1989 PLP 193 (PLC)

(ii) That the respondent No. 2 failed to read the settlement as a whole but only referred to the provisions m favour of respondent No. 4 and has also failed to take into consideration changed conditions which entitled the petitioner to raise demands even otherwise. (iii) That admittedly one of the demands, namely raising of 50 per cent subsidy payable by the workers for eatables was not covered by the settlement and, therefor, could have been raised and was not covered by prohibition contained in section 46‑A. (iv) That there was no dispute in terms of section 2(xiii) of the I.R.O. before respondent No.

2. On the other hand Mr. Ali Amjad, learned counsel for respondent No. 4 has submitted as follows:‑ (i) That the petitioner had not raised any objection as to the non‑service of the notice before respondent No. 2 and in fact had appeared and participated in the proceedings of the above complaint and, therefore, they cannot raise the above objection now in the writ petition. (ii) That respondent No. 2 has taken into consideration the settlement and has concluded that the lock out was not justified, which was the question within the ambit of section 46‑A of the I.R.O. and there was no change in the condition as alleged. (iii) That the demand for raising of 50 per cent subsidy payable by the workers for eatables was covered by the settlement. (iv) That respondent No. 2 had jurisdiction under section 46‑A of the I.R.O. to entertain the complaint and to grant the relief. Mr. Abdul Hameed Puri in furtherance of his above submissions has referred to the case of Star Textile Mills Ltd., Karachi v. Third Sind Labour Court, Karachi and 197 others reported in 1973 P L. C 376 and the case of Indus Dyeing and Manufacturing Company Workers' Union, Hyderahad and another v. The Government of the Province of Sind through the Secretary, Ministry of Labour and Transport, Karachi and 3 others, reported in 1975 P L C

858. In the former case a Division Bench of the erstwhile High Court of Sind and Baluchistan while construing sections 22(12) and 46‑A(2) of the I.R.O. held that the words "concerned with the dispute" in subsection (2) of section 46‑A shall C over both the Collective Bargaining Agent and a registered Trade Union and the service of notice on the Collective Bargaining Agent and not on other registered Trade Union was not sufficient compliance of the provisions of section 46‑A(2) of the I.R.O. Whereas in the latter case a learned Single Judge of this Court held that before the Labour Court can competently proceed with the matter it has to examine the question whether there has been compliance of the provisions requiring service on the parties in terms of section 46‑A(2) (9) and (10). The above case seems to have no application to the facts of the present case, inasmuch as in the first case it was an admitted position that a registered union was not served with a notice under section 46‑A(2) and in the second case there was no evidence that the parties concerned were served with the notice. In the present case the only defect which has been pointed out by the learned counsel for the petitioner is that under subsection (2) of section 46‑A it has been provided that after completing the enquiry the officer shall serve a notice on the employer and the collective bargaining agent or the registered trade union concerned with the dispute to appear before the Labour Court on a date to be fixed by that Court, but factually the notice was served by the Court for the date of hearing. The object of the above provision seems to be that a party who is' going to be affected by an order under section 46‑A(2) of the I.R.O. should be given notice of the hearing. In the present case the petitioner had not only appeared before respondent No. 2 in response to a notice under section 46‑A A issued by the Court but also participated m the proceedings without raising any objection as to any legal infirmity as to the non‑service of the notice by respondent No.

3. I am inclined to hold that an objection as to the non‑service of a notice required under any provision of a statute is to be raised at the earliest before the D first forum. In the absence of any such objection, it will be deemed to have been waived. I am, therefore, of the view, that the above contention is untenable. Adverting to the above second submission of the learned counsel for the petitioner, it may be observed that he has pointed out that under the settlement respondent No. 4 has agreed to extend full and unreserved co‑operation to the management in maintaining discipline and increasing the production both, qualitatively and quantitatively _ and also extend co‑operation in reducing absenteeism and maintaining cordial labour management relations in the Company, which was breached by respondent No. 4 resulting into a changed condition, which fact respondent No. 2 failed to take into consideration. In my view the question before respondent No. 2 was, whether the lock out declared by the petitioner was illegal or not. Respondent No. 2 on the basis of clause‑,(d) of subsection (1) of section 46 of the I.R.O. (which provides that a strike or lock out shall be illegal if inter alia it is declared, commenced or continued during the period in which a settlement or award is in operation in respect of any of the matters covered by a settlement or award) has declared the lock out in question as illegal as admittedly the question of payment of bonus as well as providing benefits and facilities was covered by the settlement as pointed out by respondent No. 2 in its impugned order. It was also contended by Mr. Puri that instead of resorting to section 38 of the Industrial Disputes Act or section 45 of the 1.R.0. resort was made to section 46‑A of the I.R.O. In my view no exception can be taken to the factum that respondent No. 3 had pressed into service section 46‑A of the I.R.O. If more than one remedies were available, it was the option of the person concerned the Authority concerned to press into service one of such remedies or more, it permissible. As regards the third submission of Mr. Puri, that the raising of demand of 50 per cent subsidy payable by the workers for the eatables was not covered by the settlement, it may be observed that the above contention seems to be devoid of any force as sub‑clause (c) of clause (4) of the settlement provides that the Company shall continue to provide facilities and benefits which are at present being availed and enjoyed by the employees under any Agreement, Settlement, Award, Custom, Usage and/or Practice etc. The raising of demand for 50 per cent. of the subsidy payable by the workers for eatables m fact is in negation of the above agreed clause in the settlement and cannot be said to be out side the settlement. The fourth contention in my view is not germane to the point in issue. The basic question was whether the lock out was illegal or not, which question was admittedly covered by section 46‑A and, therefore, respondent No. 2 could have granted the relief through the impugned order. It may be observed that factually the petitioner had lifted the illegal lock out in pursuance of the impugned order but are seeking declaration m order to nullify the effect of the illegal lock out for the period during which it remained in the field.

4. The petition has no merits and, therefore, it is dismissed but there will be no order as to costs. These are the reasons in pursuance of a short order of even date. M.Y.H./H‑101/K Petition dismissed.