S. C. SUBJALLY Versus IQBAL HUSSAIN

The five accused who are workers of Messrs Corning Glass Pakistan i Limited, a firm manufacturing pharmaceutical items, stand charged for having committed unfair labour practice by instigating other workers of the said Establishment to commence illegal strike, adopting go‑slow tactics and compelling the employer to accept their (the workers') demands through demonstrations, raising of obscene slogans, and beating of drums etc.

2. The facts of the ease as alleged by the prosecution are as under:

All the five accused were engaged as workmen by the above‑mentioned firm, which is engaged in the production of vials and capsules for pharmaceutical industry. Four out f them; namely, lqbal Hussain, S. A. Hashmi, Javed Iqbal and Mohammad Saleem are office‑beaters, while the fifth accused namely lqbal Quadri is a member of a Trade Union formed by the workers of the said Establishment which is said to be the only Union within that Establishment. On 9th June 1975, accused S. A. Hashmi. in his capacity as General Secretary of the Union, sent a notice under section 26(1) of the I. R. O. to the Management, together with a list of demands raised by the Union. This was followed by a notice of strike on 25th June 1975. On 26th June that is, the next day, the accused along with other workers, started intimidating and coercing the Management by beating drums, raising obscene slogans and using abusive language against senior officers belonging to the Management. They also made forcible entries into their offices. The accused further instigated other workers to start go‑slow tactics in the factory with the result, that there was a substantial fall in the production. The conciliation proceedings, which had in the meantime commenced between the Union and the Management ultimately ended in a failure. The result was, that the accused and other workers did come to the factory on 21st July 1975 but struck work. On 22nd July that is the next day, Mr. M. R. Ghori, the then Deputy Director, Labour 3 Welfare visited the factory and took stock of the situation himself. The Management in the meanwhile had addressed a series of letters to the Union as well as the authorities concurred, but to no advantage. A telegram was also addressed to this regard to tile National Industrial Relations Commission at Islamabad. Finally, the present complaint was lodged by the Administrative and Personnel Manager P. W. I on 2nd August 1975.

3. The accused in their respective statements recorded under section 342 of the Code of Criminal Procedure have admitted to have resorted to strike, but according to them, it was a valid strike within the provisions of law. The other allegations in regard to go‑slow and other coercive methods said to have been adopted by them to compel the Management to accept their 'demands, have however been denied by them. They have examined one witness in their defence.

4. This gives rise to the following points for determination:

(i) Whether the accused and other workers resorted to an illegal strike in the said Establishment;

(ii) Whether the accused instigated the other workers to resort to go‑slow tactics; and

(iii) Whether the accused adopted coercive methods like slogan raising, beating of drums, use of abusive language etc. to compel the Manage ment to accept their demands. I shall now refer to each one of them separately.

5. In regard to the allegations of illegal strike, the Management has examined S, C. Subjally, their Administrative and Personnel Manager (P. W. 1) and Mr. M. R. Ghori, Deputy Director, Labour Welfare, Karachi (P. W. 2). P. W. 1, according to his evidence, had received a letter (Exh P/A) from accused S, A. Hashmi which the latter had signed as General Secretary of the Union, namely "Corning Glass Employees' Union". The witness thereafter wrote two letters to the accused, Exh. P/B and Exh. P/C, enquiring from him whether the change of his name as General Secretary of the Union had been approved by the Registrar of Trade Unions, but the said letter was not replied to by the accrued. On 9th June 1975 the witness received a notice under section 2 (1) of the I. R. O. together with the said demands (Exh. P/D) which was followed by a notice of strike (Exh. P/E) wherein the Union had proposed to commence strike from 10th July 1975. Thereafter, the conciliation proceedings followed. At the meetings, the Management took some legal objections with regard to the Union's locus standi to raise the Industrial dispute but however, the conciliation proceedings continued. On failure of the ‑said proceedings the Union commenced strike from 21st July 1975. The workers came to the factory and punched their cards but they refused to work. An intimation of this was sent to M. R. Ghori, Deputy Director, Labour Welfare who visited the factory on 27th July 1975. The strike continued till 6th August 1975, after which it was called off at the intervention of the National Industrial Relations Commission.

6. According to the next witness, Mr. Ghori, P. W. 2, he acted as a conciliator between the Management and the Union and held meetings between the parties, which ultimately ended into a failure.

7. The first ground urged by the prosecution is, that the strike observed by the accused and, other workers was illegal. This is based on two grounds (i) The General Secretary of the Union had no locus standi to give notice of strike as his election as General Se.‑retary was not approved till then by the Registrar of Trade Unions, arid (ii) the Union itself had no locus standi to rise the Industrial Dispute as it was not certified as a Collective Bargaining Agent by the Registrar under section 22(1) of the I. R. O.

