at page 35 of the honourable Supreme Court of Pakistan. The Labour Court respectfully quotes from the extract the last para: "It is eminently reason to require that the calling. of the strike should be accompanied by the most careful enquiry anti satisfaction that bona ride cause of dispute actually existed."

32. Mr. Mahmood Ghani has also referred to P L D 1971 Lahore

220. This decision was in the context that the Ordinance prescribes both the remedy and the manner in which it may be enforced.

33. With this case decision in the context of the facts and the evidence supporting, the citations which are referred of the Indian Supreme Court the point is whether Industrial Dispute Ordinance was different in language to that country, when the Industrial Relations Ordinance 1969 is applicable to this country. These two acts may be different, for the purpose of application to the case in Pakistan. If the principle involved is that the strike resorted to during the conciliation proceedings, is illegal, the Court has agreed with the view of Mr. Ghani and has no other view from the view of Mr. Ghani.

34. But the main question is that if the stage is mandatory what the Court has referred the decision of 1981 P L C 97 as the judicial precedent of the highest Court, the subsection (5) of section 29 on which Mr. Mahmood Ghani has argued the case that the mutual concurrence of continuance of conciliation proceedings, with respect to his view appear to be different from the mandatory exercise of the stages, arbitration, conciliation and negotiation etc. Here the word is "may" that if the parties agree they can continue the conciliation. Word "may" appears to be of directive nature where the stages are not disputed regarding mandatory exercise of the jurisdiction but what the Labour Court feels that if agreement is made to continue conciliation and subsequently party exercises the option, in the Labour Court's view, either party can withdraw its option. Every case is to be seen in the context of the circumstances how the conciliation dialogue progressed and how' failed. Whether there was flexibility on the part of the employer which compelled the union to terminate the conciliation and proceed after expiry of notice of strike. The diary of conciliator dated 2‑4‑1987, shows the state of the mind of the employer what it writes "Mr. Siddique in the first meeting and also stated in today's meeting that he is not prepared to accept any demand, for conciliation meeting' may be failed. There is also letter of 8‑9‑1987 Exh: W/2 to show that management is not co‑operating, conciliatory effort could not achieve success.

35. With this state of mind if no softness of attitude was shown for the union to sit and extend the time for further conciliation, the union if found no further progress, was within its jurisdiction, besides the statement of procedural nature and not of the substantive right.

36. The Labour Court therefore in its precise opinion, concludes, that though, the stages, are provided where both parties had to make efforts, to negotiate and to shorten the litigation and to avoid the strike in the national interest. But in context of subsection (5), what the Court finds that the union made all efforts finding no flexibility and very clearly Mr. Siddique gave the impression that no demand will be accepted and the conciliation may be filed.

37. The Court is not proceeding on the sentiments that it was a long strike and therefore there was a national loss. Firstly if it is a legal strike the union has a jurisdiction under the Ordinance. Secondly the prohibition of the strike if it was causing further loss the Court has jurisdiction to prohibit even the legal strike, if it is not followed it has its own legal consequences as the independent cause of action.

38. However, some aspects have also come regarding the removal of the office‑bearers during pendency of conciliation, for which application is pending under section 47 and to clear the position of the wages during the strike period and the dismissal, the proceedings were also taken before the Labour Court under section 25‑A. Mr. Mahmood Ghani has argued that this aspect is sub judice separately in other petitions and should not be commented. The Court has seen the entire evidence and finds that number of factual aspects have inter‑connection as to the aspect of dismissal of office‑bearers, for instance the impression is given by Mr. Shafiq that on 26‑7‑1987 it was agreed by the company's officials that no action will be taken against the workers after the ending of strike. Another factual aspect is that after they went on strike the strike was prohibited and was not followed what will be effect thereon. Third aspect will be that if the employer has jurisdiction under Standing Order 15 to proceed against the employee for misconduct which has no connection with the Industrial Dispute but was an independent act in view of section 47 and its limitations, what will be the effect on the dismissal whether permission is necessary or it was not necessary. The employer can take action itself subject to review under section 25‑A, I.R.O. So. these are the bundle of facts for finding on each, point.

39. But so far as the application under section 34 is concerned, where the employer has come to seek declaration as to the right which he wishes to enforce that it has been infringed, the sensitive question and only question for the purpose of this application is concerned whether there was leg, strike? Whether after 2nd April, 1987 the conciliation failed and the union was within its jurisdiction to D proceed on strike. And the conciliator had to issue certificate of conciliation before 4‑4‑1987.

