1976 PLP 340 (PLC)

M. A. Khadim for Respondent. This is an appeal against an interim award dated 31‑12‑1974 of Punjab Labour Court No. 3, Lyallpur, dismissing the preliminary objection.

2. The General Secretary of National Mill Labour Union, Lyallpur, respondent, served strike notice on 4‑9‑1974 under section 26 (3) read with section 28 on the Management of the National Silk and Rayon Mills Limited, appellant, for going on strike in the case of failure of conciliation proceeding. On 18‑9‑1974 conciliation proceedings failed and the respondent went on strike with effect from 19‑9‑1974. After completion of 30 days of strike, the Provincial Government prohibited the strike and referred the industrial dispute to the Labour Court under section 32 (3) of Industrial Relations Ordinance, 1969. In all 22 demands were raised. The appellant raised preliminary objection that in view of the settlement (Exh. DA) dated 14‑9‑1973 between the parties a fresh notice of demands. could not be legally given during the subsistence of the said settlement.

3. The Labour Court found that when the strike notice was given by the respondent, the previous settlement was in force but in spite of that rejected the 'preliminary objection on the following grounds: (1) That there was no condition in the previous settlement that fresh demands could not be raised. (2) That sine the reference had been made by the Government it was not open to the said Court to enter into the question whether the strike notice was legal or not.

3. Aggrieved by the above order the appellant has preferred this appeal as already mentioned above.

4. The previous settlement was arrived at between the parties on 14‑9‑1973 in which 9 demands were accepted by the management. That agreement was to remain in force for a period of one year i.e. ending on 13‑9‑1974. Since no notice for revocation was given by either of the party to the other party as laid down under section 40 (2) of Industrial Relations Ordinance, 1969 the said settlement was still binding on both the parties. It vas contended by the learned counsel for the appellant that new demands which are covered by the previous settlement could not be raised while the previous settlement was still in force, and, therefore, the strike notice in the instant case was illegal. He relied on section 46(1)(d) of Industrial Relations 'Ordinance, 1969, which reads as follows:- (1) A strike or lock‑out shall be illegal if it is declared, announced or continued during the period in which a settlement or award is not operation in respect of any of the matters covered by a settlement or award. There is, however, an exception to the above proposition, It is a well established law that demands regarding financial implications can el raised in spite of the previous settlement, if tie conditions and circumstances have materially changed. This is a question of fact and the party raisin these demands has to satisfy the Court that the conditions and circumstances have in fact materially changed. I am fortified in this view by the decision of the High Court in the case, The Cresent Pak. Soap and Oil Mill) Labour Union v. Messrs Cresent Pak. Soap and Oil Mills and 2 others (1) wherein it w as observed It is my considered opinion that the employees when they make certain demands on the employer must include in the case of public utility service concerned, all their claims which they are entitled to make at the time in their strike notice. Where they omit to include certain demand in the strike notice or intentionally relinquish any portion of the demand, the employees should not afterwards in respect of the demand so omitted or relinquished be entitled to serve a fresh strike notice so long as the settlement arrived at or the award given as a consequence of such strike notice is in operation. It will be an abuse of the process of law if the employees are given the right to agitate their demands, one by one by giving separate strike notice for each demand. In such an eventuality the disputes between the employers and the employees will never be settled and the purpose of law that a peaceful atmosphere be created in the public utility service and the dispute avoided so that such service may be able to run efficiently and continuously, will be completely defeated, I am prepared to concede to the employees a right to agitate the issues covered by or omitted from the settlement or the award if the 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 these 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. I am further fortified in this view by the judgment of the Division Bench of the High Court in the case, Messrs The Attock oil Company Ltd. v. The Supreme Body of Oilfields Labour and Refinery Union, Rawalpindi (2), wherein it was observed It is the duty of the Court to examine each agreement carefully to satisfy itself that it was made in good faith and was not intended to defeat just and reasonable demands put forth by the workers. When the Court is satisfied it is only then that the settlement can be made the basis for the award of the Court. The terms of the settlement arrived at between the workers and the employers were as under: (1968 P L C 87) Accepting the terms of the agreement in full and final settlement of all demands and disputes is existence up to the time of agreement and/or pending before the Industrial Court; (P L D 1970 Lah. 122) Under taking not to raise or pursue during operation of this settlement any demand involving financial commitments expenditure . . . . . The industrial dispute raised by the Workers' Union regarding decrease in the bonus rate by the company subsequently was objected to as frivolous and vexatious and on the ground that the Union was precluded from raising dispute involving financial expenditure: Held, the words in the agreement undertaking not to raise or pursue during the operation of the settlement any demand involving financial commitments/expenditure direct or indirect on the part of the Company cannot be read independent of clause of the agreement which lays down that the terms of the agreement extended to all demands in dispute in existence up to the time of agreement and/or pending before Industrial Court. It cannot, therefore, be argued that it was the intention of the parties to say the least of the Union that by this agreement they closed the doors upon themselves of all those remedies which were open to them under the law for any new dispute watch might creep up during the period the agreement subsisted.

