1976 PLP 259 (PLC)

3. The other category is that of the workers who are the members of the respondent‑Union. They lay tracks, use machines to undercut the salt surface and do haulage of the tabs full of salt from inside the mine to the ground level. The, unload salt from the tubs and load it in the railway wagons. They also maintain machines. Same of theca work as coolies and peons. They are on daily basis.

4. The rights of the Miners were regulated by Standing Orders issued by the Assistant Labour Commissioner (Central) under the Industrial Employment (Standing Orders) Act, 1946 on 8th February 1955. These were enforced on 10th March 1955, whereby the hereditary rights of the Miners to carry on this job was recognised. A son or a brother of the deceased Minor takes his place. He is obliged to maintain the family of the deceased Minor as well. These rights were protected under section 9 of the Industrial and Commercial Standing Orders Ordinance, 1960 as well under section 9 of the West Pakistan Industrial and Commercial Employment Standing Orders Ordinance, 1968.

5. On 9th August 1973 respondent No. 1 sent a notice of demands to the petitioner. The demands were not only with regard to the workers of the respondent‑Union but also for the Miners. During the negotiations, the Miners Union specifically directed the respondent not to negotiate with regard to their demands. Consequently, the petitioner and respondent No. 1 reached a settlement on 12th September 1973, hereby some benefits were given only to the workers. This settlement according to its terms was to enure for a period of two years.

6. On 29th March 1974, the Miners also raised their demands and accordingly sent a notice under section 26 of the Industrial Relations Ordinance, 1969. They also sent a notice of demands under the same provisions on 9th April 1974. The petitioner informed the Miners Union on 12th April 1974, that their action was unlawful and that they should refrain from going on strike. The Assistant Director Labour Welfare, Gujrat, also wrote a letter dated 13th April 1974, informing the Union that their notice was illegal and directed them not to strike work. The petitioner also wrote a letter dated 15th April 1974 to Mr. Alauddin, the Additional Secretary, Ministry of Production, Government of Pakistan, requesting him to refer the dispute to the National Industrial Relations Commission (hereinafter referred the Commission). Mr. Alauddin, however, heard the parties himself and, directed the petitioner to increase the rates of excavation from 50 paisa to 90 paisa per maund in case of salt. In case of Khallar (waste salt) the rates were increased from 50 paisa per maund to 75 paisa. An agreement dated 30th April 1974 was then executed between the petitioner and the Miners under the above settlement.

7. On 12th June 1974, i.e. 9 months after the previous settlement the respondent‑Union sea; a notice of demand under section 26 of the

1. R. O. to the petitioner. On 19th June 1974, the respondent‑Union struck work under section 26(3) through no notice with regard to it was given. It remained on strike till 9th July 1974. However, on 3rd July 1974, the Federal Government referred the dispute to the National Industrial Relations Commission (hereinafter called the Commission). It was entered as Case No. 9(5)/74 and notices issued to the parties. On 2nd September 1974, the parties held their statements of claim and reply. The respondent‑Union was directed to produce on the next date its evidence whereas the petitioner was directed to produce a copy of the previous settlement dated l2th September 1973. The case came up before the Chairman of the Commission on 12th Septem ber 1974. No evidence was produced by the respondent. Arguments were, therefore, beard partly and the case was adjourned to 30th September 1974. On 15th October 1974, the petitioner's counsel raised an objection to the validity of the reference. The case was, therefore, adjourned to 2nd November 1974, for the arguments of the learned counsel for the respondent who was not present on that day. The case was then adjourned to 21st December 1974, to be beard at Khewra. There the Chairman acquainted himself at the spot with the working of the mines and the job being done by the workers. This case was again heard on 10th February 1975, and finally on 12th March 1975, when the learned Chairman gave an award in favour of the workers. He felt there was a justification for an increase in the wages of workers excluding the Miners by 50% with effect from 1st May 1974. No pronouncement on the validity of the reference was made.

8. The petitioners filed an appeal before the Full Bench of the Commis sion comprising of three members. This also failed on 1st August 1975, and hence the present writ petition.

