1973 PLP 376 (PLC)

It Is an admitted position that in the instant case a report under section 46-A(I) was submitted by an Assistant Director, Labour Welfare, to the Third Labour Court, Karachi. The controversy, however, is regarding the giving of notice under subsection (2) of section 46-A. The contention of Mr. Fazeel, the - learned counsel for the petitioner, Is that the scheme of the Ordinance, under which the system of Collective Bargaining Agent was adopted in the Country, is that the Collective Bargaining Agent enjoys a dominant position qua the other Trade Unions and further since ft alone Is entitled, as provided In section 22(12) (b), to represent all or any of the workers in any proceedings. in those establishments or Industries where there is a Collective Bargaining Agent, notice under section 46-A (2) to it alone is required, and only In those establishments or Industries where there Is no Collective Bargaining Agent, Is notice required to be given to any other Trade Union concerned with tine dispute. Mr. All Amjad and Mr. I3ameed Siddiqui, who appear for respondents Nos. 3 to 198, have on the other hand contended that the key-words in section 46-A (2) are "concerned with a dispute, which has resulted in a strike or lock-out, such Trade Union must be given notice, even if there be a Collective Bargaining Agent. In order to appreciate the above contentions, It would appropriate not only to refer to the other relevant provisions of, the Ordinance, but also briefly survey the history of legislation in Pakistan to regard to the functions and rights of 'Trade Unions of workers, their power to start a strike and their right. to represent workers in industrial disputes. At the tinge of the establishment of Pakistan, the two laws, which held the field in respect of the above matters, were the Trade Unions Act, 1926, and the Industrial Disputes Act, 1941. The Trade Unions Act was enacted to provide for the registra tion of Trade Unions, to specify their function, privileges and powers and other incidental matters. Chapter III of the said Act provided for the rights- and liabilities of registered Trade Unions. The Act neither specifically conferred on the Trail Unions, whether registered or unregistered, either the power to represent workers in any proceedings or to resort to authorise a strike. -However, section 15 of the Act specified the objects on which the general funds of a registered Trade Union could be spent. Clauses (c), (d) and (e) of the said section authorised expenditure from such funds on the prosecution or defence of any legal proceedings to which such Union or a member thereof was a party, if the same were taken for the purpose of scouring or protecting the rights of the Trade Union or any rights arising out of the relations of a member with his employer; the conduct of a trade dispute on behalf of the Trade Union or any member thereof and the payment or compensation to members for Ions arising out of a trade dispute. It may also be mentioned that In 1927, the Bombay Trade unions Regulations were issued under the provisions of sec tion 29 of the Act and after the coming into force of the Govern ment of India Act.1935, tire Central Government, in 1938, issued the central Trade Unions Regulations to respect of the Trade Unions whose objects extended beyond one Province. The Bombay Trade 1!rsions Regulations were subsequently re-named 9n 1951, so far as the Province of Sind was concerned, as the. Sind Trade Unions Regulations, under the provisions of section 3 o!' Sired Act 1 of 1951. There is, however; nothing in either thin Sind or the Central Regulation, which would be of any assistance in determining tile 1Qqueq arising out of the present petition. The Industrial Disputed Act, 1947, which came into f orce l-4-1947, provided for the Investigation and settlement of Industrial disputes by or through Works Committees, Concilia tion Courts Boards of Conciliation, Courts of Inquiry and Industrial Tribunals, which were required to be constituted, appointed or established. Section 24(1) of the Act declared which types of strikes and look-outs-were to be deemed illegal, while section 36 of the Act entitled a workman, who was a parry' to as industrial dispute, to be represented in any pro ceedings under the Act by an officer of a registered Trade Union. Under section 38 of the above Act, the Industrial Disputes Rules, 1947 were framed by the Central as well as Provincial Governments, including the Government of Sind. The two sets of rules were practically identical, except that the Central Rules were applicable, only to Industries, businesses and under takings carried on by or order the authority of the Central Government or by the Federal Railway and to major ports, mines and oil fields while the Sind Rules were applicable to all other industries, businesses and undertakings in the Province of Sind. The Central Rules were subsequently extended on 6-10-1956 to Karachi, to the exclusion of the Sind Rules. In view of the fact that by then Karachi was the Capital of the Federation and was being directly administered by the Central Government. Rules 3, 4 and 6 of the said rules are relevant. Rule 3 required that an application for the reference of an industrial dispute to a Board, Court or Tribunal was to be made in the prescribed form, while rule 4 provided that such an application, and the statement accompanying it, in the case of workmen, were to be signed either by the President and Secretary, of a Registered Trade Union of the workmen or by five duly authorised representatives of the workmen. Rule 