1989 PLP 546 (PLC)

I intend to dispose of both these revision applications by this single decision as they are between same parties based upon same facts and are inter connected.

2. The brief facts leading to these proceedings are that the applicant is a Collective Bargaining Agent of the workers employed by the respondents factory. On 31‑7‑19136, a settlement was arrived at between the parties which was confirmed on 21‑8‑1986. However, on 26‑1‑1988, the respondents served a notice of demands upon the applicant under section 26(1) of I.R.O., 1969 (hereinafter called the Ordinance). On 8‑2‑1988, the respondents served a notice of lock‑out under section 26(3) of the Ordinance. On 5‑3‑1988, the conciliation proceedings between the parties were declared to have failed and consequently the respondents filed a petition under section 32(1‑A) of the Ordinance before the learned Labour Court, being Application No. 1 of 1988, for adjudication and determination of the disputes.

3. The applicants resisted this application on the ground that the notice as required under section 40(2) of the Ordnance was not served by the respondents upon the applicants as such the aforesaid settlement was still binding and no notice of fresh demands by the respondents or subsequent proceedings m Labour Court could lie. It was further contended that some of the demands were with regard to the matters guaranteed to the workers by law and as such there can be no adjudication with regard to such demands. An application was moved by applicant union for dismissal of this application filed by the respondents management which was rejected by the learned Labour Court vide order, dated 8‑11‑1988. Against this order, revision application No. 418 of 1988 has been filed.

4. On 31‑1‑1988, the applicants served notice of demand upon the respondents under section 26(1) of the Ordinance and on 6‑3‑1988, a fresh notice of demands was served upon the respondents amending the earlier notice of demands, dated 31‑1‑1988. On 7‑3‑1988, a notice of strike was served upon the respondents by the applicants under section 26(3) of the Ordinance whereupon the conciliator started proceedings of conciliation between the parties under section 30 of the Ordinance. Against these proceedings of conciliation, the respondents filed application under section 34 of I.R.O., 1969, for declaration that after declaration of failure of the conciliation proceedings on the notice of lock out by the applicants, the subsequent conciliation proceedings held by the Conciliation Officer on the strike notice of the Union were illegal. Alongwith this application, the management also moved an application for ancillary relief by way of stay of the proceedings before the Conciliation Officer on which the stay order was passed. Against this order, the applicants have filed revision application No. 417 of 1988.

5. I have heard Mr. Ali Amjad, learned counsel for the applicant union and ‑Mr. Mahmood A. Ghani, learned counsel on behalf of the respondents management. Messrs S.P. Lodhi, Abdul Majeed, M:L. Shahani, MA. Khan, Khalilur Rehman and Muhammad Ashraf Khan also addressed the Tribunal as amicus curiae. Before proceeding further, I must express my appreciation for the valuable assistance rendered by the said learned gentlemen to the Tribunal.

6. As pointed above, admittedly there was a settlement between the parties on the charter of demands raised by the union as well as by the management. Copy of memorandum of this settlement has been filed. It is in two parts, Part No. 1 shows the names of the representatives of the parties who participated in the settlement. The short recital shows that settlement had been arrived which amicably resolved all the demands raised by the union as well as by the management as full and final settlement. Clause 1(b) shows that the settlement will be for a period of two years effective from 1st January, 1986 to 31st December, 1987, and till such time subsequent agreement comes into force. Further clauses in Part No. 1 of the settlement are with regard to the demands raised by the workers union. Part No. 2 of this settlement deals with the demands raised by the management. There is no recital clause in this Part No. 2 of the settlement nor the names of the representatives are mentioned therein nor the period of duration of the settlement is mentioned.

7. Mr. Mahmood A. Ghani, the learned counsel for the respondents contends that both the parts of the settlement would be read as one and the period of duration as mentioned in Part No. 1 would also be applicable with respect to the agreement contained in Part No.

2. Prima facie there appears to be force in this contention, therefore, both parts of the settlement appear to be valid upto 31‑12‑1987. No doubt, there is a rider clause that the agreement would be valid till subsequent agreement is reached between the parties, but, this rider clause would not bar the issuance of charter of demands by either party. Unless charter of fresh demands is issued by the parties, there can be no subsequent agreement, therefore, in my opinion the settlement between the parties prima face appears to be governed by subsection (1) of section 40 of the Ordinance and not by subsection (2).

