1972 P L C 190

[Dacca (Pakistan)]

Before B. A. Siddiky, C. J. and K. Hossain, J

PAKISTAN TOBACCO Co. LTD., CHITTAGONG‑Petitioner

Versus

THE CHAIRMAN, SECOND LABOUR COURT OF EAST PAKISTAN AND

18 OTHERS---Respondents

Writ Petition No. 67 of 1970, decided on 27th August 1970.

(a) Industrial Relations Ordinance (XXIII of 1969), S. 40(2)--

Interpretation‑‑Termination of award by party with notice of its intention
to revoke award‑Does not have the effect of extingui shing right or
obligation flowing from award‑Such termination does not automatically
put parties, into position of status quo ante‑Parties only at liberty to
negotiate terms of settlement afresh.

The questions for consideration before the Nigh Court were:

(i) What is the legal effect of the revocation, under section 40(2),
Industrial Relations Ordinance 1969, of a settle ment arrived at
between the parties;

(ii) Whether with the revocation of the settlement the binding

effect of the settlement is wiped off and the parties are at liberty to
act as if no settlement existed so that they can revert back to the
position obtaining prior to the date of settlement.

Held: From a reading of section 40(2) of the Industrial Relations

Ordinance, 1969 it appears that if a provision has been made that during
the period of settlement which has been agreed upon by the parties it
will remain binding on the parties and after the expiry of the period it
stall also continue to remain binding on the parties until notice is given
by either party to the settlement expressing its intention no lower to be
bound by the settlement. The latter clause of section 40(2) of the
ordinance provides that either party can give notice expressing its
intention not to be bound by the settlement. It means that the binding
effect of the settlement to the extent that the terms of the settlement
cannot be negotiated or agitated during operation of the settlement
ceases to be effective. The conse quence is that after the period of notice
as contemplated in section 40(2) of the Ordinance the terms of the
settlement become negotiable and the parties to the settlement can enter
into a fresh settlement if they so desire, but it must be mutual. It also
means that if there is a want of mutuality then either party can raise it as
a dispute and take the matter to the Labour Court for getting a fresh
award as the Labour Court shall decide. The interpretation that after the
service of notice by either party to the settlement, the parties are placed
into the position of status quo ante to the settlement cannot be accepted
as it will be contrary to the well‑recognised principle of the law that once
a contract or settlement is arrived at and acted upon mere passage of
time of its operation or any expression of intention unilaterally by one of
the parties to the contract or settlement to terminate its binding effect
does not and cannot put an end to the obligations flowing therefrom nor
are they reverted back to the position of status quo ante. As it is
physically impossible for a man to go back in point of time to the period
anterior to the date of settlement, similarly it is against all principles of
law and contrary to equity and justice that a party to a contract or
settlement should be allowed unilaterally to change his position to his
advantage and to the disadvantage of the other party simply because the
period of settlement has expired, even though the settlement was acted
upon. This interpretation is in accord with the purpose of maintaining
industrial peace and the growth of industrial production ; it will also
avoid social friction between the workers and the employers to a great
extent.

The principle of res judicata is applied to the matters in Industrial

Disputes though the principle is not applicable in terms but it is
applicable on principle as it is founded by wisdom which is for all time.
And there are good reasons why this principle should be applicable to
decisions of Industrial Tribunals also. Legislation regulating the relation
between Capital and Labour has two objects in view. It seeks to ensure to
the workmen who have not the capacity to treat with capital on equal
terms, fair returns for their labour. It also seeks to prevent disputes
between employer and employees so that production might not be
adversely affected and the larger interests of the society might not suffer.
Now, if it is to be held that an adjudication loses its force when it is
repudiated and that the whole controversy is at large, then the result
would be that far from reconciling themselves to the award and settling
down to work it, either party will treat it as a mere stage in the prosecu
tion of a prolonged struggle, and far from bringing industrial peace, the
awards would turn out to be but truces giving the parties breathing time
before resuming hostile action with renewed vigour. On the other hand,
if they are to be regarded as intended to have long term operation and at
the same time hold that they are liable to be modified by change in the
circumstances on which they are based, both the purposes of the
Legislature would be served.

The view taken by the Courts is that a party to a dispute which has been
terminated either by award or by settlement shall not be allowed to
resile from its position unilaterally. Therefore, what the law provides by
section 40(2) of the Ordi nance is that by expressing its intention not to
be bound by the award or the settlement after the period of expiry, any
of the parties to the settlement is at liberty to negotiate the term which
was the subject‑matter of the settlement but it does not mean that the
rights and obligations arising out of the settlement or the rights and
obligations flowing therefrom are wiped out.

(1957) 2 L L J 256 ; A I R 1957 S C 38 and Pakistan River Steamers Ltd. v.

Province of East Pakistan P L D 1961 S C 393 ref.

(b) Industrial Disputes Ordinance (XXIII of 1969), S. 2(xxv) ---

"Strike"‑Cessation of work even for a short duration could amount to
"strike".
A plain reading of section 2(xxv) of the Industrial Relations Ordinance,
1969, means that there must be cessation of work by a body of workers
and there must be a combination among them in ceasing to work upon a
common understanding. The workers if they deliberately bring about the
cessation of the working of machinery, even for a short period, it would
be "strike." There is no mention in section 2(xxv) of the duration which
could be said to be a criterion for determining a strike.