8. In this respect Mr. Mahmood A. Ghani the learned representative of the complainant has referred to the Industrial Relations (Sind) Rules, 1973, which have been framed by the Government of Sind, under section 66(2) of the I. R. O. Rule 68 thereof provides:

"68. Notice of strike or lock‑out.‑A notice of strike served under subsection (3) of section 26 shall he in the form 'U' . . . . . :'

Form 'U' requires the notice of strike to be signed by the general secretary of the Collective Bargaining Agent. The learned representative of the complainant has contended that since the notice of strike was signed by a person who had no authority under the law any strike which was subse quently based on such a notice was also illegal.

9. Form 'U' referred to above no doubt shows that a notice of strike 11 to be signed by a General Secretary of the Union, but these provisions, to my mind, are only directory and not obligatory. The I. R. O. only requires a Collective Bargaining Agent to give a notice of strike, which means that it should be signed by a person authorised to act on its behalf. Since accused S. A. Hashmi was the duly elected General Secretary of the Union and had fully authority to act on its behalf, as far as the Union was concerned, in my opinion, his signature on the notice was a substantial fulfilment of the said provisions of law.

10. As far as the question of the approval of the change of accused S. A. Hashmi's name as General Secretary is concerned. I may refer to subsections (4) and (5) of section 8 of 1. R. O. which are as follows:

"(4) Notwithstanding anything contained in any other provision of this Ordinance, every alteration made in the constitution of a registered Trade Union and every change of its officers shall be notified by registered post by the Trade Union to the registrar within fifteen days of such change.

(5) The Registrar may refuse to register such change or alteration if it is in contravention of any of the provisions of this Ordinance, or if it is in violation of the constitution of the Trade Union."

The perusal of these provisions shows that according to subsection (5) the Registrar has the power to refuse to register the change under the circumstances mentioned therein, which means that till the change is approved by him, the matter has not been finally closed and the change cannot become effective. An aggrieved party can file an appeal only in case the change has not been approved by the Registrar. (See subsection (7) of section 8)., According to the evidence of P. W. I and P. W. 2, the said change in the name of General Secretary was finally recorded by the Registrar in April 1975, which was after a lapse of a full one year. In this respect. I may refer to a Decision of Labour Appellate Trihunal, Sind in Employees' Union v. Messrs Bukhari Hotel (1975;P L C 768), wherein it was held that recording of such a change by the Registrar of Trade Unions was a condition precedent for its effectiveness and not a mere formality.

11. I do not think that this rule must be followed with the same amount of rigidity in the instant case. In the ease decided by the Labour Appellate Tribunal, Sind the Union which formerly included only the employees of Bukhari Hotel had amended its constitution and extended its membership also to the employees of Bombay Sweet Shop. The change which was in the very constitution of the Union was therefore of a fundamental nature. In instant case, the change was only in respect to an office‑bearer, which was not disputed by any other member of the Union of even the employer at least till such time as notice under section 26(1) of the 1. R. O. was served upon the Management. It was therefore, a change of routine nature. If the same rule, which was laid down in the above‑cited case was to apply in the instant case, then the Union would have been compelled to function for an year without a General Secretary. Here it was a question of only one office bearer, but one can well imagine a case when all the officers of a Union are newly elected. The facts of the instant case, according to me are therefore, distinguishable. Under the circumstances, the notice of strike, which was served by the Union was not Illegal on the above said grounds.

12. The complainant has also disputed the right of the Union itself to raise industrial dispute, as according to the stand taken by the former, theta Union did not enjoy the status of a Collective Bargaining Agent, as it had not been certified by the Registrar of Trade Unions as such.

13. It has come in the evidence of P. W. I that check‑off system was being practised in the said Establishment at the relevant time. According to section 23 of the I. R. O, at the request of a Collective Bargaining Agent, the employer of the workmen who are members of a Trade Union can deduct from their wages such amount towards their subscription to the funds of the Trade Union as may be specified, with the approval of each individual workman. One thing that is clear from this is, that said Union was being recognized as a Collective Bargaining Agent by the Management, because, under section 23 of the I. R. O. it is only a Collective Bargaining Agent which can authorise such deductions as referred to above. In this respect it is necessary to refer to section 52 which provides as follows:

"52. Performance of functions till Collective Bargaining Agent as certained ‑Any act or function which i9 by this Ordinance required to be performed by or has been conferred upon a Collective Bargaining Agent may, until a Collective Bargaining Agent has been certified under the provisions of this Ordinance be performed by a registered Trade Union which has been recognised by the employer or employers"

