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Appeal No. 12 (21) of 1974, decided on 30th December 1975.

-- Ss. 22-A. (8) (c), 32(3) & 33(21-Reference of dispute by Federal Government to Commission without prohibiting strike-Held, illegal and void--Award given by Chairman on basis of such reference set aside.

General Manager, Ganesh Flour Mills, Lyallpur v. Ganesh Flour Mills Workers' Union, Lyallpur Appeal No 12(38) of 1975 and Manager, Khewra Salt Mines v. The Mires Employees and Labour Union, Khewra and another Petition No. 1813 ref.

-- Legislature requiring doing of a thing in particular manner-Such thing can only be dine in that and no other manner.

Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others P L D 1971 S C 61 ; West Pakistan Province v. Jamshed Miran, P L D 1965 Lah. 729; Ghulam Abbas v. The Additional Commissioner and Election Tribunal, Khairpur Mirs P L D 1965 Kar 625 and Monsab Ali v. Amir P L D 1971 S C 124 ref.

-Al-Murtaza Textile Mills Limited, the above-named appellant against the Award dated 26-4-1975, given by the learned Chairman, allowing 1 months' wages as bonus to the workers of the appellant, represented by the respondents.

2. The facts giving rise to this appeal may be briefly stated as follows: -

The appellant a cotton textile mill with a Spinning Unit for manufacture of cotton yarn. The financial year of the mill starts in October and ends in September. In the year 1973-74 the appellant-mill suffered a loss equal to Rs. 64,40,167.00 as would be borne out by its Audited Balance-Sheet (Exh. R/6). In spite of the loss the respondents served a Charter of Demands upon the appellant, containing in all 27 demands, together with a notice of strike under section 26(3) of the I. R. O. and one of them was with regard to the payment of bonus equal to 6 months' wages for the financial year, 1973-74, to the appellant's workers. Therefore, negotiations and conciliation followed between the parties, whereat the appellant showed its inability to pay bonus in view of the loss suffered by it with the result that the workers subsequently went on strike with effect from 2-2-1975. At this stage the Federal Government intervened by declaring the industrial dispute in respect of bonus as the one of "national importance" and referring it for a "judication to the Commission under clause (c) of subsection (8) of section 22-A of the I. R. O. The learned Chairman, who thereafter entered upon the reference, gave his award on 26-4-1975, as described above. It is the said award which has now been assailed in this appeal before us.

3. At the very outset we may point out that the Federal Government referred the Industrial dispute for adjudication to the Commission under sec tion 22-A, subsection (8), clause (c) of the I. R. O. without first prohibiting the strike, either under section 32(2) or section 33(1) of the I. R. O. and the Full Bench of this Commission in a recent judgment in General Manager, Ganesh Flour Mills. Lyallpur v. Ganesh Flour Mils Workers' Union, Lyallpur (Appeal No. 12 (38/75) has held that a reference made in a dispute of national importance by the Federal Government, without first prohibiting the strike, is unlawful, and all subsequent proceedings held thereafter are also illegal without jurisdiction, and of no legal consequence The reasons have been fully stated in the judgment of the Full Bench, dated 27-12-1975, and are as follows:-

Section 22-A, subsection (8), of the I. R. O., under which the dispute was referred by the Federal Government, refers only to the functions of the Commission, but not to the powers of the Federal Government; and this is clear from the plain wording of subsection (8) of section 22-A, itself, which may be reproduced as under :-

"22-A. National Industrial Relations Commission.-(1) . . . . .

(8) The following shall be the functions of the Commission, namely:--."

Clause (c) thereof reads as follows:-

(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 Federal Government of national importance and is referred to it by that Government."

