1978 PLC 298 (PLP)

‑‑‑ S. 32‑(1‑A) read with Ss. 26 (2), (3) & 43‑Industrial dispute not raised en prescribed manner‑To be deemed as non‑existent‑Strike notice served one day earlier than prescribed‑Dispute raised without compliance of mandatory provisions of S. 26 (2), (3)‑Held, not legally maintainable. Rafhan Maize Products Company Limited, Lyallpur v. Employee Union 1975 P L C 638 and Steel Window Manufactures v. Steels Workers Union P L J 1974 Tr. C. (Lah.) 452 ref. JUDGMENT IGI Staff Union hereinafter called the petitioner‑Union has filed under consideration petition under section 32‑A of the Industrial Relations Ordi nance, 1969, against the Management of I. G. I, Company of Pakistan Limited seeking adjudication in respect of charter of demands 3rd October 1973 (Exh. R/4). It is noteworthy that no justification for demands is forth, coming from the records of the case.

2. The respondent resisted that dispute vehemently and opposed all to demands raised by the petitioner‑Union.

3. During the course of evidence the petitioner‑Union was allowed at their request to adduce additional evidence. At that state the respondent raised the following legal objections. These objections being of legal nature were allowed to be raised. Objections are as follows: (i) That no valid Demand Notice was served upon the Management by the petitioner‑Union in the present case. The Union had previously served a charter of demands on 3rd of July 1973 regarding the same demands and subsequently served a strike notice and proceeded on strike on 17th of August 1973 which strike continued up to 13th August 1973 but was thereafter called off by the Union itself. There after the second Demand Notice was served by the Union on the Management on 3rd October 1973 regarding the same demands which formed the basis of this dispute and is invalid, void and cannot as such form the basis of any proceeding as industrial dispute. (ii) That without prejudice to the above the strike Notice dated 13th October 1973 is invalid as it was premature and did not fulfil the requirements of section 26 of the Industrial Relations Ordinance 1969, as it stood at that time. No conciliation proceedings could therefore, be started on‑ its basis nor it could form a ground for an application under section 32‑A. (iii) That without prejudice to the above the strike notice dated 13th October, 1973 is also invalid and incompetent as the period of strike notice is less than 14 days. The conciliation proceedings and the present applications are also therefore not competent. (iv) That the present application is barred by principle of constructive res Judicata. The demands which could and ought to have been brought before the Court on the previous occasions but were given up cannot be brought up again in an under‑hand manner to defeat the purpose or abuse the process of law.

4. Reply to these preliminary objections was duly obtained from the petitioner‑Union and it was decided that these objections of legal nature could be disposed of while deciding the case.

5. In this case this is a common ground between the parties that previously in pursuance of the Demand Notice dated 3rd July. 1973 the petitioner‑Union went on strike but the strike was called off on 13th August 1973. Subsequently the petitioner‑Union served a second Demand Notice dated 3rd October 1973 on the Management copy whereof is Exh. R/4 as has been stated by Mr. Kazim Azad President of the Union in his supplementary statement Exh R/4/t is a copy of the charter of demands. Mr. Kazim Azad has disclosed that on 13th October, 1973, Notice of Strike was served on the Management. Copy of the Notice of Strike is Exh. R/5. No charter of demand is enclosed with this Notice of Strike and this Notice of Strike is not endorsed to the Conciliator or to any other functionaries of the Labour Department. No evidence has been led by the petitioner‑Union to show as to on what date Notice of demand dated 3rd October. 1973 on which the present Industrial Dispute is based was actually received by the Management.

6. It is provided in subsection (2) of section 26 of the Industrial Relations Ordinance, 1969 that in a Notice of Demand, 10 days period for bilateral negotiations for reaching a settlement shall be given by one party to the other. Subsection (3) of section 26 ibid further provides that if no settlement is arrived at as a result o" bilateral negotiations the employer or C .B A., as the case may be within 7 days from the end of the period referred to in subsection (2) shall serve on the other party to the dispute a Notice of lock‑out or strike, as the case may, in accordance with the provisions of this Ordinance.

7. In the circumstances of the present case, as already stated, Notice of Demand was given on 3rd October 1973. 10 days period for bilateral negotiations provided in subsection (2) of section 26 expired on 13th October 1973. Strike Notice should have been given within 7 days of the expiry of 13th October 1973 but in this case the Strike Notice Exh. R/5 has been given on 13th October 1973. It is thus premature by one day. The Strike Notice as mentioned above is only addressed to the Management. Its copies have not been endorsed to the Conciliator or to the other functionaries of the Labour Department. The Strike Notice is not accompanied by the charter of demands either.

8. Section 43 of the Industrial Relations Ordinance, 1969 clearly provides that no Industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner by a Collective, Bargaining Agent or an employer. The expression "prescribed" according to section (2)(xix) means prescribed by Rules.

9. Rule 75 of the Punjab Industrial Relations Rules, 1973 provides that a Notice of Strike served under subsection (3) of section 26 shall he in Form "U".

10. I have very carefully compared the Notice of Strike Exh. R/5 givers in this case with Form "U" and the result of the comparison shows that this Notice, of Strike is not at all in Form "U". It differs in all material respects from the prescribed Form. It does not contain a certificate to the effect that the dispute was represented to the employer on such and such date for direct negotiations and settlement. Its copies have also not been endorsed to the Conciliator, Director I about Welfare Deputy Commissioner and the Presiding Officer of the Labour Court concerned, as provided in Form "U". This Notice is not accompanied by Annexure i. e. charter of demands. All this shows that the Notice of Strike is not at all in the prescribed Form.

11. It transpires from what has been said above, that the Industrial Dispute consideration case has not been raised in the prescribed manner and therefore it is to be deemed to be non‑existent as provided under section 43 of the Industrial Relations Ordinance, 1969. It further appears that the Strike Notice has been one day earlier and therefore not legally maintainable. In Rafhan Maize Products Company Limited, Lyallpur v. Employees' Union (1975 P L C 638) the learned Labour Appellate Tribunal Punjab has been pleased to hold that provisions of section 26 of the Industrial Relations Ordinance, 1969 were mandatory and not directory and that a Strike Notice given one day earlier than the expiry of 10 days period allowed in sec tion 26 (2) for bilateral negotiations was invalid and therefore an application under section 32 (1‑A) based upon such Notice was not legally maintainable. In Steel Window Manufacturers v. Steels Workers Union (P L 11974 Tr. C (Lab.) 452) The Sind Labour Appellate Tribunal has held that compliance with provisions of subsections (2) and (3) of section 26 was mandatory and an application under section 32 (1‑A) without complying with these provisions was not maintainable.

12. In the light of what has been said above we conclude that the present industrial dispute is not legally maintainable as not having been raised in the prescribed manner and also on account of non‑compliance of mandatory provisions of subsections (2) and (3) of section 26 of the industrial Relations Ordinance, 1969. We therefore need not record our findings on the merit of the demands involved in the dispute. Application is accordingly dismissed.