6 provided that notice to nominate their representatives on Board of Conciliation shall be sent by Government, In the case of workmen who are members of a registered Trade Union, President or the Secretary of the Trade Union. Reference may also be made to rule 52, which provided that the notice of strike to be given by employees in a public utility service was to be in the prescribed form. The form indicates that It was to be signed by the Secretary of the Union or the representatives of the employees elected at a meeting. The Industrial Disputes Act, 1947, was repealed and replaced by the Industrial Disputes Ordinance, 1959, which was pro mulgated on 21st October 1959. Section 34(1) of the Ordinance, like section 36(1) of its predecessor Act, entitled a workman, who was a party to a dispute, to be represented in any proceedings under tile Ordinance by an Officer of a Registered Trade Union. In 1960, the Central Government framed the Industrial Disputes (Central) Rules, 196(), superseding the 1938 Rules. Forms A, D and I in the Schedule to the 1960 Rules are worthy of note. Form A prescribed the form in which an application under rule 3 was to be given by the employees of a non-public utility service for intervention of the Conciliation Officer o Form D was the form in which the workmen were to request the Industrial Court under rule 9 to adjudicate upon a dispute; wife Form I was the form in which notice of -strike under rule 52 was to be given by the employees in a public utility service. All these firms indicate that in the case bf workmen, they were to be signed either' by the Secretary of the Union or the representatives of the employees. In the same year as the above rules were framed, the Trade Unions Act 1926 was substantially modified, and Chapter III-E was added thereto by Ordinance KIV of 1960, providing for the recognition of registered Trade Unions by the employers on the fulfilment of certain conditions by such Trade Union. One of the rights conferred by the newly added section 28-D on the recognised Trade Unions was that their executive were entitled to negotiable with the employer in respect of matters connected with the employment, unemployment, the terms of employment, and the conditions of work of all or any of Its members. The importance of t hit above provisions lies in the fact that whereas under the Industrial Disputes Ordinance, the workmen had the right to be represented by the Officers of their Registered Trade Union, if they so chose, this provision conferred upon the executive of a recognized Trade Union the right to negotiate with the employer on behalf of the members of the Union. The principle of representation in Labour matters was they carried a substantial step forward. In September 1965 East Pakistan enacted the East Pakistanis Trade Unions and the East Pakistan Labour Disputes Act, replacing the Trade Unions Act, 1926 and the industrial Disputes Ordinance, 1959, respectively. West Pakistan followed suit and on 8th March 1968 promulgated the West Pakistan Trade Unions Ordinance and the West Pakistan Industrial Disputes Ordinance. In both the East and West Pakistan Trade Union Laws the system of recognized Trade Union, with the right to its executive to negotiate with the employer In respect of matters connected with the employment and conditions of work, was retained. The difference between the two laws on this point was whereas under the East Pakistan Act, the recognized Trade Union was entitled to negotiate In respect of the terms and conditions of work of all or any of the workers employed in the establish ment or Industry, under the West Pakistan Ordinance, it was entitled to do so only In respect of its members. The recognition of a Trade Union under both the laws had to be by the employer, but if a Trade Union, which fulfilled the conditions for and wars entitled to recognition, was refused recognition by the employer, the Trade Union could approach the Registrar, who was given the power to direct the employer to recognise It. So far as the two Industrial Labour disputes laws are concerned, the provision entitling a workman, who was a party to an industrial dispute, to be represented by an Officer of a Trade Union was retained. Both these laws also contained provisions stating which strikes and lock-outs would be deemed to be illegal, and prescribed penalties for commencing, continuing or acting In furtherance of an illegal strike. Finally, on 13th November 1969, the President promulgated the Industrial Relations Ordinance, 1969, which repealed the two Batas and West Pakistan Trade Union Laws, the East Pakistan Labour Disputes Act, 1965, and the West Pakistan Industrial Disputes Ordinance, 1968. The new Ordinance was substantially modified by Ordinances Nos. XIX of 1970 and IX of 1972 and Acts Nos. V of 1972 and XXIX of 1973. The Ordinance did away with the system of recognised Trade Unions, with its inherent defect of depending upon the employer for -recognition and Introduced the concept of "Collective Bargaining Agent", which In the case of an establishment or group of establishment having only one registered - Trade Union was to be that Union, provided that it had as its members not less than one-third of the total number of workmen employed to such establishment or group of establishments and in case of there being more than one registered Trade Union in an establishment or group of establishments, which were competing for becoming the Collective Bargaining Agent, the Trade Union receiving the highest number of voter of all the workmen in such establishment or group of establishments in a secret poll conducted for the purpose by the Registrar of Trade Unions, or an officer authorised by him in this behalf, was w to declared the Collective Bargaining Agent. 