1976 PLP 132 (PLC)

S. 32 (I-A)-Application to Labour Court-Not maintainable with out observing procedure prescribed for raising industrial dispute Strike notice not served-Union's petition for adjudication of demands, in circumstances, held, not maintainable. The question was that whether a petition by the Collective Bargaining Agent under S. 32 (1-A) of the Industrial Relations Ordinance, 1969 was maintainable in the absence of any strike notice to the employer under section 26(3) of the Ordinance. It was contended that the word "may" used in section 26(3) meant that it was not mandatory. Held: Section 41 of the Industrial Relations Ordinance, 1969 provides f that a conciliation proceedings shall he deemed to have commenced on that date on which a notice of strike or lock-out is received by the Conciliator. As no notice of strike was sent to the Conciliator, therefore, conciliation proceedings did not commence in this case. Again section 32(1) provides that if no settlement is arrived at during the course of conciliation proceedings and the parties to the dispute do not agree to refer it to an Arbitrator the workman may go on strike or, as the case may be, the employer may declare a lock-out on the expiry of period of notice under section 28 or on a declaration by the Conciliator that the conciliation proceedings have failed, whichever is later. Section 32(1-A) provides that a party raising an industrial dispute may at any time; either before or after the commencement of strike or lock-out make an application to the Labour Court for adjudication of the dispute. Sections 32(1) and 32 (1-A) when read together make it abundantly clear that a party can come to the, Labour Court only when no settlement is arrived at during the course of conciliation proceedings. Moreover section 43 of the Ordinance 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 requirements of this section having been expressed in the negative language are mandatory. The above named Union has moved this application under section 32 (I-A) of the I. R. O. 1969 for the adjudication of local demands contained in the charter of demands, dated 2nd January 1974 Annexure A . In the petition it is stated that the petitioner-Union served a demand notice dated 22nd January 1974 on the respondent under section 26 of the I. R. O. 1969. As no settlement could be reached by direct negotiations, therefore, another notice (Annexure `B') was served on the respondent and its copy was sent to the Conciliator who issued letter, dated 30th April 1974 (Annexure `C') on receipt of which the parties attended the meetings held by the Conciliator on 19th May, 1974". It is further stated that the respondent was represented by the Vice-president of the Establishment who attended meet ing and after the second meeting called by the Conciliator the conciliation meeting was represented by Administrator/Officer of the Establishment without any authorization there after no person authorized attended the conciliation meeting on 17th June 1974 (sic) . It is alleged that thereafter no other meeting was held nor any settlement through conciliation was reached and as the period of conciliation has passed, therefore, this industrial dispute may be adjudicated. The respondent resisted the petition and raised the preliminary objec tions contained in paras. 1 to 9 of the reply statement. The arguments of the learned representative of the petitioner and the learned counsel for the respondent on the preliminary objections have been heard. The main argument of the learned counsel for the respondent is that the application is not competent as no strike notice was served by the petitioner Union on the respondent or the President of the Executive Board of the Bank who alone is the employer within the meaning of sec tion 2 (viii) (c) of the I. R. O., 1969. On the other band the learned represen tative of the petitioner-Union has contended that the service of demand notice is not a condition precedent for filing an application under section 32 (I-A) of the I. R. O, 1969. To support his argument he has relied on section 26 (3) which provides that where a settlement is not reached between the parties the 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 2. notice of lock-out or strike as the case may be. It has been argued on behalf of the petitioner that a strike notice was served ca the employer and if it be assumed that no such notice was served even then the application is competent as the service of such notice is not mandatory. Apparently the argument looks lucrative but when viewed in the light of other provisions of law it loses all its signi ficance. The first question which crops up in this case is as to whether a strike notice was served on the employer. Mr. Iqbal Hussain Rizvi General Secretary of the petitioner Union has stated in cross-exami nation that after serving the demand notice dated 22nd January 1974 he had sent a strike notice to the Management (Copy Exh R. 3). This document is the copy of a letter addressed to the Assistant Director, Labour Welfare, Sialkot requesting him to take steps to get the "grievance solved across the table lest the situation may go out of control. "The attention of the witness was drawn to this letter and he was told that it was addressed to the Assistant Director, Labour, Sialkot and was not a strike notice but he insisted that it was a strike notice. He also admitted that no copy of this notice was sent to the Management. This letter by no stretch of imagination can be taken as a strike notice. I am, there fore, satisfied that no strike notice was served on the employer. The next question that arises for decision in this case is whether an appli cation under section 32 (I-A) of the I. R. O. would be competent where no strike notice was served on the employer. The words used in section 26 (3) of the 1. R. O. are that the 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. The representative of the petitioner laid much stress on the word may and argued that the service of the strike notice is not at all necessary. Section 29 of the I. R. O. provides that where a party to an industrial dispute serves a notice of strike or lock-out it shall simultaneously with the service of such notice deliver a copy thereof to the Conciliator who shall proceed to conciliate in the dispute. Section 30 provides that the Con ciliator shall as soon as possible, call a meeting of the parties to the dis pute for the purpose of bringing about a settlement. No procedure for conciliation has been prescribed by the Ordinance in cases where a notice of strike or lock-out is not served on the opposite party. A question arises whether the steps, if any, taken by the Conciliator on receipt of Exh. R-3 can be termed as conciliation proceedings. The answer seems to be in negative. Section 41 of the I. R, O, provides that a conciliation proceed ings shall be deemed to have commenced on that date on which a notice of strike or lock-out is received by the Conciliator. As no notice of strike was sent to the Conciliator, therefore, conciliation proceedings did not commence in this case. Again section 32 (1) provides that if no settlement is arrived at during the course of conciliation proceedings and the parties to the dispute do not agree to refer it to an Arbitrator the workmen may goon strike or, as the case maybe, the employer may declare a lock-out on the expiry of period of notice under section 28 or on a declaration by the Conciliator that the conciliation proceedings have failed, whichever is later. Section 32 (I-A) provides that a party raising an industrial dispute may at any time, either before or after the commencement of strike or lock-out can make an application to the Labour Court for adjudication of the disputes. Sections 32 (1) and 32 (1-A) when read together make it abundantly clear that a party can come to the Labour Court only when no settlement is arrived at during the course of conciliation proceedings. Moreover section 43 of the I. R. O. 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 requirements of this section having been expressed in the negative language are mandatory. Since this application has been brought without observing the prescribed procedure, therefore, it is not maintainable and is hereby dismissed.