NICHIMEN COMPANY EMPLOYEES' UNION, KARACHI Versus NICHIMEN CORPORATION, KARACHI , Qurban Ali Abbasi
DECISION
This appeal calls in question the order of the Labour Court No. IV allowing the application riled by the respondent No. 1 under section 34 of the I.R.O., 1969. The circumstances in which it arose in brief are as follows.
2. On or about 12‑3‑1986 the Union had given a notice under section 26(1) of the I.R.O., 1969, accompanied by a Charter of Demands. It was followed by a notice of strike and the matter came up before the Conciliator. As the dispute raised could not be resolved between the parties even there, the Assistant Director of Labour had issued a Failure Certificate and the Union approached the Labour Court under section 32(1) of I.R.O., 1969, for adjudication.
3. While the proceedings were pending before the Labour Court the parties eventually concluded a Settlement among themselves on 15‑8‑1988. The duration of the settlement was for a period of two years from 1‑4‑1986 to 31‑3‑1988. Clause 19 of the Settlement was to the effect "that it shall be filed in the Labour Court No. I who shall pass an award in terms of this Settlement". This was duly done on 25‑8‑1988.
4. Before this settlement had been brought about the Union had given a notice of demands accompanied by `Charter of Demands' on 26‑4‑1988. There was also a notice of strike on the 10th May and as a result meetings were held before the Conciliator which went on when on the 15th of December, an application came to be filed by the Company under section 34 of the I.R.O.
5. It was alleged therein that since the dispute between them was pending before the Labour Court, fresh demands could not be raised in breach of section 44 of the I.R.O. The prayer was that as the Union was not competent to serve the Charter of Demands on 26th April or the Strike Notice on the 9th May or initiate the conciliation proceedings, "the Court may be pleased to grant such other appropriate orders/relief as this Hon'ble Court may deem fit under the circumstances".
6. It is to be seen that the evidence led by the appellant does not show that a copy of the settlement had been sent to the Provincial Government or to the Conciliator or "any other person as may be prescribed". The settlement, as earlier mentioned, had a clause which was to the effect that it would be presented before the Labour Court for incorporation in the Award. It was, therefore, contended by Mr. Mehmood Abdul Ghani, learned counsel for the respondent No. 1 that for reasons best known to the appellant they had no intention to treat the document earlier executed between the parties as a settlement. It was further urged that though the dispute was pending before the Labour Court, it was open to the appellant to withdraw it or get it dismissed by default, yet they did not choose to do so, and made sure that it should find a mention in the Award itself. The settlement had therefore been merged and crystallised in the shape of the Award.
8. Mr. Mehmood Abdul Ghani contended that the notice under section 26(1), I.R.O., apart from the pendency of the dispute before the Labour Court, was also before the expiry of two years from the date of the Award. The fact that two years had been completed as per terms of the duration given in the settlement will be wide of the mark. That takes us to section 40, I.R.O. which reads as under:‑‑
"40. Effective date of settlement award etc: A settlement shall become effective‑‑(a) if a date is agreed upon by the parties to the dispute to which it relates, on such date; and (b) if a date is not so agreed upon, on the date on which the memorandum of the settlement is signed by the parties.
(2) A settlement shall be binding for such period as is agreed upon by the parties, and if no such period is agreed upon, for a period of one year from the date on which the memorandum of settlement is signed by the parties to the dispute and shall continue to be binding on the parties after the expiry of the aforesaid period until the expiry of two months from the date on which either party informs the other party in writing of its intention no longer to be bound by the settlement.
(3) An award given under subsection (1) of section 37 shall, unless an appeal against it is preferred to the Tribunal, become effective on such date and remain effective for such period, not exceeding two years, as may be specified therein. The arbitrator, the Labour Court, or as the case may be, the Tribunal, shall specify dates from which the award on various demands shall be effective and the limits by which it shall be implemented in each case:
Provided that if, at any time before the expiry of the said period any party bound by the award applies to the Labour Court which made the award for reduction of the period on the ground that the circumstances in which the award was made have materially changed, the Labour Court may, by order made after giving to the other party an opportunity of being heard. terminate the said period on a date specified in the order,
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(5) Notwithstanding the expiry of the period for which an award is to be effective under subsection (3), the award shall continue to be binding on the parties until the expiry of two months from the date on which either party informs the other party in writing of its intention no .longer to be bound by the award:"
8. Manifestly the notice was given by the appellant while an industrial dispute was pending before the Labour Court for an adjudication. Otherwise too a period of 2 years had not been completed, since the award came. That will attract the mischief of section 44 of I.R.O.
9. In the light of these observations I will uphold the order of the Labour Court and dismiss the appeal.
H.B.T./2199/Lb.S
Appeal dismissed.