5. In the previous settlement dated 14‑9‑1973 there was no under taking that the Union will not raise or pursue during operation of that settlement any demand involving financial commitments/expenditure but nevertheless the Union is precluded from raising new demands which are covered by the previous settlement unless it can show that conditions have materially changed.

6. Now the next point for determination is as to whether it is open to the Labour Court to enter into the question whether the strike notice was legal or not, when a reference has been made by the Government. The learned counsel for the respondent contended that it was. beyond the scope of the Labour Court to enter into the question whether the strike notice was legal or not when the reference was made by the Government. He relied on the judgments of the Industrial Courts in the cases Messrs Paracha Textile Mills Limited, Karachi v. The Paracha Textile Mills Workers' Union, Karachi (1960 P L C 115), Abbasi Textile Mills Workers' Union, Rahim Yar Khan v. Abbasi Textile Mills Ltd., Rahim Yar Khan (1962 P L C 236). The learned Labour Court also placed its decision on the aforementioned cases. From the perusal of these judgments I find that these cases were under section 10 of industrial Disputes Ordinance (LVI of 1959). Section 10 of the afore mentioned Ordinance reads as follows: "(1) The Court shall‑(a) before proceeding with the adjudication and determination of the industrial dispute in respect of which an application has been made under subsection (5) of section 5, determine in a summary way the question, if raised by any party to the dispute other than appropriate Government, that all or any of the matters constituting such dispute are frivolous or vexatious. (b) Enquire into and adjudicate any matter referred to it by the appropriate Government for enquiry and adjudication ;" In Industrial Relations Ordinance, 1969 there is no such exception made if a reference is made by the Federal or Provincial Government. Under section 32(2) of Industrial Relations Ordinance, 1969 where strike or lock‑out lasts for more than 30 days, appropriate Government can by order in writing prohibit a strike or lock‑out. Under section 32 (3) of the Ordinance appropriate Government having prohibited a strike or lock‑out shall forthwith refer the dispute to Labour Commission or, as the case may be, the Labour Court. Under section 32(4) of the Ordinance the Commission, or as the case may be, the Labour Court shall after giving both the parties to the dispute an opportunity of being heard, make such award as it deems fit as expeditiously as possible but not exceeding 30 days from the date on which the dispute was referred to it. The Commission or the Labour Court can also make an interim award on any matter of dispute. Under section 35 (5) of the Ordinance the Labour Court shall adjudicate and determine an industrial dispute which has been referred to or brought before it under this Ordinance. There is nothing in this section to restrict a right of the Labour Court to decide as to whether an industrial dispute is valid or not. There is also no difference between a reference by the Government under section 32 (3) or by a party under section 32 (1‑A) of the Ordinance. If for the sake of argument the Government finds that an industrial dispute is not valid, then what has the Government to do, in view of the fact that there is no provision in the Ordinance for the Govern ment to decide the validity of the industrial dispute. In any case the only action that the Government can take is to refer the industrial dispute to the Labour Court, which will decide whether the dispute is valid or not. Further in the case of an illegal strike the workers would feel shy to go before the Labour Court under section 32 (1‑A) of the Ordinance anal in that case the only remedy available would be for the Government to refer the dispute to the Labour Court which will decide as to whether the strike was l legal or not.

7. In the result the contention of the learned counsel for the respondent has no force and the rulings relied upon by him do not apply. I, accordingly, accept the appeal, set aside the order of the learned Labour Court and remand the case back to it for adjudication of the industrial dispute on merits in the light of the judgments of the High Court cited above.