Section 52, prior to the amendment of section 22(1) of the I. R. O, applied only in a case where there were more Trade Unions than one in an establishment or a group of establishments because a single Trade Union at that time, within such establishment or a group was deemed under section 22(1) of the I. R. O. to be a Collective Bargaining Agent. After the amendment of section 22(1) a corresponding amendment was also made it section 52 and the word "certified" was substituted therein in place of "ascertained". This amendment has brought about only one material change in section 52, that now a single Union cannot function as a Collective Bargaining Agent without being certified by the Registrar of Trade Unions as such, unless it is recognised by the employer for that purpose. But once a Union has been recognised by the employer, it can function as a Collective Bargaining Agent irrespective of any certificate for that purpose from the Registrar. The words, "until a Collective Bargaining Agent has been certified under the provisions of this Ordinance" in section 52 would mean, in case there are more Trade Unions than one, until such time, as one of them applies to the Registrar of Trade Unions for a referendum and one of them is consequently certified as a Collective Bargaining Agent, and in case of a single Union, until such time as it applies to the Registrar for being certified as a Collective Bargaining Agents because in that case, it can function as such in its own right Irrespective of any recognition by the employer. In this respect I may refer to a Decision of Labour Appellate Tribunal. Sind In Alwin Silk Mils Workers' Union v. The Management, S.1. T. E., Karachi (1977 P L C 427), wherein a contrary view has been taken. It has been said:

"Since by amendment (of subsection (1) of section 22) the certificate from the Registrar became necessary even in case of a single registered Trade Union, section 52 was simultaneously amended and it was laid down that only a 'Collective Bargaining Agent' as certified by the Registrar of Trade Unions could function as such. This was intended to meet contingency when an application had been made to the Registrar after the amendment of section 22 and it was still pending."

The words within brackets in the above quotation are mine.

14. With all the respect that can be shown for the above view, I am unable to agree therewith. The provisions of section 22 of the I. R. O. first of all, nowhere suggest that they are obligatory. On the contrary they appear to be enabling and resort to them can be taken only when the necessity arises. The Tribunal has held that the provisions of section 52 were intended to meet a contingency where an application had been made to the Registrar of Trade Unions after the amendment of section 22 of the I. R. O. and it was still pending. In my humble view such an intention can hardly be gathered from the language of section 52. As has been said in Maxwell on the Interpretation of Statute. Tenth Edition, page 13 "We are not entitled to read words into an Act of Parliament unless clear reason for it Is to be found within the four corners of the Act itself." Reference may be made, in this respect to an earlier decision of the Labour Appellate Tribunal. Sind, in Workers' Union v. Indus Chemical and Alkalies Ltd. (1971 P L C 516), wherein it was said:

"I cannot read subsection (2) of section 22, already reproduced, to mean as casting any duty on any of the Unions to apply to the Registrar to hold a secret ballot. It appears to me, that the language of subsection (2) of the Ordinance is only permissive and not mandatory. It is to meet a situation like this where none of the Trade Unions apply to the Registrar for a ballot that section 52 of the Ordinance comes into operation. If the ingredients of section 52 of the Ordinance are fulfilled by any of the Unions, it can perform the functions of a Collective Bargaining Agent."

I find myself in respectful agreement with the above view.

15. Under the circumstances I bold that the strike observed by the Union, of which the accused were the members or office‑bearers, was a valid strike within the provisions of the I. R. O. and as such, according to me, no contravention of section 16(1)(e) took place.

16. Next coming to the allegations of go‑slow, we have on this point the evidence of the Administrative Manager P. W. 1 and Ashraful Haq Production Manager P. W.

3. According to P. W 1, the accused and other workers of the said Establishment at their instigation had slowed down the production in spite of a Settlement in this regard (Exh. P/C Il), according to which, the Union had agreed to achieve certain targets in the production. This happened during the course of negotiations, which continued between the Union and the Management, after the notice under section 26(1) of the I. R. O. was served by the former. A chart (Exh. P/F) was also prepared by P. W. 3 in consultation with P. W. 1 which showed a substantial fall in the production in the Factory. The witness further asserted that he saw the accused actually instigating the other workers to slow down the production, accused Iqbal Quadri being the only exception in this respect. Such a state of affairs continue3, according to the witness, between 9th Jane and December 1975 The Management also sent a telegram to this Commission in this respect which is Exh. P/H. A letter Exh P/J was also written to the Director of Labour Welfare complaining about the above said incidents, and a circular (Exh. P/K) directing the workers to refrain from coercive and intimidator tactic3, was also issued. Two more letters Exh. P/L and Exh. P/N, were also sent to the Union in this regard which were received by accused Javed Iqbal and S. A. Hashmi respectively. The witness has farther confirmed that there was no technical defect in the machinery at the relevant time which could be responsible for the low production.