'The rights of the Collective Bargaining Agent arc detailed in subsection (121 of section 22 of the Ordinance, which reads as follows:- "(121 The Collective Bargaining Agent In relation to an establishment or group of establishments shall be entitled to- (a) Undertake collective bargaining with the employer or employees on matters connected with employment, Peon-employ ment, the term of employment or the conditions of work; (b) Represent all or any of the workman in, any proceedings (c) give notice of, and declare, a strike in accordance with the provision of this Ordinance; and (d) nominate representative of workmen on the Hoard of Trustees of any welfare institutions or Provident Feuds, and of the workers' participation Fund, established under the Companies Profits (Workers' Participation) Act, 1968." In addition to the above tights, the Collective Bargaining Agent has been given other privileges and functions under other provisions of the Ordinance Section 23 requires the employer, at the request of V a Collective Bargaining Agent, to deduct from the wages of the workmen, who arc members of a Trade Union, specified sums, with the approval of each workman, as their subscription to the funds of the Trade Union. Section 2.j-A has given the Collective Bargaining Agent the right to nominate shop stewards. Similarly, the representatives of the workmen, who are to participate in the management of a factory under section 23-B of the Ordinance as also the workmen's representa tives on the Works Council constituted tinder section 24 are to be nominated by the Collective Bargaining Agent. Sections 26 and 29 to 32 are also relevant for the purposes of the present petition. Section 26 has empowered the Collective Bargaining Agent If it finds that an industrial dispute has arisen or is likely to arise, to communicate its views to the Works Council, which is required to try to settle the dispute, and in case no settlement is reached, the Collective. Bargaining Agent can serve a notice of strike, provided that a majority of the workers in the establishment or industry bas voted in favour of going oil strike. Section 29 requires a party, serving a notice of strike or lock-out, to simultaneously deliver a copy of such notice to tile Conciliator. Section 30 deals with the proceedings before the Conciliator Ira which the parties to the dispute arc required to be represented by parsons nominated by them and authorised to negotiate and enter Into an agreement binding on the parties, and In case of failure of conciliation, either the parties may refer the dispute to an Arbitrator under section 31, whose award shall be binding on the workmen or the employer may go on strike, or declare a lock-out, as tee case may be, under section

32. The other material provisions In the Ordinance, and on which Mr. Fazeel has specialty railed, are those contained in sections 34, 39, 43, 46(1)(6) and

49. Section 34, as it was originally enacted, authorised the Collective Bargaining Agent as well as a workman to apply to the Labour Court for the enforcement of any right guaranteed or secured to it or him by or under any law, award or settlement. However, the words or workman" have been deleted by Act XXIX of 1973, which was published In the official Gazette on 9th February 1973, with the result that under the said section only the Collective Bargaining Agent can now approach the Labour Court from the side of workers. Section 39 provides that a settlement, an award of an arbitrator; an award or decision of a Labour Court under section 37 or a decision of the Tribunal under section 38, in cases where the Collective Bargaining Agent is a party to the dispute, shall not only be binding on all the workmen employed in the establishment or Industry to which the dispute relates on the date on which the dispute first arose, but also on those workmen who are employed therein after that date. Section 43 provides that an industrial dispute shall not be deemed to exist unless it is raised 1n the prescribed manner by the Collective Bargaining Agent or an employer. This provision apparently seems to be at variance with tile provision In section 2691) empowering the Collective Bargaining Agent, if its finds that an industrial dispute has arisen, to communicate its views to the Works Council. Section 46(1) specifies the types or classes of strikes and lock-outs, which are deemed to be Illegal. Clause (b) of the said section declares a strike or lock-out to be illegal if it is commenced or continued in consequence of an industrial dispute raised In a .r, manner other loan that provided in section