9. It is contended by the learned counsel for the petitioner that the Commission had no jurisdiction to entertain or adjudicate upon the reference as the same did not lie before it. Reliance was placed on section 22‑A(8)(c) wherein it is laid down that the Commission shall be entitled to adjudicate upon a reference made to it by the Central Government, if the dispute, in the opinion of the Federal Government, was of national importance. Section 22‑A(8)(c) is as under :‑ 22‑A(8). The following shall be the functions of the Commission, namely :- (c) to adjudicate and determine an industrial dispute to which an industry‑wise trade union or a federation of such Trade Unions is a party and any other industrial dispute which is in the opinion of the Central Government, of national importance and is referred to it by that Government. According to the learned counsel the pre‑requisites to the exercise of this power by the Federal Government are contained in section 32 of the I. R. O. It reads as follows:-

32. Strike and lock‑out.‑(1) 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 under section 31 the workmen may go oil strike or, as the case may be, the employer may declare a lock‑out on the expiry of the period of the notice under section 28 or upon a declaration by the Conciliator that conciliation proceedings have failed, whichever is the later. Section 32(2) provides that the Federal Government may, with respect to a strike or lock‑out relating to a dispute, which the Commission is competent to adjudicate and determine, prohibit a strike if it lasts for more than thirty days. Under proviso to this section, the Federal Government may prohibit a strike or lock‑out at any time before the expire of thirty days if it is satisfied that the continuance of such a strike or lock‑out is causing serious hardship to the community or is prejudicial to the national interest. Under section 32(3) the Federal Government is obliged to refer the matter to the Commission, where it prohibited a strike or a lock‑out. Under subsection (4) the Com mission has to decide the dispute within 30 days after giving both the parties an opportunity of being heard.

9. The provisions referred to above go to show that the Federal Government is empowered to refer a case to the Commission only if‑ (a) it consider to be either causing serious hardship to the community or is prejudicial to the national interests; (b) in such a case before doing so, it has to first prohibit the lock‑out or the strike and then immediately refer the matter to the Commission for its decision. It is this gravity of the situation and the necessity of application of temporary corrective measures that oblige the Federal Government to act. Admittedly, in the present case, the Federal Government did not prohibit the strike. This means that the Federal Government never thought that there was a situation wherein it should intervene. In the circumstances, it is argued that inter vention by the Federal Government, in a situation, which did not call for an immediate action of stopping the strike to avoid serious hardship to the community or prejudice to the national interest, by way of referrina the dispute to the commission, was ultra vires of its powers Reliance was placed on the case of Birandra Mohan Das v. Aminuddin Malik (1970 S C M R 304s) where it was held that in order to attract validity, an action must fulfil conditions of the statute. Similarly, in R. Paddington etc. ((1949) 1 K B 666), it was ruled that if essential requirements to the exercise of jurisdiction have been disregarded, a certiorari may be awarded.

10. Mr. M. A. Khadim, the learned counsel for respondent No. 1 submitted that the provisions of section 22‑A(8)(c) are not subject to section 32 and, therefore, the matter could have been decided by the Commission even without a reference by the Federal Government. He relied on section 22 A(9) to say that as the Commission could even suo motu consider this case, the award may not be set aside on that score. He however, admitted that the Commission in this case had neither started the proceedings suo motu nor on an application by any other party. Rather it rejected the objection of the petitioner on the ground that the Commission could not go into the validity of the reference. In view of this, I do not thick that the contention raised by the learned counsel is correct. The argument of the learned counsel also runs counter to the scheme of law. Functions of the Commission are given in section 22‑A!8). There are, however, separate procedure and other requirements for the performance of such functions in the other provisions of the Act. for example the Commissioner has the power to frame regula tions under section 22‑F with regard to its functions. One of its function of promotion and formation of Trade Union and federation of Trade Union is regulated by sections 6, 7, 8 and

20. The determination of Collective Bargaining Agent is also covered by section

17. Clause (c) of section 22‑A(8) speaks of reference by the Federal Government. How and under what circumstances the reference can be made is given only in section

32. These B pre‑requisites to the exercise of this power therefore, must have been there before the Federal Government could exercise the power. It is now well established that when a statutory functionary is empowered to exercise its power in a particular way, it must exercise that power in that way or not at all. Reference may be made to Nazir Ahmad v. Emperor (A I R 1936 P C 253) and W. P.I C Province v. Jamshed Miran (P L D 1965 Lah.729).

11. The award shows that the attention of the Chairman of the Com mission was specifically drawn to the objection that the reference was illegal but he refused to go into it on the ground that as the Central Government had made the reference, he bad no jurisdiction to go into its vires. The appellate Tribunal also did not consider this aspect of the matter on similar grounds. It is true that a Tribunal cannot go into the vires of an enactment' under which it has been created but certainly it is its duty to determine if it has the jurisdiction in the given situation. Reference be made to the judgement (if the Supreme Court in Mehr Dad v. Settlement & Rehabilitation Commissioner (1). It is now for this Court to make an enquiry to find out of the facts and circumstances necessary for the exercise of the jurisdiction did rust before the concerned functionary passed his order as held by the Supreme Court in Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (2). As admittedly the Federal Government never prohibited that strike, I am constrained to hold that the very reference of the matter by the Federal Government under section 32 to the Commission was unlawful. The award is thus void and inoperative.