40. The Court has also benefit of hearing Mr. Shafiq Qureshi, what he has said precisely.

41. Mr. Shafiq Qureshi has contended that the consent cannot override the jurisdiction of conciliator, where the mutual extension is purely the act of the parties.

42. Mr. Shafiiq Qureshi has referred also to the entire evidence and justified, the bona fides of strike. In this context also the Court refers Industrial Relations ordinance with the commentary by Mr. Nisar Ahmad. On page 127 what the author writes: "This is well recognized cannon of interpretation of statutes that direction in statute as to the time within which public officer is to perform public duty is ordinarily intended to be directory rather than mandatory."

43. Shortly to summarize, the Labour Court is of the opinion that if the provision of legal strike, is in the Ordinance the union was within its jurisdiction to raise this dispute what was permitted by law. The revocation of consent is not the expressed provision. Likewise if the word used in subsection (5) of section 30 of the I.R.O., the Court agrees with Mr. Mahmood Ghani that the union to submit to the conciliator to follow the stages of negotiation, indeed may be of mandatory exercise and further assisted in view of the high judicial precedent. But the words conciliation proceeding may be continued was the option of the party and mainly of procedural nature. It depended on the given facts, whether the negotiation in reality had failed to keep the strike or not the strike within period of limitation, what the Court finds that the proviso appears to be in the nature to resolve the dispute in the industrial interest early followed, by the second step of judicial adjudication under section

32. It has also come in the evidence that the conciliation extension was not reduced in writing by the party's commitment to the terms of how long the conciliation will continue. But even if there was no writing, and is admitted fact, the Court has examined the conciliator's file and found no laxity or the softness of the attitude to accept any of the demands which was the purport of the stages of give and take. The words of Mr. Siddique in diary of 2nd April have judicial significance when in the last para. He has said, which is recorded that they are not prepared to accept any demand and the conciliation be failed. These underlined words recorded m verbatim are reproduced, thereby showing the indication that the employer had no mind to negotiate and sit at the table, giving longer time to the Industrial Dispute rather than to shorten the time for reference of the Industrial Dispute to the Court. Each case therefore has gone peculiarity of fact, and Mr. Mahmood Ghani, with great respect to his view, the Court also has made the basis of the citation of P L D 1977 that the stages are in the nature of mandatory exercise. But the Labour Court has taken different view from Mr. Ghani to this extent of limitation that the mutual extension, whether was of directory nature after the conciliator had done his part of functions under the legal authority. This citation of the Brooke Bond was on the facts that the contention was that the arbitration proceedings under section 31 were in the nature of optional aspect, and with the consent of the parties. My lord the honourable Judges, held that the arbitrator is appointed by the parties aria invested with legal authority to adjudicate upon industrial Dispute and discharges quasi judicial function.

44. So, in the context of the view, the arbitrators were appointed by the parties‑that conciliator will pursuade them if for agreement to refer the dispute to an arbitrator, but the conciliator is the official functionary different from the position of arbitrator.

45. Finally whether there is violation of the right secured by the employer under law for the declaration. The Labour Court after examining all the aspects and having seen other aspects of the removal of office‑bearers during conciliation proceedings, is of the opinion that firstly, there is no infringement of the legal right to the employer. It was bona fide strike. Secondly what happened of dismissal is beyond the scope of section 34, I.R.O., when according to Mr. Ghani application for permission is pending under section 47 and some of the workers have filed application under section 25‑A, which aspect is sub judice. Whether the misconduct was connected with Industrial Dispute as in contrast from subsection (1) to subsection (2) of section 47, whether misconduct was independent of the dispute or it was in consequence of the dispute to call for action. Certainly this is a matter again for the Labour Court to examine in view of what the Court finds that if the strike was legal, the wages cannot be withheld, during that period. If the legal strike was prohibited it has its own legal consequences for the union.

46. If Mr. Mahmood Ghani finds, that subsection (5) of the last wordings of mutual conciliation present difficulty that those were of mandatory nature he can file revision on point of law, for the guidance of the Labour Court in future cases.) The Court has respected the view of Mr. Mahmood Ghani but differed with him" that the mutual extension, though existed but in the given set of facts, the union, was not under compulsion, to sit, and further negotiate when there was no softening attitude in the words of Siddique employer's representative. Each case is distinguishable from the facts, which are peculiar in each case.