43. Section 49, which deals with representation of parties, provides that a workman, who is a party to be an industrial dispute, shall be entitled to be represented in any proceeding under the Ordinance by an Officer of a Collective Bargaining Agent. The provision relating to the representation of workmen by officers of any other registered Trade Union contained in the earlier enactments was thus done away with. The contention of Mr. Fazeel is that in view of the prey-eminent position accorded under the Ordinance to the Collective Bargaining Agent via-a-via the other Trade Unions, which have been relegated completely to the background, taken together with the facts that it alone can raise an industrial dispute, give notice of strike represent all or any of the workmen in an industrial dispute, and a settlement, award or decision, to which it is a party, binds all the workmen, the Collective Bargaining Agent, where there is one, is alone the representative of the workmen In all matters and proceedings under the Ordinance, and in its presence notice to or presence of any other Trade Union of Workmen Is neither required nor envisaged by the Ordinance. The argument in our opinion is not sound. A complete denudation of the right and privilege to represent their members in any trade or labour, dispute enjoyed by the registered Trade Unions, which to effect is what Mr. Fazeel has invited us to hold, would imply a major departure in the law as in force immediately before the promulgation of the Ordinance. Such- a major change in legislative Invent and policy is not to be readily inferred and can only be attributed to the Legislature if the language of the statute to that behalf is clear and explicit, which as trill be presently shown is not the case. According to Maxwell: "There are certain objects which the Legislature is presumed not to Intend, and a construction which leads to any one of them is to be avoided . . . . . . . . . . . . . One of these presumptions is that the Legislature does not intend to mate any substantial alteration In the -law beyond what it explicity declares, either in express terms or by clear implication, or, in other words, beyond the immediate scope and object of the statute. In all general matters outside those limits the law remains undisturbed. It is in the last degree improbable that the legislative would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness, and to give any such effect to general words, simply because they have a meaning that would lead thereto when used In either their wildest, their usual, or their natural sense, would be to give them a meaning other than that which was actually intended. General words and phrases, therefore, however wide and comprehensive they may be in their literal sense, must, usually, be construed as being limited to the actual objects of the Act". Section 25-A of the Ordinance, which was added by Ordinance No. IX of 1972 gives a right to a workman to bring his individual grievance before a Junior Labour Court either directly or through his Trade Union. It was obviously because of the conferment of this right that section 34 was amended anti the provision therein for an Individual workman to approach the Labour Court was omitted by Act XXIX of 1973: The Bargaining Agent, where there 19 one, is their sole representative, to the exclusion of other Trade Unions. We may now examine the provisions of section 30 of the Ordinance, and as Mr. Ali Amjad has strongly relied upon the proviso to subsection (2) thereof, subsections (1) and (2) of the said section are repro6uced hereunder:- "

30. Proceedings before Conciliator.-{1) The Conciliator shall, as soon as possible, call a meeting of the parties to the dispute for the purpose of bringing about a settlement. (2) The parties to the dispute shall be represented before the Conciliator by persons nominated by them and authorised to negotiate and enter into an agreement binding on the parties; Provided that if, in the opinion of the Conciliator, the presence of the employer or any Officer of the Trade Union connected with the dispute la necessary in a meeting called by him, he shall give notice in writing requiring the employer or such officer to appear in person before him at the place, date and time, specified In the notice and it shall be the duty of the employer or the officer of Trade Union to comply with the notice. It could no doubt be contended, and the contention would certainly have force, that not only the above proviso gives no right to a Trade Union, other than a Collective 13argainin$ Agent, to take part in any conciliation proceedings, but further only power is given to the Conciliator, if he so considers necessary, to require the presence at a meeting caked by him of a specified Officer of a Trade Union, and even if the pourer Is exercised, it is not the Trade Union as such which bakes part In the proceedings but only the specified officer of tire Union and that too for a limited purpose, yet the provision for the participation by an officer of a Trade Union, other than the Collective Bargaining Agent. In any such proceedings would seems to indicate an intention on the part of the Legislature a not, to completely exclude such Trade Unions from proceedings relating to disputes involving all workers or any sections of them. The basis for such a provision appears to be statutory recognition of the fart that in the absence of the representatives of Trade Unions connected with the dispute, which may command the allegiance of substantial number or even a majority of workers, a settlement may not be possible. It is significant that both the above proviso and section 46-A were added to the Ordinance by Act XXIX of 1973 The fact that a Collective Bargaining Agent alone is authorised uncles the Ordinance to give notice of a strike of commence a legal strike is of no consequence, as section 46-A g deals with illegal strikes, which ten be w.1 often are, started by other Trade Unions and the Collective Bargaining Agent may nut only have no hand ire the staging of the strike but may be opposed to it, as In the instant case. It Is in this context the words "concerned with the dispute" used In section 46-A (1) assume special significance. The Trade Union initiating, or whose use members are staging, such a strike would ' obviously be tire 'trade Union concerned with the