P L D 1971 Dacca 190 (PLP)

(3) (4) The Provincial Government shall constitute, in the prescribed manner, by Notification in the official Gazette, two panels, one of which shall consist of representatives of employers and the other of representatives of the workers each panel consisting of not more than five persons: Provided that the Provincial Government shall reconstitute such panels after every two years, but the members of the panel notwithstanding the expiry of the said period of two years, shall continue on the panels till new panels are constituted and notified in the official Gazette: Provided further that members of the panels shall be eligible for reappointment for a period not exceeding two years at a time. (5) The Chairman shall, for adjudication, enquiry, deter mination or disposal of a case relating to a specific labour dispute, select one person from each of the two panels and persons so selected together with the Chairman shall be deemed to have constituted a Court in respect of that specific labour dispute: Provided that the Chairman may select any member from either of the panels as a member of the Court in respect of more than one case pending before the Court." The present provisions in the Industrial Relations Ordi nance, 1969 are in section 35 which may be quoted below: "Section 35.‑(1). , (2) A Labour Court shall consist of a Chairman and members to advise the Chairman, one of the members to represent the employers and the other to represent the workmen, all being appointed by the Provincial Government. (3) . (4) The members shall be appointed in consultation with the employers and workmen in such manner and on such terms and conditions as may be prescribed." The relevant Rule framed in 1960 under the Industrial Disputes Ordinance, 1959 is Rule No. 28, the material portions may be cited :‑ Rules 28.‑(1) The members of Industrial Court shall be selected by the Provincial Government from the panel of names prepared by the Labour Commissioner. (2) The Labour Commissioner shall ask the representative organizations of employers and workmen to nominate their representatives for appointment as members of the Court. The Labour Commissioner shall select such persons as members who, in his opinion, enjoy the support of the majority of those they are required to represent, and are also otherwise suitable for appointment as members. (3) . (4) . (5) . (6) Any member nominated to fill a casual vacancy shall hold office only for the unexpired portion of the term of office of his predecessor." From a reading of the above provisions of the different statutes it is found that the language of the section 7 of the Industrial Disputes Ordinance, 1959 and that of section 35 of the present Ordinance is substantially the same : there is only the inconsequential change of language between the two inasmuch as in section 7(2) of the Ordinance of 1959 the words are appropriate Government and in section 35(2), the Provincial Government: the other inconsequential change of language is that in section 7(4) of the Ordinance of 1959 a three years period for the members have been provided with option of their re‑eligibility for a further period of three years, but in section 35(4) of the present Ordinance, there is no provision fixing the period of the members. The change referred to above in the first case makes no difference in view of the fact that appropriate Government under the Ordinance of 1959 means Provincial Government. The second change of language in section 7(4) of Ordinance of 1959 and section 35(4) of the present Ordinance is not only inconsequential but no bar has been fixed with regard to the period of member ship in the present Ordinance and it has been left to the Rule making authorities to prescribe the details and so if a rule analogous to rule 28 is framed, there is no wording in the present:' Ordinance making the said Rule inconsistent with the present Ordinance. That being the position, Rules framed under Ordinance, 1959 as continued under the present Ordinance are valid. The other contention of the learned Advocate for the petitioner that the rule 28 was inconsistent with the provision of section 9(4) of the Act of 1965 and therefore it did not survive under the saving clause at least to that extent, is not tenable. First the said Rule is not inconsistent with the provisions of the present Ordinance. Secondly there is no inconsistency also with the provisions of the Act of 1965 inasmuch as the provision for two panels is there and only for consultation of the wishes of the employers and the workers that Labour Commissioner is assigned the said function but the selection and appointment are to be made by the Provincial Government; the period fixed in the Act of 1965 to the members is different but not inconsistent. Thirdly in the decision given in Petitions Nos. 106, 107 and 108 of 1968 as mentioned earlier the panel framed under the Ordinance of 1959 had been found to be valid under the Act of 1965. Another contention of the learned Advocate for the petitioner that there is an inconsistency between the Act of 1965 and the present Ordinance is that under the Act of 1965, the Chairman is to choose two representatives, whereas in the present Ordi nance the Provincial Government are to appoint those representa tives. It makes no material difference where the panel is prepared by the Provincial Government from which the Chairman chooses the representatives and the appointment of representatives by the Provincial Government, the only difference is that in the former case the entire panel is appointed by the Provincial Government whereas in the later case only the two representatives are appointed by the Provincial Government. This difference is more L on the mode and manner of appointing the representatives, than either the jurisdiction or the constitution of the Court. In either, case the constitution of the Court is the same viz. a Chairman and two members, one representing the employers, the other the workmen. The difference if at all are of minor and inconsequ ential nature relating to mere details of procedure rather than of substance. From the order sheet Annexure J to the affidavit‑in‑opposi tion it appears that the Labour Court consists of the Chairman and the two representatives, one of the employers, the other of the t workmen. There is therefore no defect in the constitution of the Labour Court as provided in section 35(2) of the present Ordinance. This contention of the learned Advocate for the petitioner therefore fails. The next contention of the learned Advocate for the peti tioner is that under the provisions of the present Ordinance, the stages of negotiation, conciliation and referring the dispute to the arbitrator having failed on their fresh charter of demand submitted on 22‑11‑69 the workmen under section 32 have the right to go on strike and as such the application of the Company under sections 34 and 45 of the Ordinance is not entertainable. He has further contended that the settlement dated 8‑8‑69 is void and inoperative and not binding upon the workers and that the Company's application on 15‑1‑70 before the Labour Court regarding the cessation of work for 15 minutes relates to a different dispute than the disputes that arose on the submission of fresh charter of demand by the Union on 22‑11‑69 and this charter of demand has no relation to the settlement dated 8‑8‑69 at all. Dr. Kamal Hossain the learned Advocate for the respondent Company has in reply contended that it is not correct that the charter of demands of 22‑11‑69 fresh demands and have no relation to the settlement dated 8‑8.