47. The last emphasis made by the Labour Court is that though Mr. Shafiq Qureshi sat in the proceedings before the conciliator and the General Secretary was also present‑ to represent union. The Court also has not shown his disqualification from sitting there. But the legal representative should avoid to sit in the proceedings of conciliation. Section 49 has guided the workman that he should be represented by an officer of Collective Bargaining Agent. Similarly subsection 2 of section 30 also is in the nature of caution that there should be nomination and authority. 1n other words, it is indicative that no third person should sit so that atmosphere should be free from the technicalities and untoward objections to make the settlement effective and to accept each other's point of view.

48. With this aspect of criticism, of legal nature, another aspect also be cleared. Mr. Mahmood Ghani has referred the citations of the Indian High Court. The citation in the matter 1977 also was in the context of the Industrial Disputes Act. So, the Labour Court as discussed previously, finds that the Industrial Dispute in the present case is under the provisions of Industrial Relations Ordinance with regard to the provisions, its language and purpose.

49. However, this Court will also discuss the point of view of Mr. Shafiq Qureshi, for he has also presented certain judicial authorities, faced with the difficulty whether the conciliation proceedings are in the nature of compulsion or of directory nature, in view of what Mr. Mahmood Ghani has given the impression by giving also authoritative pronouncement of the highest Court, to assist the Labour Court i.e., the Court of law in the dispensation of justice, for his view is that the conciliation proceedings are of mandatory stage, which the Court has briefly discussed on the principles involved.

50. To put it precisely, the Court emphasizes that both counsel have not cited judicial precedents exactly on the point of subsection (5) of section 30 regarding mutual extension of the conciliation and what is its effect, whether it is optional or of compulsive nature.

51. Mr. Shafiq Qureshi has referred case of ‑ 1985 published in Pakistan Labour Cases which is the case of Pakistan Tobacco Company Limited, decided by the honourable Division Bench of our Sind High Court, in the context of sections 28, 29, 30, 31, 32 and 33 of the I.R.O.1n the case the dispute was referred to N.I.R.C. Notice of strike had expired. No conciliation proceeding pending on that date. It was held that the conciliation had failed and the effect of sections 32, 33 and 41 of the said Ordinance, in the given facts, would be that it was open to the union to go on strike had there been no embargo under M.L.R.

23. My lord the honourable Judges, held that party's consent to proceed with conciliation proceedings could not change the positron of the law. The decision came in that context that if the law is there the consent cannot change the position. There was embargo of Martial Law Regulation

23. His lordships also were of the view that if the notice of strike period had expired, the conciliation shall be considered to have failed and‑no such proceedings of conciliation pending on that date. My lords also held further that under section 32 if no settlement is arrived during the course of conciliation proceedings and the parties do not refer, to arbitrator by agreement, under section 31 the workmen may go on strike.

52. Mr. Shafiq has referred to another decision of the highest Court o our country tire honourable Supreme Court of Pakistan. My lords the honourable Judges of the honourable Supreme Court, in its decision of Markers Employees Union which was published in 1976 Supreme Court Monthly Review, it was held in context of section 26 of the I.R.O. that the word "may" in section 26 is not used in compulsive sense but merely directory is My lords the honourable Judges also held that the period of ten days prescribed in subsection (2) is intended to expedite settlement of Industrial Dispute. The Ordinance does not contemplate that if the employer and C.BA. enter into negotiation beyond the period of ten days, or the negotiations continued beyond the period, the entire process under section 26 shall exhaust itself. The same is true if notice of strike is given beyond the period of seven days after the negotiations have failed. My lords, further laid down the law that notice of strike given beyond seven days of the failure of negotiation cannot in principle or on the interpretation which they have placed on section 26 of the Ordinance is said to be illegal.

53. Mr. Shafiq Qureshi also has referred another judicial precedent of the highest Court of this country where my Lords laid down the law that strike may be illegal on account of the contravention of section 22 or 23 of the Industrial Disputes Act, though it may be perfectly justified or a strike though illegal by these provisions, may be the result of provocation on the part of the employer or such strike may last for very short time, modern concepts of social justice would be out‑raged if in such cases the employer could dismiss a workman for his mere absence due to his participation, in such a strike.

