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Constitutional Petition No. 35 of 1974, decided on 12th September 1974.

----Ss. 2 (xii), 26, 28, 43 & 46(1)‑Employees' Union addressing letter to employers on 15th April intimating their intention to resort to token strike from 17th April for two hours daily and also actually proceeding on such strike from 17th April‑Employees' Union's letter‑No communication contemplated under S. 26(1)‑Meeting of Works Council held on 11th May‑Not held within statutory period of ten days--Settlement with aid of Works Council having failed on 11th May notice of strike had to be given within 7 days‑Notice given on 27th May informing employers that employees' demand if not accepted within 14 days employees would proceed on strike, in circumstances, held, illegal.

----S. 26(l), (3)‑Interpretation of statutes‑Word "may" appearing in S. 26‑Mandatory‑Language permissive according to its primary meaning‑May be held imperative if such interpretation required by subject‑matter of statute.

Employees' Union v. Johnson & Johnson (Pakistan) Ltd. 1974 P L J (Tr. C.) 213 ref.

Fazle Ghani and Basharatullah for Petitioner.

S. H. Jaffery for Respondent No. 1.

Respondent No. 2 (absent).

Dates of hearing : 3rd and 4th September 1974.

The circumstances in which this writ petition has been filed are as follows:‑---

1. The petitioner, is a limited liability Company at Quetta, dealing is pharmaceuticals. On the 30th of March 1974, they informed the respon dents, the Registered Trade Union and Collective Bargaining Agents of the establishment in writing that as during the year ending 1973, it had sustained a financial loss, it will not be in a position to disburse any bonus for that year. This created some unrest among the employees of the Company, and it appears that they were insistent on payment of a bonus equivalent to two months' wages. The petitioner, on the 11th of April, addressed a letter to the Deputy Director of Labour at Quetta seeking his advice in the matter. The latter, by his letter dated the 13th of April, intimated the Management of the Company, that under the law bonus was payable, only if the petitioner had earned profit and not otherwise. However, on the 15th of April, the Secretary of the respondent‑Union wrote back that as they were being deprived of their legitimate dues, they would go on a token strike from the 17th of April, for two hours every day, beginning from 10 a.m. till noon. The very next day the petitioner remonstrated with the respondents for their threatened strike, alleging that it was illegal and uncalled for. This did not have any effect and the token strike had begun as notified. On the 18th of April, the Deputy Director wrote to the petitioner‑Company that the token strike was against the provisions of the Industrial Relations Ordinance, 1969, but as he had no powers to come to its rescue, therefore it had better seek its remedy from the Labour Court. The very same day, the petitioner filed an application under section 34 of the aforesaid Ordinance. The Written Statement was filed on 22‑4‑1974. It transpires that on that very day, on the assurance of the petitioner, that the wages of the employees would not be deducted for the days they had observed the token strike, the strike was called off. On the 2nd of May, the petitioner therefore withdrew the application filed by it.

2. It is stated that a meeting of the Works Council was held on the 11th of May, to resolve the differences, but with no tangible results. On the 27th of May, the General Secretary of the respondents sent a notice to the petitioner, that if the annual bonus was not paid within 14 days, they will proceed on strike. The petitioner again sought the intervention of the A Deputy Director, and later, on the 1st of June, again filed an application under section 34 of the Industrial Relations Ordinance, in the Labour Court at Quetta, praying that the proposed strike be prohibited, as the provisions of sections 26 and 28 had not been observed. The respondents went on strike from the 10th of June.

3. The Written Statement was filed on the 13th of June. Inter alia, it was alleged that the "negotiation notice was served under section 26, dated 16‑5‑1974, but the respondents failed to start any negotiation under section 26, sub4ection (2), after expiry of the period of notice, they accordingly served notice of strike under section 28". It was further alleged that "it was the legal obligation of the applicant to pay up bonus according to the production which was contributed by the workmen as contained in the decision A I R 1955 S C 190 and as such the plea of loss sustained by the applicant is baseless and unfounded".

4. On the 17th of June, the petitioner filed another application under section 45 of the Ordinance, with the prayer that the strike be prohibited. Both these applications came to be dismissed by the learned Presiding Officer of the Labour Court, by two separate orders, on 28‑6‑1974. It was thereafter that this writ petition came to be filed.

5. " Illegal strike', as defined in section 2(xii) means a strike declared, commenced or continued otherwise than in accordance with the provisions of this Ordinance".

6. According to section 46(1):

"(1) A strike or lock‑out shall be illegal if‑

(a) it is declared, commenced or continued without giving to the other party to the dispute, in the prescribed manner, a notice of strike or lock‑out or before the date of strike or lock‑out specified in such notice, or in contravention of section 44; or

(b) it is declared, commenced or continued in consequence of an industrial dispute raised in a manner other than that provided in section .43; or

(c) is continued in contravention of an order made under section 32 or section 45; or

(d) 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."

7. The penalty for the illegal strike is to be found in section 57 of the Ordinance. It is punishable with imprisonment for a term, which may extend to 6 months or with fine which may extend to two hundred rupees or with both. According to section 43 of the Ordinance, the industrial disputes have to be raised in the prescribed manner.