strike and not the Collective bargaining Agent. A notice In such cases only to the Collective Bargaining Agent, without bringing into the picture the Trade Union concerned in or responsible far the strike would obviously not be fruitful or conducive to ending the strike, which is the real object of the section. Absence of notice to such Union would also be unfair both to the Union and its member, for the Union would thereby be deprived of an opportunity of showing that in fact there is no strike an its members may not come to know of the orders of the Court ordering them to resume work and thereby become liable to dismissal under subsection (7). If the intention of tire Legislature had Dean to give notice under subsection (2) to a Trade Union concerned with the strike only in these cases where there was no Collective Bargaining Agent in the establishment or industry in which the illegal strike was commenced or continued, this intention would have been made manifest by clear words to that effect. In this connection reference to section 23-A, 23-B and 24 would be pertinent. These a sections specifically provide that in those establishments where there is a Collective Bargaining Agent, the shop stewards the representatives of the workmen required to participate in the management of the factory and the workers representatives on the Works Council shall be nominated by the Collective Bargaining Agent. No such words have been used in subsection (2) of section 46-A. On the contrary, the use of the words concerned with the dispute" which Mr. Fazeel frankly conceded qualify and apply to both the Collective Bargaining Agent and the Registered Trade Union manifest the intention of the Legislature that where the Collective Bargaining Agent is concerned with the dispute it may be noted that the Words used is "dispute" and not the expression "industrial dispute;" which has been defined in section 2(xiii) of the Ordinance-notice under subsection (2) is required to be given to it and in those cases where it is not concerned with the dispute, the notice must go to such Trace Union. Of course there way be cases where both tile Collective Bargaining Agent as well as another registered Trade Union may be concerned with a strike. 1n such oases, the proper course would appear to be to give notice to both Find to construe "or" in subsection (2) as "and". It appears that not only Lo novice wits given under sub section. (2) of section 46-A to the Star 'Textile Mills Employees' Union and the Star Textile Mills Azad Labour Union, of which most, if not II, of contesting respondents are the members, but further, despite the averment made in para. 2 of the petition, apparently no notice was even given to the Collective; Bargaining Agent. No copy of such notice has been flied nor has any officer or representative of the Collective Bargaining Agent filed affidavit before this Court or the Labour Court admitting the receipt of such notice. In his statement made before the Labour Court Mr. Yakub, the Vice-President of the Collective Bargaining Agent, has not mentions receipt of any such notice. A copy of the notice issued by the Assistant Director, Labour Welfare, has been filed by the petitioner is Annexure 2 to the petition. It shown ta4t this notice was issued only to the petitioner and a copy thereof was endorsed to the Labour Court. If a notice had been issued to the Collective Bargaining Agent, such endorsement should have appeared on the copy of the notice sent to the petitioner. Since the giving of notice under subsection (2) of section 46-,A is one of the two essential requirements for the taking by the Labour Court of any proceedings and passing orders under section 46-A, and as this requirement has not been complied' with, its orders dated 5th and 10th April directing the ,corkers` to call off the strike would be invalid. Even if it be conceded that the Collective Bargaining Agent was served with a notice under` subsection (2), it would make no material difference, as notice had to be issued to the registered Trade Unions concerned, which in the instant case were the Star Textitle Mills Employees' Union and the Star Textitle Mills Azad Labour Union, of which the persons staging the strike were members. It is claimed on behalf of the petitioner that though no notice under subsection (2) was given to the above two Unions, the various orders of the Labour Court were pasted on the main gate and Ring Section of the Mill and even given publicity through the medium of the press and hence must have come to the knowledge of the striking workmen. Even if this claim be conceded then also it would not cure the defect of want of notice under subsection (2) to the Trade Unions concerned in the dispute. Since the action of the Labour Court initiating proceedings under section 46-A and requiring the worker to call off the strike, without the essential condition of notice under subsection (2) having been fulfilled, are in the contraventions of law, its subsequent order directing the workers to call off the strike, which is based on the first order, would also be without lawful authority, on the principle Adopted by the Supreme Court In Willayat Shah v. Muzafar Khan (PLD1971SC184). It was presumably a realization or this fact, which has mainly influenced the Labour Court to review and recall its orders of 20th April 1973. In view of the above considerations, we have come to the conclusion that there is no merit in the petition. We would accordingly dismiss the spine but in the circumstances of the case make no order as to costs. Petition dismissed.