5. We may now refer to sections 32 and 33 of the I. R. O. with particular emphasis on subsections (2) and (1) respectively thereof, as they refer to the powers of the Federal Government in relation to strikes and lock-outs. Section 32, and section 1 provides that if no settlement is arrived at during the course of conciliation proceedings and parties do not agree to refer the dispute to an Arbitrator under section 31, the workmen may go on strike or, as the case may be, the employer may declare a lock-out, on the expiry of the period of notice under section 28. Subsection (2) thereof then provides that where a strike or lock-out lasts for more than 30 days the Federal Government, if it relates to a dispute which the Commission is competent to adjudicate and determine, may, by an order in writing pro hibit the strike or lock-out. There is also a proviso attached to subsection (2) according to which 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 by an order in writing, prohibit the strike or lock-out at any time before the expiry of 30 days, if it is satisfied that the continuance of such strike or lock-out is causing serious hardship to the community or is prejudicial to the national interest. Thereafter subsection (3) of section 32 provides that in such cases where the Federal Government has prohibited a strike or lock-out it shall forthwith refer the dispute to the Commission. According to subsection (4) the Commission after giving both the parties an opportunity of being heard may make such award, as it deems fit. Section 33 deals with strike or look-out in a Public Utility Service or in an industrial dispute which is of national importance. According to the subsection (1) thereof, the Federal Government in case of strike or lock-out in a Public Utility Service or a dispute of national importance, and relating to a dispute which the Commission is competent to adjudicate, may, by order in writing, prohibit such strike or lock-out, at any time before or after its commencement. According to subsection (2l of section 33, the provisions of subsections (3) and (4) of section 32 shall also be applicable, in case an order has been made under subsection (1) by the Federal Government.

6. This shows, that if an industrial dispute has not been settled by the parties and has ultimately resulted into a strike or lock-out, the Federal Government can intervene by prohibiting the strike or the lock-out, either in cases provided for by subsection (2) of section 32 or by subsection (1) of section 33. It therefore, follows that the Federal Government can intervene in case of a dispute which the Commission is competent to adjudicate if-(a) a strike or a lock-out lasts for more than 30 days, (b) it is causing serious hardship to-the community or prejudicial to the national interest, or (c) it relates to a public utility service, or a dispute of national A importance. In the last mentioned case, the strike or lock-out can be prohibited at any time, either before or after its commencement. In all such situations, when the Federal Government intervenes by prohibiting the strike or lock-out, then subsection (3) of section 32 (which is also applicable to section 33) requires that the matter is to be forthwith referred by the Federal Government for adjudiction to the Commission. That means, that the dispute can be referred to the Commission, by the Federal Government, only in case, it has first prohibited the strike or lock-out, and this is clear from the plain wording of subsection (3) of section 32 or subsection (2) -of section 33.

7. It is a well-established principle of interpretation that when the Legislature requires doing of a thing in a particular manner, then it can only be done in that and no other manner. If, therefore, certain pre-condition have been laid down for the exercise of jurisdiction by an authority, then unless those conditions are fulfilled, all subsequent actions taken would be without jurisdiction and a nullity in the eyes of law. In Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division. Lahore and 2 others (P L D 1971 S C 61) it was held by Sajjad Ahmad Jan, J,:-

"One other principle which has been enunciated in this behalf is that as a general rule, statutes which enable persons to take legal Proceedings under certain specified circumstances must be accurately obeyed, notwithstanding the fact that the provisions thereof are exp ressed in merely affirmative language."

Similarly, Sardar Muhammad Iqbal, J. in West Pakistan Province v. Jamshed Miran (P L D 1969 Lah. 729) has held :-

"It is moreover, a well established principle that if by an enactment some thing is desired to be done in a particular way it has to be done in that way or not at all."

A similar view was also expressed in Ghulam Abbas v. The Additional Commissioner and Election Tribunal Khairpur Mirs (P L D 1965 Kar. 625) by the High Court of West Pakistan. In Mansab Ali v. Amir and 3 others (PLD 1971 SC 124) it was held by the Supreme Court:-

"It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer for want of jurisdiction. Any orders passed in continuation of the proceedings in appeal or revision equally suffer from illegality and are without jurisdiction."

In other judgment recently given in the case of Manager, Khewra Salt Mines v. The Mines Employees' and Labour Union, Khewra and another Writ Petition No. 1813 the Lahore High Court has also come to a similar conclusion. In that case also, dispute had been referred by the Federal Government to the Commission without first prohibiting the strike.

9. Under these circumstances, we are constrained to allow this appeal and set aside the impugned and the reference made by the Federal Government being illegal and ab initio void. The Hank Draft deposited by the appellant in the name of the Commission may be returned to it.

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