1971 PLP 418 (PLC)

7. Industrial dispute means :‑ "Any dispute or difference between employers rind employers or between employers and workmen or between workmen and workmen which is connected with the employment or non- employment or the terms of employment or the conditions of work of any person ;"

8. The learned Representative submitted that by no stretch of imagination can it be said that the dismissal of the reference, in default of the appearance of the workers of National Steels Limited, to be determination of the industrial dispute as defined in the Ordinance. He submitted that the impugned order dated 21st September 1970, is merely a culmination of the proceeding pending before the learned Chairman of the Labour Court. It is not a determination of the dispute between the parties. The object of the decision called award, it is submitted by Mr. Ghani is to resolve the difference between the parties. It cannot be that the word "determination" in the definition just means putting an end to the proceedings in whatever manner it may be. That an order dismissing the reference for default cannot be a determination of the industrial dispute. The learned Representative relied, in support of his contention, on two cases, Andhra Handloom Weavers' Co‑operative Society v. State of Andhra Pradesh and others ((1963) 2 L L J 488) and The Workmen of Travancore Rayons Limited, Rayonpuram v. Travancore Rayons Limited, Rayonpuram and another ((1967) 1 L L J 518). Mr. Ghani, the learned Representative also contended that the phrase "any matter relating thereto" occurring in the definition of award cannot be given an interpretation so as to include an order whereby the Court may dismiss a reference in default for non‑appearance of a party. The phrase "any matter relating thereto" has to be read ejusdem generis with the words "industrial dispute" to cover only controversies with regard to the employment or non‑employment or the terms of employment or the conditions of work of any person. In this connection, he relied on a Supreme Court Authority, in the case of Province of West Pakistan v. Syed Moharram Ali and 93 others (1970 P L C 408).

9. There is no doubt that a clear distinction exists between mere culmination of proceedings before the Court and adjudication or determination of the industrial dispute before the Court. An industrial dispute can be said to have bee finally disposed of if a party concerned cannot reagitate the demand that it bad raised. Whether a dispute has been finally disposed of by the Labour Court or not will, in the first place depend on the order itself and in the second place, upon the special provisions of the Industrial Relations Ordinance, 1969. I will now proceed to deal as to what the Curt has itself held by the impugned order. The relevant paragraph of the order is paragraph

5. It runs as under :‑ "The Workers' Union in this case has to be treated as the plaintiff in the proceedings before me as Civil Procedure Code applies to these proceedings as provided by section 36 of the Industrial Relations Ordinance, 1969, as they have raised the said demands, therefore, as this plaintiff‑workers union is absent and have also not lead any evidence as such for non‑prosecution of these proceedings also on their behalf I would pass an award that no relief can be given to the said Workers' Union by way of this award and it is accordingly hereby so passed. The reference is likewise disposed of accordingly in terms of this award. The demands sent for adjudication and determination shall stand rejected."

10. It is true that mere label of the word "award" will not make an order an award within the meaning of the definition given in the Ordinance. In the present case however, the Court has not only termed its order as an award, but has also clearly observed that no relief can be granted to the Workers' Union by way of an award. This observation of the Court gill always stand in tile way of the Workers' Union. The Count refused to grant any relief to the Workers' Union, primarily because the Court came to the conclusion that service had been affected on the Workers' Union and that it did not care, in spite of he service, icy appear before the Court to adduce evidence in support of its demands.

11. The Industrial Relations Ordinance, 1969, has made special provision for determination of industrial dispute between .he workers and the employers. A reference may be made to section 32 of the Ordinate, as it stood prior to 17th October 070, which reads as under :‑‑ "(1) If do settlement is arrived at during the course of conciliation proceedings and the patties to the dispute do trot agree to refer it to an arbitrator under section 31, the workmen may go or strike or, as the case mail be, the employer any declare a lock‑out, in accordance with the notice of lock‑out. (2) If a strike or lock‑out lasts for more than thirty days, the Provincial Government tray, by' order in writing, prohibit the strike or lock‑out. (3) In any case in which the Provincial Government prohibits strike of lock‑out, it shall forthwith refer the dispute to the Labour Court. (4) The Labour Court shall, after giving both the parties to the disputed an opportunity of being heard make such award as it deems fit as expeditiously as possible but not exceeding sixty days from the date on which the dispute was referred to it: Provided that the Labour Court may also make an interim award on any matter of dispute: Provided also that any delay by the Labour Court it making an award shall not effect the validity of any award made by it. (5) An award of the Labour Court shall be for such period as may be specified in ?he award which shall not be more than two years.

12. In the present Ordinance, the Workers have no power 'as they lead in 1959 and 1968‑Ordinance to approach the Court for determination of their dispute. The workers have not been 'given any, right to apply to the Labour Court for determination of their industrial dispute. It is only the Provincial Government, which has the power to snake a reference to the Labour Court for determine lion of the industrial dispute. Section 32 of the Ordinance, has now been amended and if the workers and the Management both agree, they can apply to the Court for determination of their dispute. The learned Chairman of the Court, 'as would appear from paragraph 5 of his order, which I have already reproduced above, had subsection (4) of section 32 of the Ordinance in, his mind. He came up, the conclusion that the Union had been given an opportunity to be heard, but it failed to avail of the opportunity and produce evidence to substantiate its demands, and therefore, it was not entitled to any relief. I have come to the conclusion, after careful consideration, that in the circumstances of the present case the impugned order is an award. Moreover, if the impugned order to is not treated as an award, the Union may never be able to have its demand's adjudicated upon. The Provincial Government may not deem it necessary, in the, face of the order passed by the learned Chairman, to make a fresh reference to the Court and the Management may never agree with the Union to make a reference to the Court for determination of the dispute. In these circumstances, I would hold that the impugned order is an award.

