1991 PLP 582 (PLC(CS))

Ss. 25-A & 41(2)

Mala fides

Mere fact that union did not respond to attempt of petitioner to negotiate would not prima facie invalidate further proceedings

Mala fides also could not be presumed unless such evidence was recorded

Order of Labour Court rejecting petitioner's application under O.XXXIX, Rr. 1 & 2, C.P.C. being valid and well-reasoned, Held, could not be interfered with in circumstances. Siddique Mirza for Petitioner. Date of hearing: 16th October, 1990. This revision application is moved by the applicants praying therein that this Tribunal may call for the R & P from the learned Labour Court to consider the legality, propriety and correctness of the order dated 13-10-1990 passed by the learned Presiding Officer, IVth Sindh Labour Court at Karachi, in Petition No.128 of 1990 filed by the applicant under section 34 of the Industrial Relations Ordinance, 1969.

2. I have heard Mr. Siddique Mirza, learned Counsel for the applicants and have also gone through the record filed by the applicants.

3. It appears that the respondents raised certain industrial dispute and communicated the same to the applicant, as required under subsection (1) of section 26 of the I.R.O., 1969. The applicant tried to negotiate the dispute with the respondents, under subsection (2) by issuing them notice to nominate some persons for negotiation, but instead of negotiating with the applicants, the respondents gave a notice of strike under subsection (3) of section 26 of the I.R.O., 1969 and thereafter the matter was taken up by the Conciliator under section 30 of I.R.O., 1969. The applicants raised industrial dispute before the learned Labour Court under section 34 of the Industrial Relations Ordinance, 1969 mainly on the ground, that the respondents have raised industrial dispute mala fidely and further that they have not complied with the procedure laid down under the law as they did not enter into negotiation with the applicants under subsection (2) of section

26. The applicants also moved application under Order 39, Rules 1 and 2, C.P.C. praying that the respondents which included conciliator be restrained from proceeding further in pursuance of the strike notice. This application was rejected by the learned Labour Court, which order is impugned in this revision application.

4. Under subsection (2) of section 26 the duty is upon the employer that he shall try to settle the dispute by bilateral negotiation, but it does not require the employees to attend the notice of meeting by the employer. The question whether the respondents attended the negotiation proceeding or not in response to the notice of the applicants is question of fact, which can be decided only after the evidence is recorded. Even otherwise non-attendance of employees would at the most show, that no settlement was arrived at in the attempt of the employer to negotiate and settle the dispute bilaterally.

5. The notice of strike, according to Mr. Siddique Mirza, was given on 24-9-1990 under section 41(2)(b)(ii) of the Industrial Relations Ordinance, 1969. The proceeding before the Conciliator shall be deemed to have been concluded on the date on which the period of the notice of strike or lock-out expired. The period of notice of strike or lockout under section 28 is 14 days. Therefore, the proceedings before the Conciliator would be deemed to have been concluded after that period. Mr. Siddique Mirza states that the applicants received notice for appearance before the Conciliator on 17-10-1990. However, it is for the Conciliator to decide whether he could legally proceed with conciliation and it is for the learned Labour Court to decide the effect of conciliation arrived at such proceedings after evidence is led before the learned Labour Court with regard to the date of notice.

6. The mere fact, that respondents did not respond to the attempt of the applicants to negotiate under subsection (2) would not prima facie invalidate further proceedings. Mala rides also cannot be presumed unless such evidence is brought on the record. I have gone through the order of the learned Labour Court. It is a valid and well-reasoned order and I see no reason to interfere with the order. Therefore, this revision application is dismissed in limine. M.Y.H./1776/Lb.S? ???????????????????????????????????????????????????????????????????????????? Petition dismissed.