17. This evidence of P. W. 1 has found full support from the Production Incharge of the factory P. W. 3.

18. Although, evidence has been adduced by the Management to show that there was an organised go‑slow between June and December, 1975 but this evidence by itself is not sufficient to incriminate the accused. Even if there was a go‑slow in the Factory, its responsibility can hardly be narrowed down to the accused. An assertion, though, has been made by the witnesses that they actually saw the accused instigating others to slow down the production but this evidence does not only appear to be improbable but also absurd on the very face of it. Even if the accused had acted in furtherance of go slow that they could not have done in presence of the said prosecution witnesses who were their officers. There being no other evidence on the point to show that the accused had any hand in the go‑slow, the prosecution have failed to discharge the burden of proof which rested heavily and squarely on their shoulders.

19. Finally, I come to the allegations of drum‑bating, slogan‑raising, use of abusive language and other coercive methods alleged to have been adopted by the accused to pressurise the Management to accept their demands. On this, there is again the evidence of P. W. 1 and P. W.

3. According to P. W. 1 the five accused after serving notice of industrial dispute and the charter of demands upon the Management, raised obscene slogans beat drums, displayed placards with abusive language written on them, sad made forcible entries Into the office of their officers. The Management and a telegram fin this connection to this Commission, copy of which is Exh. P/H. A letter (Exh. P/J) to which I have already referred, was also addressed to the Deputy Director, Labour Welfare which contained a complaint in this behalf against accused S. A. Hashmi and other workers. A copy of this letter was handed over to the said accused and his signature was obtained on Exh P/J in token of its receipt by him. Thereafter, the Management issued a circular on 27th June 1975 (Exh. P/K) a copy of which was made over to accused Javed Iqbal, which was followed by another letter (Exh P/L) in the same connection. The evidence given by P. W. 1 in this respect has been fully corroborated by P. W. 3 in all material respects.

20. The question is how far this evidence is incriminating? In the telegram (Exh. P/N) which was seat to this Commission, it was only alleged that the Union, of which the accused were members was indulging in slogan raising, drum‑beating etc. there being no mention of any names of the persons responsible therefore. In any case, since it was only a telegram, it was not supposed to contain full particulars and for that matter, a list of the names of all the accused. In the letter, which was addressed to the Deputy Director, Labour Welfare, Exh. P/1, only the name of accused S. A. Hashmi was mentioned in this respect and it was said that be was actively participating and fully conniving at the said acts of coercion. As I have already said above that a copy of this letter (Exh. P/J) was also handed over to accuse] S. A. Hashmi and his signature obtained on the said Exh. in token of its receipt, it is pertinent to note, that he did not make any attempt to rebut the allegations contained in Exh P/J by either sending a reply to the management or writing a letter to the Directorate of Labour Welfare. In any case, the documentary evidence, coupled with that of the two P. Ws., according to me, proves beyond any doubt that accused S. A. Hashmi was guilty of the alleged acts of drum beating, slogan‑raising ate. As far as the rest of the accused are concerned, a question arises which one or how many of them took part in the said acts of coercion along with accused S. A. Hashmi. If they had taken equal part with accused S. A. Hashmi then three out of them being important office‑bearers of the Union, their names should have been mentioned in the letter (Exh. P/J). Not only that, but there is an admission in the cross‑examination on the part of P. W. 1 that he had made a complaint in respect of the incident to the police as well, but the said complaint did not specifically mention the names of the accused. The said complaint has however, not been brought in evidence by the prosecution. Under these circumstances, it becomes doubtful as to how many of the other accused took part in the alleged incidents. In a case, such as the instant one, where the tempers of the parties rise high and lot of bitterness is caused between then, a duty is always "cast upon the Courts to proceed with utmost caution while sifting the evidence. Since there is no other independent evidence to corroborate that of P. W. 1 and P. W. 2 I find it highly unsafe to rely upon their sole 10version specially in view of the documentary evidence produced of the prosecution on the point As far as accused S. A. Hashmi is concerned, his case is distinguishable from the rest of the accused. There is also nothing in the evidence of the only defence witness produced by the accused to rebut the prosecution allegations against accused S. A. Hashmi. The evidence adduced by the prosecution in respect of him therefore, cannot be brushed aside.

21. I therefore find accused S. A. Hashmi guilty of attempting to compel the employer, alongwith some other workers, by use of coercion to accept the said charter of demands given by the Union to the Management," which amounted to contravention of the provisions of section 16;(1)(d) of 'the 1. R. O. which is punishable under section 53 of the same, and convict him. I sentence him to undergo rigorous imprisonment for a term of one 'month. As far as the rest of the accused are concerned, since the prosecution have failed to prove their case against them beyond a shadow of doubt, I give there a benefit of doubt and acquit them.

22. Before parting with this case, I may point out that, although, section 53(3) of the 1. R. O. only prescribes a term of imprisonment without describing its nature, but clause (‑/6) of section 3 of the General Clauses D Act, 197 explain that "'imprisonment' shall mean imprisonment of either description as defined in the Pakistan Penal Code." This shows that I am within my powers to award rigorous imprisonment to the accused.

Order accordingly.