54. With these legal views, presented by Mr. Shafique Qureshi, in the context of the judicial pronouncement and also the judicial precedents presented by Mr. Mahmood Ghani the Labour Court, in its brief opinion, concludes that though the stages of conciliation, arbitrations if are of mandatory nature where both parties have to surrender to the‑jurisdiction of conciliator, subsection (5) by the use of word "may", is in the nature of directory, to have the option by either part` after the conciliation under section 30, I.R.O. discharges its function what is laid down in subsection (1), (2), (3) and (4). However, each fact is distinguishable in the given set of facts how far the mutual consensus for the extension binds the party, as it is evident from the diary of the conciliator that on 2nd Mr. Siddique showed no flexibility and desired failure and was not prepared to accept demand leaving no option for the union to sit, with no positive result but to gain time by the employer. Mr. Shafique Qureshi has rightly supported himself by the decision where the ratio deemed m the case of Tobacco Company was that after the expiry of the strike notice, the conciliation shall be deemed to have failed, as in the present case the conciliation failed on 2nd. Mr. Shafique Qureshi, also in the decision quoted of Tobacco, Company has drawn the Court's attention to the observations of my Lord the honourable Judges, which, is to this effect, and the Court respectfully quotes: "Those facts clearly indicate that the conciliation before the conciliator had failed and the Federal Government exercised power under the Ordinance, which in the circumstance of the case had the authority. The question of the issuance of failure certificate does not arise."

55. In the result, to shorten the discussion, the Labour Court concludes that the strike was legal strike and it conformed to the requirements of, law and was also justified strike, in view of what the evidence has been led that what influenced the union to proceed on strike related to the demand of wages below minimum wages, uniforms and the bonus: by also reducing wages. Of course those demands are the questions of final adjudication by the Labour Court under section 32, I.R.O. in the forum it has relevancy and in the context of the balance sheets, unless rebutted.

56. With this precise question, the Court, further concludes that the right which employer claims to have been secured under law that is the Industrial Relations Ordinance, is not violated to grant declaration that any wrong or injury has bean done except what .is permitted by law for the union to go on strike provided it was peaceful.

57. Regarding the wages, as in view of the judicial precedent, the absence of the workers on strike does not entitle to removal of the workers but with regard to this aspect in consideration whether the misconduct has any connection with the Industrial Dispute to enjoy the protection under section 47 L.R.O. whether be office bearer or the ordinary worker. And what is the effect of subsection (1) on subsection (2) of the I.R.O. if the misconduct is of the nature not connected with the dispute and the employer can proceed accordingly. But this question requires exhaustive discussion on the prima facie nature of the permission, required in context of section 47, L.R.O.

58. Lastly Mr. Shafique Qureshi has touched the very sensitive aspect of the proceedings, where, during the recording of evidence the new situation developed, that certain questions were asked of the union to blackmail the employer by demanding certain sum of money to give up the demands. The counsel was warned to put this question, if it involved the personal integrity of the witness that any such question must be possessed with authority, from the employer. Mr. Mahmood Ghani discharged, its legal obligation and got the clarification from the employer, as to the acceptance that he was‑authorised to put this question. Mr. Mahmood Ghani also in the course of evidence produced the cassette before the Court of law as an evidence to be heard to reflect what the employer is being under the strain. Indeed, Mr. Shafique is right that the cassette cannot be admissible and has no relevancy and cannot be admissible under the provisions of Qanoon‑6‑Shahadat. If Mr. Shafique Qureshi, in his argument notes has touched this aspect and desired the Court to take judicial notice of this cassette, and, what the Court has found relevancy to this extent only, that this cassette was produced at the time when heated controversy arose during the recording of evidence that why this question was put to a witness who was active member of the union by official position known, as President of Sind Joint Labour Federation and General Secretary of Port Qasim Azad Labour Union, the cassette if not read, in the evidence is still of considerable importance, if inclined to contain the unpleasant material, before the transfer, of this case, to this Labour Court, the Labour Court finds to forfeit this cassette to remain under the custody of the office of this Court from being exposed to further deteriment) in the interest of justice. The Court would have preferred to take the proceedings separately. But in view of the arguments on this aspect, also and in the argument notes, the. Court has done its duty to refer this aspect and is not happy about this cassette. It shows the inclination of the breach of law Mr. Shafique Qureshi has shown that this was intended to prejudice the‑ Court because these are the speeches. The Court is not going into that aspect, what happens outside. Certainly this has not prejudiced the Court in the judicial matter, as an attempt by the employer to produce the cassette in the case of Elite Publishers whose Industrial Dispute is pending. But the Court is riot happy, if it contains the material, which is manifestly breach of the law by certain utterances of offensive nature.

