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Appeal NoKAR‑206 of 1984, heard on 18th October, 1984.

‑‑‑S. 10(5)‑‑Notice for termination of award‑‑To be given after expiry of period of operation of award‑‑Notice prier to termination of award‑ Invalid.

1964 P L C 509 and 1970 P L C 408 rel.

Muhammad Ashraf Khan for Appellants.

Mahmood A. Ghani for Respondent.

Date of hearing: 18th October, 1984.

This appeal is against the impugned order of the Sind Labour Court No. V, Karachi, dated 7‑8‑1984. The brief facts are that an award was given by the National Industrial Relations Commission and the same was to remain in operation upto 31‑3‑1984. The appellants wanted to terminate this award and hence they gave a notice on 1‑2‑1984, expressing their intention of termination of the award. The notice was given two months prior to the actual termination of the award. The appellants held a meeting 29‑3‑1984 and submitted a fresh Charter of Demands on 1‑4‑1984. The respondents went to National Industrial Relations Commission under section 34, I.R.O., 1969. On 4‑4‑1984, the Full Bench of the National Industrial Relations Commission issued a status quo restraining the respondents from serving the notice of strike. On 17‑4‑1984, the N.I.R.C. passed an order to the effect that it had no jurisdiction and the management should apply to the Labour Court for enforcement of its rights. Hence, an application was moved before the Labour Court to the effect that the award, dated 31‑3‑1984 still continued to remain in operation and that the notice of termination of award in terms of section 40(5) of the Industrial Relations Ordinance, 1969, has to be served after and not before the expiry of the period of award. Then, further proceedings took place before the Labour Court and the learned Labour Court held that the matter has become infructuous and that the notice of termination ought to be given after expiry of the operation of the award under section 40(5) and not before the expiry period of operation of the award.

2. This Court gave a notice to the respondents, namely, the management. The matter was argued at length by the learned counsel Mr. Mohammad Ashraf Khan for the appellant and Mr. Mahmood A. Ghani for the respondent.

3. At the outset both Advocates conceded that the point involved in this matter is with regard to the interpretation of section 40(5) of the Industrial Relations Ordinance, 1969, and precisely the point to be determined in this case was whether the notice by any party as contemplated under section 40(5) of the Industrial Relations Ordinance, 1969, be given after expiry of the period of operation of the award or before expiry of the period of operation of the award. Mr. Mahmood A. Ghani read out section 40(5), Industrial Relations Ordinance, 1969, and gave meaning to its words as they occur in the subsection. The subsection (5) of section 40, Industrial Relations Ordinance, 1969, is as under:‑

"Subsection (5) of section 40.‑‑ "Notwithstanding the expiry of the period or 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."

4. The learned counsel read subsection (5) of section 40 and spelt out that the notice of termination by either party is to be given after the actual termination of the award. In this respect he cited the authority 1964 P L C 509. In the case cited in the authority, an award was given for one year. The Railway Administration was one of the parties. There was no application by the Railway Administration seeking permission of the Court to terminate the award under subsection (5) of section 14 of the Industrial Disputes Ordinance, 1959. What the administration did was that they gave a notice to the union, two months in advance of the expiry of the period of the operation of award with a declaration of termination the award in respect of certain matters on the expiry of the said period. The notice was given under subsection (5) of section 14 of the Industrial Disputes Ordinance, 1959. Subsection (5) of section 14 of the Industrial Disputes Ordinance, 1959, is asunder:

"Subsection (5). section 14.‑‑ "Notwithstanding the expiry of the period of operation under subsection (3), the award shall continue to be binding on the parties until the expiry of two months from the date on which a notice in writing of an intention to terminate the award is given by one of the parties to the other party or parties to the award."

5. The learned Chairman of the Industrial Court observed "But that is not what that subsection contemplates". The provisions of that clause, the award "notwithstanding the expiry of the period of the operation, continues to be binding on the parties, until expiry of the period of two months from the date on which a notice in writing of intention to terminate the award is given by one of the parties to the other party or parties to the award. Such a notice can obviously be given after the expiry of the period of operation of the award and during the notice period, the award continues to be binding on the parties under subsection (5)." In nutshell, it was decided that the notice as contemplated, is to be given after the expiry of the operation period of the award. The wording of subsection (5) of section 14 of the Industrial Disputes Ordinance, 1959, and subsection (5) of section 40 of the Industrial Relations Ordinance, 1.969, is almost the same.

6. Thereafter the parties went to the Supreme Court and the Supreme Court by its Decision, reported in 1970 P L C 408, made the following observations: --‑

"Subsection (5) of section 14, makes it abundantly clear that notwithstanding the expiry of the period of the operation of the award under subsection (3) which means also that notwithstanding .that the maximum period of three years of the award has run out, it shall continue to be binding on the parties until the expiry of two months from the date on which a notice in writing of an intention to terminate the award is given by one of the parties to the other party or parties to the award. The award will continue to have a binding efficacy until, as required by this provision, a valid notice is served."

7. The upshot as it appears that the notice was to be given after the expiry of the period of the award was in operation and was effective. A notice before the expiry of the period of operation of award was not a valid notice. The learned counsel Mr. Mohammad Ashraf Khan contends that the Law enunciated in the former Industrial Disputes Ordinance. 1959, was substantially changed under the Industrial Relations Ordinance. 1969. He made against efforts to substantiate but he has no forceful arguments as regards to the difference in subsection (5) of section 14 of the earlier Law and the present Law, namely, subsection (5) of section 40 of the Industrial Relations Ordinance, 1969. As it would appear that the notice contemplated under subsection (5) of section 40, I.R.O., 1969, was to be given after the actual expiry of the period of operation of award. The very notice prior to termination of the award was invalid. Accordingly, I hereby dismiss the appeal in limine.

A. E.

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