12. The learned counsel for the petitioner then urged that existence of a valid dispute is a pre‑requisite to the exercise of jurisdiction by any Tribunal under the I. R. O. He referred to section 43 which provides that no industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner by the Collective Bargaining Agent or an employer. According to section 2(xix) the word 'prescribed' means prescribed by rules. There are, how ever, no rules framed on this point. What is a dispute has not been defined in this ordinance. According to the dictionary dispute means a quarrel, a contest with words etc. Section 26 however, deals with negotiations relating to differences and disputes. It provides as follows:--

26. Negotiations relating to differences and disputes.‑(1) If at any time an employer or a collective bargaining agent finds that an industrial dispute has arisen or is likely to arise, the employer or, as the case may be, the collective bargaining agent, may communicate his or its views in writing either to the Works Council or to the other party so, however, that, where the views are so communicated to the Works Council, a copy of the communication shall also be sent to the other party. (2) On receipt of the communication under subsection (1), the Works Council or the party receiving it shall try to settle the dispute within ten days of the receipt of the communication by bilateral negotiations, and, if the parties reach a settlement, a memorandum of settlement shall be recorded in writing and signed by both the parties and a copy thereof shall be forwarded to the Conciliator and the authorities mentioned in clause (xxiv) of section 2. (3) Where a settlement is not reached between the employer and the collective bargaining agent or, if the views of the employer or collective bargaining agent have been communicated under subsection (P L D1974 S C 193) to the Works Council, there is a failure of bilateral negotiations in the Works Council, the employer or the collective bargaining agent may, within seven days from the end of the period referred to in subsection (P L D 1965 S C 698), serve on the other party to the dispute a notice of lock‑out or strike, as the case may be, in accordance with the provisions of this Ordinance According to these provisions the employer or the Collective Bargaining Agent, in case of any dispute, must communicate its views in writing either to the Works Council or the other party. In case these views are communicated the Works Council a copy of it is to be sent to the other party. On receipt of communication as stated above, the Works Council or the party receiving the communication shall try to settle the dispute within 10 days of the receipt of the communication by bilateral negotiations. If the parties reach a settlement it has to be recorded in memorandum of settlement to be signed by both the parties. Copies of this settlement are to be sent to the conciliator and other authorities mentioned in section 2(xxiv). Under sub section (3) where a settlement is not reached between the employer and the Collective Bargaining Agent or the bilateral negotiations in the Works Council fail between the parties the employer or the Collective Bargaining Agent are required to serve on the other party to the dispute a notice of lock‑out or the strike, as the case may be, in accordance with the provisions of this Ordinance. According to section 28 the notice of lock‑out or strike is to be of 14 days. There may be conciliation between the parties through a conciliator appointed by the Provincial or the Federal Government. Further there may be even an arbitration. However, if no settlement is arrived at during the course of conciliation or arbitration proceedings the workmen may go on strike or the employer may declare a lock‑out on the expiry of the period of notice under section 28 or on a declaration by the conciliator that concilia tion proceedings have failed. It is only thereafter that the parties may go to the Labour Court for adjudication of the dispute. However, if the strike or the lockout lasts for more than 30 days, then the Federal Government, if it relates to a dispute which the Commission is competent to adjudicate and determine, and the Provincial Government, if it relates to any other dispute, may prohibit the strike or the lock‑out under section 32(2). The strike may also be prohibited under proviso to this subsection even before the expiry of 30 days by the two Governments but, in such a case, the dispute shall be forthwith referred to the Commission. The scheme of the Act as referred to above, therefore, has a very elaborate built in mechanism to settle the dispute without causing any dislocation in the industry. A strike can thus be valid and lawful only if it has come about in accordance with and in the situation as envisaged by law. No party can, therefore, lawfully resort to a particular provision of law without seeking recourse to other provisions which precede it. Admittedly in this case the procedure leading to strike notice as laid E down in section 26 was not followed. Even no notice of strike was given. As discussed above, the law provided a complete procedure for the settlement of such a dispute and it could not be shortcircuited. The right to strike is one of the links in that chain of procedure and it can come into play only in its sequence. The mode as laid down in the law thus must be followed strictly as held in Muhammad Ayub Khan Khattak v. S. M. Ayub etc. (P L D 1972 Pesh. 151) and Mian Abdul Majid etc. v. The Chief Administrator of Auqaf, West Pakistan Lahore (P L D 1972 Lab. 66). Reference may also be made to the following observations of the Supreme Court in Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore (P L D1971 S C 61):‑ It is well settled that the neglect of the plain requirements of a statutory enactment, which prescribes how something is to be done, will invalidate the thing being done in some other manner if the enactment is absolute but not if it is merely directory. The real question which thus arises for consideration is when an enactment is to be considered as absolute and when as merely director? It is not possible to lay down a general rule of universal application in this behalf, but the one which is suggested by reported authorities in this connection is the affirmative or negative character of the language in which the provision is couched. If it is negative, that is to say, if the statute enacts that certain action shall be taken in a certain manner and in no other manner, it has been held that the requirements are absolute and that neglect to attend them will invalidate the whole procedure. If, on the other hand, the language is affirmative, it may be considered as a directory provision. Nonetheless, it appears that in several reported English cases, it has been held that an enactment, prescribing the formalities which are to be observed for validating an action, are not absolute, although expressed in negative or prohibitory language. The procedure of section 26 of the Industrial Relations Ordinance was held to be mandatory in a recent Karachi case Employees' Union v. Monnoo Motor and another (P L D 1975 Kar. 811). Further mode of doing it in that particular way is also mandatory in view of the fact that such actions affect the national economy and the society as a whole. The view of the Labour Tribunals is unanimous that no industrial dispute shall be deemed to exist unless it has been raised in accordance with law which seems to be correct. IL was held in Natural Gas, Fertilizer Factory v. Natural Gas Fertilizer Factory Labour Union (P L h 1966 Lab. 637) that a valid notice of strike must precede the strike and that the resort to strike without following the procedure laid down in section 26 was illegal, I, therefore, hold that as there was no valid dispute existing at the relevance time the very reference by the Federal Government and the award thereon are unlawful.

