1976 PLP 137 (PLC)

Date of hearing: 22nd December 1975. This is an appeal against the award dated 6‑11‑1975 of Punjab Labour Court No. 1, Lahore dismissing a petition under section 32 (1‑A) of Industrial Relations Ordinance, 1969, filed by International General Insurance Staff Union, appellant.

2. The appellant filed a petition under section 32 (1‑A) of Industrial Relations Ordinance, 1969 against the Management of International General Insurance Company of Pakistan Limited, respondent seeking adjudication of demands mentioned therein. The learned Labour Court dismissed the petition on the ground that the Industrial Dispute was not legally maintain able 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 Industrial Relations Ordinance, 1969.

3. Aggrieved by the above the appellant has preferred this appeal.

4. The respondent raised the following legal objections: (1) That no valid demand notice was served upon the Management by the Union. The Union had previously served a charter of demands on 3‑7‑1973 regarding the same demands and subsequently served a strike notice and proceeded on strike on 7‑8‑1973, which strike continued upto 13‑8‑1973 but was thereafter called off by the Union itself. Thereafter the second demand notice was served by the Union on the Management on 3‑10‑1973 regarding the same demands which formed the bases of the dispute and was invalid, void and could not as such form the basis of any proceedings as industrial dispute. (2) That without prejudice to the above the strike notice dated 13‑10‑1973 was invalid as it was premature and did not fulfil the requirement of section 26 of Industrial Relations Ordinance, 1969 as it stood at that time. It was also alleged that the strike notice was not in the pro scribed form as is laid down under rule 75 of the Punjab Industrial Relations Rules, 1973, therefore no conciliation proceedings could be started on its basis nor it could form a ground for a petition under section 32 (1‑A) of the Ordinance. (3) That without prejudice to the above, the strike notice dated 13‑10‑1973 was also invalid and incompetent as the period of strike notice was less than 14 days. The conciliation proceedings and the present petition were also therefore not competent. (4) That the present application was barred by principles of constructive res judicata. The demands which could and ought to have been brought before the Court on the previous occasion bait were given up could not be brought up again in any under‑hand manner to defeat the purpose or abuse the process of law.

5. The learned counsel for the appellant contended that the afore mentioned legal objections could not be considered, as they did not form part of the original reply statement filed by the respondent.

6. From the perusal of the record I find that on 17‑5‑1975 arguments for additional evidence by the Union were heard and the additional evidence was allowed. The respondent was also allowed to produce evidence in rebuttal. The respondent on that very day raised the afore‑mentioned legal objections. On 9‑6‑1975 the Union filed the reply denying the legal objec tions. On that day additional evidence was recorded but no evidence was led on the legal objections. After that further dates for additional evidence of the Union were given on 3‑7‑1975 and 23‑7‑1975 but the Union did not produce any additional evidence.

7. Under these circumstances I find no force in the contention of the learned counsel for the appellant that the appellant was taken by surprise when the respondent raised the legal objections.

8. Legal Objections Nos. 1 and 4.‑In this connection it will be feasible to reproduce section 36(2) of Industrial Relations Ordinance, 1969, which reads as follows A Labour Court shall, for the purpose of adjudicating and determining any industrial dispute, be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908) including the powers of (a) Enforcing the attendance of any person and examining him on oath, (b) Compelling the production of documents and material objects, and (c) Issuing commissions for the examination of witnesses or documents .

9. From the above it is clear that a Labour Court for the purpose of adjudication and determining an Industrial Dispute is deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure. Therefore Order II rule 2(2) of Civil Procedure Code will be applicable. It reads as follows: Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Therefore the employees when they make certain demands on the employer must include all their claims which they are entitled to make at the time in their strike notice. Where they omit to include certain demands in the strike notice or intentionally relinquish them, the employees should not afterwards in respect of the demands so omitted or relinquished be entitled to serve a fresh strike notice. If this principle is not observed, there will never be any industrial peace, because the employees would go on raising the same demands one by one which they had omitted or relinquished. There is, however, an exception to the above principle, and that is that demands regarding financial implications can be raised in spite of the fact that they were covered by or omitted from the settlement or award if it is established that the conditions and circumstances have materially changed, but if the circumstances remain the same, then both in equity and in law the employees should not be allowed to agitate those issues or raise fresh issues which were available to them at the time when they raised the issues but they intentionally omitted to do so or relinquished them.