13. The next question that requires consideration' is as to whether the appellant had been served and in spite of service lead failed to appear before the learned Court. In this connection, it would be useful to reproduce the, relevant portion of the reference made by the Government, dated 27th May 1970, which is as under :‑ "Whereas, an industrial dispute arose between the Management and the workers of National Steels Limited, Landhi, Karachi and as a result of which, strike was conducted by the workers which has lasted for more than 30 days; Now, therefore, in exercise of the powers conferred under subsection (2) of section 32 of the Industrial Relations Ordinance, 1969 (Ordinance No. XXIII of 1969), the Governor of West Pakistan is pleased to prohibit the strike in the said industry and to refer the demands of the workers to the West Pakistan Labour Court No. 1, Karachi in accordance with section 32(3) of the said Ordinance, for determination and adjudication."

14. It is important to note that the reference made to the Court under section 32 of the Ordinance does not give the address of the National Steels Employees' Union Mr. Ghani, the learned Representative for the respondent has produced a copy of the Demand Notice to the Management dated 15th November 1969. The address given in the notice of demands is, "Mazdoor Office, 43/127, Double Room, Korangi; Karachi." Mr. Ghani on my request produced the copy of the order of reference to the Court, dated 27th May 1970. In this copy of order of reference the address of the Union has been given, which is the same as given in the notice of demands, already mentioned. The order of reference to the Count which is on the record does not give any address of the Union. I have not been able to assign any reason for not giving the address of the Union in the order of reference to the Court, as stated in the copy of order of reference sent to the Management. If the Government had given the address of the Union in the order of reference, the Court would have directly served the Union, avoiding the present proceedings before me. The Court was obliged, in the absence of any specific address of` the Union to send notices to the Union for appearance before it through the Zonal Director, Labour Welfare, Karachi.

15. I would now proceed to examine the notices that were sent by the Court to the parties concerned. There are three notices (summons) on the record of the learned Court. The first summons is dated 8th June 1970, directing the parties to appear before the Court on 20th June 1970. The notices were issued to, (1) National Steels Employees' Union through the Zonal Director, Labour Welfare, (2) National Steels Limited, Landhi, Karachi, and (3) The Government of West Pakistan Labour Department. Lahore. There is an endorsement on the summons of its receipt by Mr. Arshad Ahmad, who, I am told by Mr. Sarfraz A. Kari, Manager of the Management, who is Present in Court, is a Factory Manager. There is also the Seal on behalf of the Zonal Director, Labour Welfare, Karachi. On the back of the summons there is the endorsement of Muhammad Ayub, Process Server. He had endorsed that he bad served both. Thereby, the Process Server meant that he had served the Factory, and the Zonal Director and not the Union. The second summons is dated 2nd September 1970. The endorsement of Muhammad Ayub, Process Server on the back of the. summons would show that he had served the Manager of the Factory, but could not serve the Zonal Director, Labour Welfare, as the office had closed. It may be noted that no attempt had been made to serve thin National Steels Employees' Union directly. The third summons is dated 12th September 1970, for 21st September 1970. This summons is Issued to National Steels Employees' Union through the Zonal Director, Labour Welfare, Karachi. Muhammad Ayub, Process Server's endorsement on the back of the summons reads as under :‑ "Summons have been served. The Despatcher has received the summons."

16. It is significant to note that there is nothing on the record, so far as the summons issued through the Court is concerned, that any summons was served on the Union directly. The Court obviously could not serve the Union directly, as the Government did not care to supply the proper address of that Union to the Court.

17. The Court was very anxious before disposing of the reference to make sure that the workers' Union had been served. In this connection, it would be useful to, reproduce a portion of paragraph 4, of the Order. It reads as under :‑ "Today again Mr. Mahmood A. Ghani was present on behalf of the Management of National Steels Limited, but no one plot in appearance on behalf of the aforesaid workers` Union of this Mill. As no reply was received from the Director, Labour Department, I got in touch with them in order to enquire whether the summons sent by us to them for service on the workers' Union was in fact so served and I was given a reply that the summons had been despatched by registered post acknowledgement due to the said worker Union to their address. I also seat my Reader to the Office of the Labour Department from where he has brought the postal registration receipt (Exh. A), whereby the covering letter containing our fresh summons on the said workers' Union was despatched by post by this department."

18. It is clear that the Court did all that it could to satisfy itself that the workers'. Union had been served for 21st September 1970. The Court was under the impression, as conveyed through the Department, that the workers' Union had been served as per Exh. 'A', registration receipt. The Court took it for granted that the Labour Department had acted with due care and diligence in sending notices to the workers Union of the National Steels Limited. Exh. 'A' is on the record of this case. It is addressed to Messrs Shalimar Steels Limited, Karachi. It is apparent that the Labour Department for some reason or the other did not serve the Union for 21st September 1970, when the reference was fixed for disposal. I took a charitable view of the conduct of the person who sent the notice to Messrs Shalimar Steels Limited, and not to the National Steels Employees' Union and came to the conclusion that perhaps correct postal certificate has not been produced Being of the opinion that through mistake wrong postal certificate has been produced, I requested the Labour Department to produce the Postal Certificate, whereby a Registered Notice was sent to National Steels Employees' Union. Notice has been served on the Department for today, but no one appears. I have no option but to conclude that the Labour Directorate for some reason or the other did not send the notice to the correct person, but to Messrs Shalimar Steels Limited. For these reasons, I would hold that no notice was served on the National Steels Employees' Union to appear before the Court on 21st September 1970. In these circumstances, I would set aside the award dated 21st September 1970. The learned Court would now dispose of the reference and issue notice to the Union directly on the following address :‑ "National Steels Employees' Union, C/o 37‑B/753, Landhi Colony, Karachi."