13. The next point requiring consideration is whether the respondents were entitled to serve a notice of demand only 9 months after the previous settlement. According to section 39 a settlement is binding on all the parties to the dispute. In this case it bound the parties for two years in accordance with section 40(2). Section 46 makes any strike or lock‑out illegal if it is undertaken within the settlement period. The same view was taken in M. M. Ispahani Ltd. v. Ispahani Company Office, Employees' Association (P L D 1960 S C 151). Mr. M. A. Khadim, the learned counsel for the respondents admitted that normally this could not be done as the previous settlement was valid for 2 years. He, however, submitted that a premature notice of demand had been necessitated due to drastic changes brought about by the petitioner in its settlement with mines' Union. The argument on the face of it is not sound. The first raise in this case was allowed to the respondents and the miners at their asking were kept out of that deal. The respondents also did not object to the attitude on the part of the miners. They, therefore, shall be deemed to have agreed that the petitioner may settle with the, two parties separately. Thus after the settlement with the respondents the miners took up their case. That also resulted in a settlement which according to the respondents gave the miners far more favourable conditions. It is thus quite clear from the above that the respondents themselves created a situation in which a settle ment with the miners had to come up separately and later. This in itself therefore, could not afford a reasonable ground for a notice of demand. The second point to be considered is whether the change of conditions of the miners was proportionately very high so as to incite the respondents to come up with their demand. Firstly, I do not think that such a situation should have given rise to a demand by the respondents as the type and conditions of work in the two sets of persons are entirely different. The miners use their own material and their helpers are paid by them. The payment to them, however, is on the basis of their output. The respondents on the other hand are given time‑rites. In any case, leaving this aspect aside, we do not think the Commission visualised an objective situation necessitating 1 any increase in the existing wages. According to the respondents the income of a miner after the settlement dated 30th April 1974 came to Rs. 755 p.m. though according to the petitioner it was Rs.

684. The learned Chairman of the Commission himself worked out that a miner must be spending a sum of Rs. 340 p m. on the material that he used in mining salt. This left him with a sum of Rs. 415 p.m. on the basis of the income disclosed by the respondents. This amount is for two persons i.e. one miner and a helper. Thus if this amount is to be shared equally between the two, the miner will get only Rs. 207.50 p.m. If on the other hand, the miner got his income equal to a worker of the respondents, the helper would get only Rs. 161 p m. and vice versa. Thus the income of the miner is between Rs. 254 and Rs. 161 p m. as compared to that of the worker of the Respondent, who gets Rs. 254 p.m. This situation could have justified any interference by the Commission at all. The Commission left his calculation half‑way. There is thus an error apparent on the face of the record. In view of the above, even the sub sequent settlement with the miners did not create a situation of any alarm what to talk of necessitating the raising of a dispute or justifying an interference by the Commission to ignore or by‑pass the previous settlement. I may mention here that this Court is justified to inquire into the jurisdictional facts in view of the Supreme Court judgment referred to in part 11 above. For what has been stated above, the order passed by the Commission is declared to be without lawful authority and of no legal effect, leaving the parties to bear their own costs. Petition accepted.