8. I may also consider another question which is common in both the revision applications that is whether a charter of demands which comes for adjudication or settlement before the Labour Court constitutes a single industrial dispute or it is comprised of several industrial disputes joined in one proceeding to avoid multiplicity of proceedings.

9. Industrial dispute has been defined in second 2(xiii) of the Ordinance to' mean any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is concerned with the employment or non‑employment or the terms of employment or the, conditions of work of any person and is not in respect of the enforcement of any right guaranteed or secured to him by or under any law, other than this Ordinance, or any award or settlement for the time being in force.

10. In the instant cases the charter of demands of both the parties is said to 'consist of a number of demands on each of which there is difference between the employer and the workmen. As such, each of such demands on which there is a difference would constitute a separate dispute but, all have been joined together in one charter of demands or one proceeding before the learned Labour Court in order to avoid multiplicity of the proceedings. By using words "industrial dispute" m singular form in respect of such charter of demands or proceedings before the Labour Court would not in my opinion merge all the disputes in one dispute. In the legal terminology singular includes plural, and vice versa

11. The contention of the applicants in the Revision application No. 418 of 1988 is that the demands/disputes raised by the respondents are with respect to the legal rights of the workers which are guaranteed under the law and as such no adjudication can be held with regard to such rights and consequently such application for adjudication under section 32(1‑A), I.R.O., 1969 was not, maintainable before the Labour Court. Whereas the contention of the respondents in Revision Application No. 417 of 1988 is that the demands/disputes raised by the applicants in their strike notice which arc subject‑matter of conciliation proceedings are barred under section 44 of the I.R.O., 1969, as they are subject‑matter of the industrial dispute raised by the respondents which is already pending before the Labour Court. It is further submitted that even if one of the disputes is identical to the dispute already raised pending for adjudication before the Labour Court, the notice of strike as well as conciliation proceedings would be illegal.

12. The demands/disputes raised by either parties have not been produced l before this Tribunal. Furthermore these are mixed questions of fact and law. The question of fact can be decided by the learned trial Court only after the parties 11) lead evidence. It would be premature and un‑warranted procedure for this I Tribunal to adjudicate and decide these questions of fact in the revision proceedings under section 38(3‑A) of the Industrial Relations Ordinance, 1969, against the interlocutory orders passed by the learned Labour Court.

13. Both the parties have relied upon extensive Case‑Law in support of their respective contentions. The law is laid down by the superior Courts keeping in view of the facts of a particular case. Unless the facts of the case in dispute are determined and decided after proper procedure, the application or no application of the case‑law cannot be properly considered. I, therefore, need not discuss the case‑law.

14. However, the question that requires consideration is whether the learned Labour Court had powers to grant status quo/stay order with regard to the proceedings before the Conciliator in proceedings under section 34 of I.R.O. 1969, pending before the learned Labour Court.

15. In the case of Brooke Bond (Pakistan) Ltd. v. Second Sind Labour Court, Karachi, 1973 P L C 111, a Division Bench of Karachi High Court consisting of late Justice Tufail Ali A. Rehman. Chief Justice and Mr. Fakhruddin G. Ebrahim J., had held‑‑ _ "Subsection (2) of section 36 does not confer on Labour Court while adjudicating and determining an industrial dispute, all the powers of a civil Court under the Civil Procedure Code but only such of them as may be described as procedural i.e. such as arc required for the purpose of adjudication and determination. It is clearly not necessary in order to be able to adjudicate or determine a dispute that pending the adjudication or determination, a party be restrained from giving effect to order passed by it whereby the services of its employee had been terminated."

16. However, in the cases reported in 1984 P L C 1393; 1984 P L C 115 and 1986 P L C 105, it has been observed that in any dispute pending before the Labour Court, National Industrial Relations Commission or the Labour Appellate Tribunal those Courts could grant interim relief which is ancillary or incidental to the main question under dispute.