10. In the present case the appellant‑Union had previously served demand notice dated 3‑7‑1973 and strike notice and subsequently proceeded on strike on 7‑8‑1973 which continued uptil 13‑8‑1973 but was thereafter called off by the union itself, which meant that the Union had relinquished those demands. After that the Union again served a demand notice on the Management on 3‑10‑1973 regarding the same demands, which formed the basis of the present Industrial Dispute. I have gone through both the demand notices and find that the demands to both these notices are the same with the exception that in the second demand notice a demand was made for the release of salary for the strike period commencing from 7‑8‑1973 to 13‑8‑1975. The fact that the Union had called off the strike shows that it had relinquished those demands. Therefore those demands could not have formed the basis of the Industrial Dispute in the second demand notice and as such the said demand notice was invalid. The legal objections are accordingly upheld.

11. Objection No. 2.‑According to subsection (2) of section 26 of Indus trial Relations Ordinance in a demand notice 10 days' period for bilateral nego tiations for reaching a settlement have to be given by one party to the other. According to subsection (3) of section 26 of the Ordinance, if no settlement has been arrived at between the employer and the Collective Bargaining Agent, an employer or the Collective Bargaining Agent may within 7 days from the end of the period referred to in subsection (2), serve on the other party to the dispute a notice of lock‑out or strike, as the case may be in accordance with the provisions of this Ordinance. As already mentioned above demand notice Exh. R‑4 was given on 3‑10‑1973 and strike nonce Exb. R‑5 was served on the Management on 13‑10‑1973. Ten days period required for bilateral negotiations expired on 13‑10‑1973. Therefore the strike notice should have been given within 7 days after the expiry of 10 days. In the present case strike notice was issued on 13‑10‑1973, which shows that it was premature and as such was invalid. Provisions of section 26 are mandatory. Under all the Ordinances or enactments prior to Industrial Relations Ordinance the Workers had no right to go on strike. In order that the Union may resort to strike it must conform to various ingredients of section 26 of the Ordinance. One of the ingredients is that when the Union or the Collective Bargaining Agent wants to serve a strike notice it must do so within 7 days after the expiry of 10 days allowed for bilateral negotiations. I have already expressed same view in the cases, Ejaz Brothers Canvas Industries Workers' Union v l, Management (1) and Rafhan Maize Products Co. Ltd., Lyallpur v. Employee; Union (2).

12. According to section 43 of Industrial Relations Ordinance 196;), no Industrial Dispute shall be deemed to exit unless it has been raised in the prescribed manner by the Collective Bargaining Agent or an employer. According to section 2(xix) of the Ordinance the expression Prescribed means prescribed by rules. Under rule 75 of the Punjab Industrial Relations Rules, 1973, strike notice has to be given in Form U , wherein it has been mentioned that the copies of the strike notice have to be sent to (P L J 1975 Tr. C. (Lab.) 246) The Conciliator of the area concerned, (1975 P L C 638) The Director of Labour Welfare, (3) The Deputy Commissioner, (4) The Presiding Officer of Labour Court concerned. From the perusal of the strike notice Exh. R‑5 I find that there is no mention that copies were sent to the aforementioned persons. Thus it is clear that the Industrial Dispute has not been raised in the prescribed manner and therefore it is deemed to be non‑existent, as is laid down under section 43 of the Ordinance. In the result these objections are upheld.

13. Legal Objection No. 3.‑According to section 28 of the Ordinance the period of lock out or strike given under subsection (3) of section 261shall be 14 days. From the perusal of strike notice Exh. R‑5 I find that the period of strike is less than 14 days. On this ground also the strike notice was invalid. The legal objection is accordingly upheld.

14. In the result I find no merit in this appeal, which is hereby dismissed.