8. The prescribed manner is section 26 which reads as under:‑----

"26.‑(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 com municated 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 sub section (1) 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 (2), serve on the other party to the dispute a notice of lock‑out or strike, as the ease may be, in accordance with the provisions of this Ordinance."

9. Then comes section 28, which lays down that the period of a notice of lock‑out or strike under subsection (3) of section 26, shall be fourteen days.

10. There was a letter addressed by the respondents to the petitioner dated the 15th April, and all that was mentioned therein was that. in the .meeting convened by them to deliberate over the demands, it was decided that they would resort to a token strike from the 17th of April for two hours a day. It is also borne out from the record that they did proceed with the token strike as decided. Therefore, it was not a communication within the meaning of section 26(1) of the Industrial Relations Ordinance. Even the case put forward by the respondents, as is to be found from the Written Statement and the judgment of the Labour Court, was that the notice served by them on the petitioner was dated 16‑4‑1974. The petitioner disputed the receipt of the notice. A Handwriting Expert was examined, apart from one Abdul Salam who is alleged to have served the notice. The learned Presiding Officer on the basis of the evidence, reached the conclusion that this notice was not served on the petitioner. He has however found that the meeting of the Works Council was all the same held, as admitted by Hudiwala, the Manager of the petitioner. The minutes of the meeting are on the e record. It was held on the 11th of May. It appears that in the said meeting as many as 16 items were discussed. Under the item Bonus' the following entry is to be found. "The demand for two months' bonus for the yea 1973 was made. Discussions were held. Employer pointed out that the company having incurred losses in that year, no bonus was payable. The members again requested to convey their request to the Director that the question of granting monetary subsidiary be considered". But the Work Council or the parties had to try to settle the dispute within 10 days of the receipt of the communication and even if the letter of the 17th April, be taken as the communication of the views, it was very much thereafter. The meeting of the Works Council was not within 10 days. Otherwise too, after the failure of the settlement with the aid of the Works Council on the 11th of May, notice of strike had to be given within 7 days, and in term of section 28 of the Industrial Relations Ordinance, the period of notice of strike had to be 14 days. The notice should therefore have been given by the 18th of May and not on the 27th.

11. It is true that the word "may" has been used both in sub‑sections (1) and (3) of section 26, but where the language of the section is merely permissive according to its primary meaning, it may be held imperative if the subject‑matter requires such an interpretation. As to be found in, Interpretation of Indian Statutes by Jagdish Swarup p. 270: "In order then to decide whether the word may' is potential or imperative, discretionary or carries with it an element of compulsion whether it is permissive or enabling or obligatory, one must look at the object of the statute which vests this particular discretion and the intention of the Legislature to find out whether the discretion was coupled with a duty to be exercised irk favour of a particular party. If the object for which the power is conferred, is in order to give a right then there would be a duty cast on the person to whom the power is given to exercise it for the benefit of the party to whom the right is given when required on his behalf."

12. Looking to the circumstances that the procedure prescribed under section 26 had to be followed before a strike could legally commence, and an illegal strike was to be visited with punishment, I am of the opinion that the directions are not merely directory. This matter was considered by Mr. Justice Inamullah Khan, Appellate Tribunal, Labour Court, Sind 8 Baluchistan, in Employees' Union v. Johnson & Johson (Pakistan) Ltd. (P L J 1974 (Tr. C.) 213), wherein he observed; "the provision of section 26 of the Ordinance is a mandatory provision. The said provision confers certain right on the workers. It confers upon the workers the right to strike. In all the Ordinances and enactments prior to the Industrial Relations Ordinance, 1969, the workers had no right to go on strike. In order that the Union or the Collective Bargaining Agent may resort to strike, it must also conform with the various ingredients laid down in section 26 of the Ordinance. One of the ingredients is that if the Union desires to go on strike, it must do so within 7 days from the end of the period of 10 days of the receipt of the communication of Industrial dispute. In the present case, the strike notice was given much after the expiry of seven days of the period of 10 days for bilateral negotiations. The strike notice on this ground was also bad in law"

13. Evidently, the respondents have not been at all mindful about the ingredients of the notice under section 26 of the Industrial Relations Ordinance. Even on the earlier occasion, they had proceeded on strike without going through all these formalities. The strike, under the circumstances, cannot be said to be legal.

14. Before parting with the case, I might as well add, that Mr. S. H. Jaferi, learned counsel for the respondents, raised a contention that the petitioner should have filed an appeal before the Appellate Tribunal against the latter part of the judgment, dealing with the question of bonus. It is to be seen that the application had been filed under section 34 of the Industrial‑ Relations Ordinance, and no appeal lies against the same before the Appellate Tribunal. Otherwise too, the observations of the learned Presiding Officer of the Labour Court, were in connection with the contention as to whether there was an industrial dispute involved at all. He has not said any thing affirmatively; but with a conditional clause. The operative portion of the judgment is only in regard to the strike which he found to be legal, and therefore dismissed the application.

15. I am clearly of the opinion that the impugned order is not in the exercise of lawful authority or of any legal consequence. I will, therefore, quash the same, and allow the petition, but there will be no orders as to costs.

S. A. H. Petition allowed.

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