17. It is settled law that one of the principles that is kept in consideration by the Courts while granting the interim relief is whether the party would suffer irreparable loss if no relief is granted. In the instant case, the respondents in proceedings under section 34 of I.R.O., 1969, had sought stay of the proceedings before the Conciliator. The question that arises is as to what irreparable harm the respondents would suffer if the conciliation proceedings are not stayed by the learned Labour Court. The Conciliator under section 30 of I.R.Q., 1969, does not have powers of adjudication, but, he has only to try to bring about amicable settlement between the parties with regard to the dispute and m case he fails to bring about such settlement within the period of notice of strike or lock‑out he shall send a report thereof to the Provincial Government. The period of notice of lockout under section 28 is 14 days. In fact, from the arguments of Mr. Mahmood A. Ghani, it transpired that the respondents do not appear to apprehend any irreparable loss during the pendency of the conciliation proceedings or from decision of the Conciliator, but they apprehend an irreparable loss after the failure of the conciliation proceedings. It was urged that the applicants could proceed on illegal strike which would cause irreparable loss to the respondents. The respondents have already instituted proceedings under section 34 of the l I.R.O., 1969 before the learned Labour Court, as such, if the applicants call an illegal strike after the failure of the conciliation proceedings, the respondents have got the remedy to move the Provincial Government under section 32(2) to prohibit such strike. They also have a remedy under section 45 to move the Labour Court to prohibit such strike. If the applicants still persist in the illegal strike, then, the consequence are provided for under section 46‑A of the I.R.O., 1969 under which the workers who continue an illegal strike can be removed from service and also the registration of the union can be cancelled. Thus, it cannot be said that if the conciliation proceedings are not stayed or if they ended in failure the respondents would have no remedy but will sufter irreparable loss.

18. In the case of National Construction Co. (Pak) Ltd. General Employees' Union (C.B.A.) v. National Construction Company (Pak.) Ltd. 1984 P L C 1393, this Tribunal had observed as under:‑ "Labour Court may have no power to pass an interim order restraining employer from terminating services, of its employees in an individual grievance petition but in a case under section 34, I.R.O., 1969, when there is a question of enforcement of pre‑existing right under law; award or settlement and by action of opposite patty such right is threatened to be violated and if succeeds there would be nothing left to adjudicate upon finally; the Labour Court, in my view has power to pass an order to maintain status quo."

19. Thus, it will be seen that the powers could be exercised by the Labour Court only m a case where the right, which is threatened, is violated and nothing would be left for adjudication finally. It will be seen that the question off irreparable loss was the criterion for the issue of interim order. In the instant case

21. In the case of Syed Mushtaque Hussain Shah v. Riaz Muhammad Hazarvi and another, P L D 1978 Kar. 612, Mr. Justice Z.A. Channa. J., as he then was, has referred to clause (d) of section 56 of the Specific Relief Act which provides that "an injunction cannot be granted (d) to interfere with the public duties of any department or the Federal Government or any Provincial Government or with the sovereign acts of a foreign Government". He has, therefore, held that the grant of registration were clearly public duties of the' Registrar and no mandatory injunction could be issued to the Registrar to stop him from granting such registration. Section 29 requires that where a party to an industrial dispute serves a notice of strike or lock‑out under section 26 it shall, simultaneously with the service of such notice, deliver a copy thereof to the Conciliator who shall proceed to conciliate in the dispute and to the Labour Court. Under section 30, certain mandatory duties are cast upon the Conciliator for proceeding with such conciliation on the receipt of notice. It will be seen that all these are mandatory duties enjoined under Law upon the Conciliator and any stay order issued by the Labour Court, would amount to interference with his public duties, which is barred under section 56 of the Specific Relief Act.

22. In the instant case, as already pointed out, the conciliation proceedings would not cause any irreparable loss, but, it is only the fear of the respondents that after the failure of the conciliation proceedings, the applicants may resort to an illegal strike. What applicants may do in future after the failure of the conciliation proceedings is mere conjuncture. They may proceed on strike or they may raise an industrial dispute for adjudication before the learned Labour Court under subsection (1‑A) of section

32. The Court cannot pre‑judge their action and issue injunction to stay the conciliation proceedings which can result in prohibiting the applicants from seeking legal remedy under subsection (1‑A).

23. For the aforesaid reasons and discussions, the Revision Application No. 418 of 1988 is allowed and the impugned order of the learned Labour Court is set aside,but, the Revisional Application No. 417 of 1988 it dismissed. M.Y.H./1397/Lb. S Order accordingly.