59. However, the arguments form part of the record of the Court.

60. Regarding the wages, the Labour Court has to maintain equity that during the period of strike, if it is legal, are they entitled to full wages, for they have not worked and by their own conduct, did not follow the prohibitory order to shorten the strike and to avoid economic loss. What can be measured that on one hand, they want demands of financial entitlements and on the other hand they did not follow the restraint order. In view of that equity to be maintained their wages will not be affected but will be considered as reasonable by the employer. Such aspect in section 34 the Court has discussed resulting out the main contention whether the strike was legal or illegal. The regard will be had to the financial position of the company in the context of the balance sheet.

61. The application under section 34, I.R.O., filed by the employer is disposed of as dismissed. But however, it is also the Court's desire, which Court also feels, most appropriate, that to fulfil the judicial ambitions, those parties still have the time, to have the dialogue of conciliation, in the spirit, between themselves, of flexibility and adjustment, for, it shortens the litigation and most beneficial, in the working of the Industrial Establishment, to augment the progress and prosperity, in which, the workers if find the better return it can maintain their economic living. Likewise the Industrial Dispute is pending and will also be completed for adjudication through their joint efforts, where the law will take its course. This is‑particularly responsibility of the trade union President and the General Secretary and the employer in person as well. If conciliation is done, it will end the problem which itself is the manifestation of justice. Justice also needs conciliation, mediation, as the part of its faculty of human perception, in relation, to the dispute, which binds them in the warmth, and the softness and the stability of the industry. This is what the Labour Court desires that the rational approach is to be maintained, which minimize difficulty, and its further end to promote harmony and relationship, what the Ordinance known as Industrial Relations Ordinance also emphasizes to resolve the disputes amicably.

62. However; on the point of law regarding legality and justification of strike the Labour Court has given its opinion with this observation, that the counciliator had also to follow next step of persuasion, to the party to refer the matter to arbitration, which conciliator was under the concept mistakenly that conciliation had not failed and not extended, to invoke the jurisdiction of arbitration. By the time the matter came to the Court, and the Court has given declaration that the conciliation shall be deemed to have failed on 2‑4‑1987 and the notice of strike also expired. This aspect of arbitration therefore was overlooked but for the reasons, the Court has advanced what the Labour Court understands the effect of subsection (5) of section 30 I.R.O., in the given facts subsection (5) after the conciliator, had ended its performance, in the authority vested in him expressly in subsection (1), (2), (3) and (4), this subsection (5) regarding mutual extension was optional. It 'is, therefore, during the course of decision of section 34, the Court has taken up this obligation that still parties, irrespective of the adjudication, before the Labour Court, can seek the understanding, else the Industrial Dispute, is already possessed, of within the jurisdiction bf section 32 and shall be announced, what the parties shall place their point of view before the Labour Court for the purpose of Award or any order as the case may be. This is also to emphasize that in view of the aspect, what Mr. Shafique Qureshi has touched regarding sentiments, the Labour Court will advise both the union and the employer to exercise every possible restraint, when sensitive matter of the Industrial Dispute is pending. However, both the counsel have discharged their obligations, by placing the case in the best possible manner and placing the case law on the important questions, to assist the Labour Court, in the administration of justice. Their point of view was followed. What the Court has found just and proper, the order is announced accordingly. With this clarification that wrong interpretation may not be made technicality on the wordings that the failure to refer the matter to arbitration means the arbitration stage m the Ordinance. If that stage has passed and the matter has come to the Court of law, the further attempt of conciliation, as a desire of the Court be between themselves, when the matter is already pending. Likewise the word, `wages' is understood that it should be reasonable, during the period of strike. Reasonable means, taking into consideration the period upto the date of prohibition of strike. Likewise the cassette produced m the Court shall not be part of the dispute but general observations, referred what has been stated by the party,, for the Court of law, to take judicial note of the cassette, and therefore, .once it has come in the Court of law it remains, part of the record. Similarly the word breach of law if it has been referred is in the context of those uttered references, if in the cassette.

63. Application is dismissed. A.E./1207/Lb. S. Application dismissed.