69. On the contrary most of the demands are covered by the said settlement which is binding on the parties for two years in terms of the settlement. He has further contended that the Union gave up its other claims when settlement was arrived at on 8‑8‑69 and gave a clear undertaking that no fresh demand would be made during the operative period of settlement. His contention is that the application filed before the Labour Court on 15‑1‑70 is substantially the same as that one made on 12‑2‑

70. He has also contended that the strike is illegal under section 46 (1) (d) of the Ordinance He further contends that there are matters for Labour Court, to decide. Regarding the conflicting contentions of the parties before us we refrain from giving any opinion of the merit of either of them, since it is the Labour Court under section 34 of the Act to decide the binding effect of the settlement or otherwise and on this decision will depend the validity or invalidity of the strike initiated and continued by the Union. It is held that Labour Court under section 34 of the Ordinance has the jurisdic tion to decide the dispute of the present nature and so this contention of the learned Advocate for the petitioner fails. Lastly it has been urged by the learned Advocate for the petitioner that the Labour Court has no power to pass ad interim injunction in the shape of prohibitory order. He contends in any event the ex parte order of injunction passed on 14‑2‑; 0 with out issue or service of notice is illegal and not binding on the Union and its office‑bearers. He has cited P L D 1958 Lah. 455 in support of the contention that due service of summons is a mandatory requirement of law. Dr. Kamal Hossain in reply has asserted that the Labour Court has jurisdiction to pass ad interim order and that notice has been sought to be served by publication of it in the daily Newspaper and in any event on 23‑2‑70 when this writ petition was sworn annexing a copy of the Pakistan Observer containing the notice, it should be deemed that from that day the ofiice bearers of the Union had notice of the said ad interim order and they not having obeyed the order by joining the work cannot raise this point or made a grievance of it. He has cited PLD1968Dacca76andPLD1964SC

475. The first part of the contention of the learned Advocate for the petitioner is difficult to uphold. Section 36(2) of the Ordinance provides that the Labour Court for adjudicating and determining any industrial dispute be deemed to be a civil Court and shall have same power as are vested in such Court under the Code of Civil Procedure. Section 45 (1) provides inter alia that when a strike or lock out in pursuance of an industrial dispute has already commenced and is in existence at the time when in respect of such industrial dispute, there is made to or is pending before a Labour Court inter alia an application under section 34, the Labour Court may, by an order in writing, prohibit the continuance of the strike or lock out. From a reading of the above provisions there cannot be any manner of doubt about the jurisdiction of the Labour Court to pass an ad interim order. This brings us to the second part of the contention of the learned Advocate for the petitioner. It may be one thing that the Labour Court has jurisdiction to pass an ad interim order but it is completely different matter the manner in which it is being exercised. In this connection it may be stated the rule 33 of the Rules formed in 1960 which is operative under the present Ordinance provides that any summons or notice may be served by registered post or by special messenger or through the parties at their own risk. From the order dated 14‑2‑70 it appears that in the present case on the representation of the Company no notice was at all issued or sought to be served in any of the manner provided in rule

33. On the contrary it is found the service of notice was altogether dispensed with on the ground that the parties on the proceedings might avoid personal service. It is strange that without even attempting to serve the notice when the addresses were given of the parties in the application under section 34, the dispensing of the service of notice was done on the mere suspicion of their avoidence of service. This order is based on mere suspicion and not on any evidence on record and no Court, act in such unjust or arbitrary manner. No reason has been assigned why any of the three modes of service provided in rule 33 could not be complied with. Nothing has been avoid what was the impediment for sending notice either by registered post or by special messenger or what was there that the Company could not serve the notice on its own workers. The decisions relied on by Dr. Kamal Hossain have no application to the facts of the present case as in those reported decisions notices were issued but were not served and in that context knowledge of notice or the order otherwise becoming known to the party were held in the peculiar circumstances of each case to be not invalid due to no‑service. In the present case no notice at all has been issued or served in the manner provided in rule

33. What has been done in the publication of the interim order in the daily Newspaper. There is no such provision in rule

33. Apart from this had this publication been made simultaneously be complying with any of the modes provided in rule 33, the cone sl1n tion of Dr. Kamal Hossain about the Union or its office‑bearer coming to know of tree prohibitory order otherwise would have some foundation. It may be noted that the disobedience to this prohibitory order attracts the penal provisions of the Act and inconformity with the well‑accepted cannon of strict interpretation of penal statutes, these provisions should be given strict construction and in favour of the person liable to penal action. There is another aspect of the matter in that there is a difference between failure of service and total no‑service. The' present case is one of non‑service and anagolous to suppression of summons and in such circumstances the petitioner and its I other office‑bearer cannot be held to be bound by such ex parte prohibitory order in the particular circumstances of the case. It may of course be stated that the Labour Court may, if it so thinks fit, issue a fresh prohibitory order after giving due notice in the manner provided in rule

33. No other point remains for consideration for the disposal of the present rule. The result therefore is that this application succeeds in part. It is declared that the order crated 14‑2‑70, passed by the First Labour Court, Dacca to the extent that the interim order issued prohibiting the petitioner from continuing the general strike in the factory of the Pakistan Tobacco Company Ltd., Mahakhali, Dacca to be without lawful authority and of no legal effect. The Rule is disposed of in these terms. There will be no order as to cost in this petition. SIDDIKY, C. J.‑I agree. A. E. Petition partly accepted.