(c) Constitution of Pakistan (1962), Art. 98‑Other remedy

open‑Provision for appeal made in statute but no appellate tribunal
constituted‑Held, writ petitions in circumstance, only alternative remedy
open.

M. J. Jafer with M. Hafizullah for Petitioner.

Md. Mozammel Huq with Md. Moksudor Rahman for Respon dents.

Dates of hearing : 20th, 21st and 24th August 1970.

JUDGMENT

K. HOSSAIN, J.‑The petitioner, Pakistan Tobacco Company Limited in this

writ petition has challenged the order and award of the learned Labour
Court dated 29th January 1970 passed in Industrial Dispute Case No. 75 of
1969.

The facts for disposal of this Rule are that the petitioner is a Limited
Company registered under the Companies Act and the respondents are
the workers of the petitioner‑company. On 20‑10‑1967 a settlement was
arrived at between the company and the workers regarding certain
terms and conditions of the service of the workers of this company at its
Chittagong Unit in East Pakistan. The duration of this agreement was for
two years. The workers through their Union served a notice dated 1st of
March 1969 on the company intimating their desire to recall their
settlement and on 1‑5‑1969 the Union Workers sub mitted a fresh charter
of demand on the Company. An ad interim relief of Rs. 30 was granted to
the workers which remained in operation for six months. Thereafter by a
letter dated 21st August 1969 the Union informed the company that
staggered tea‑breaks are also a part of their charter of demand submitted
on 1st of May 1969. On 22nd December 1969 the workers discontinued
attending their work during tea‑breaks en bloc thereby bringing about
the stoppage of machinery. The company therefore on 24th December
1969 filed an application under section 34 of the Industrial Relations
Ordinance, 1969 before the Second Labour Court for declaring the action
of the workers in resorting to staggered tea‑breaks as strike. The workers
filed objection against this application and during the pendency of the
proceeding before the Labour Court there was an interim injunction
against the workers for not resorting to the discontinuance of work taken
en bloc. The decision was given on 29th January 1970 dismissing that
application of the petitioner‑company. Against that the present Rule was
obtained.

It may be stated that on 9th January 1970 the company and the workers
have come to another settlement for two years on certain terms and
conditions.
The Labour Court found that the workers by resorting to their staggered
tea‑breaks en bloc did not violate any terms of the agreement as with the
revocation of the settlement dated 20‑10‑1967 by the workers the binding
effect of the settlement ceased and as such the workers were entitled to
resort to staggered tea‑breaks en bloc. He also found that this resorting to
tea‑breaks by the workers of the company does not amount to strike. A
question of jurisdiction was also raised by the workers but no decision
was given on that point. .

Mr. Jaffer, the learned Advocate for the petitioner‑company has assailed
the findings of the Labour Court on certain grounds and they may be
taken up one after another. It may be stated that Mr. Mazammel Huq
appearing on behalf of the respondents workers has also raised certain
points as to the maintainability of this writ petition as well as the
maintainability of the application under section 34 of the Industrial
Relations Ordinance, 1969 which may also be considered in its place.

In this petition two fundamental questions are involved. First is‑what is

the legal effect of the revocation of the settlement arrived at between the
company anti the workers, and secondly if the binding effect of the
settlement continues then the resorting to tea‑breaks by the workers en
bloc will amount to strike or not? It is therefore proper that these two
fundamental points involved in this writ petition in the dispute between
the company and the workers need be gone into.

The first point for our consideration therefore is whether with the
revocation of the settlement arrived at on 20‑10-67 between the company
and the workers by the service of notice of two months on 1‑3‑1969, the
binding effect of the settlement ceases or continues to remain binding on
the parties unless it is modified either by bilateral agreement or by
raising a dispute and getting an award on that point from the competent
Labour Court. The Labour Court is of opinion that with the revocation of
the binding effect of the settlement by the service of notice the workers
were at liberty to revert back to the position prior to the agreement of
20‑10‑67 arrived at between the company and the workers. It may be
stated that there is no dispute regarding the fact that on 20‑10‑67 the
company and the workers entered into an agreement which should be
termed as settlement regarding certain terms and conditions of service
and by this agreement the provision for staggered tea‑breaks was
introduced for the first time. By this process the workers agreed to take
their tea‑breaks which were prevailing prior to the agreement of 20‑10 67
in a different form. Prior to this agreement the entire workers used to
take tea‑breaks en bloc which resulted in the closure of the machinery
during tea‑breaks. But by this process of staggered tea‑breaks the
workers agreed to take the tea‑breaks in batches, so that the machinery
was not stopped and the production continued. This agreement was
under its terms valid for two years. The workers by their notice dated
1‑3‑69 served on the company expressed the desire not to be bound by
this settlement which was arrived at on 20‑10‑67. This notice was given in
compliance with the requirement of law which provides that the
settlement arrived at by the parties shall continue even after the expiry
of the terms unless two months' notice is given by either party declaring
their intention to revoke the settlement. There is no dispute between the
parties that the settlement had binding effect for two years from
20‑10‑67; the notice was served by the Union on 1‑3‑69 and from 1‑5‑69
the binding effect of the agreement ceased. The question now falls for
consideration is what is the effect of the revocation of the
settlement‑whether by this revocation the parties are put to the position
prior to the settlement or it means that the binding effect of the
settlement continues but it is subject to the negotiation and variation
either by a bilateral agreement or by raising a dispute and obtaining an
award from the Labour Court. The view of the workers, as represented
by Mr. Mozammel Huq, and which has found favour with the Labour
Court is that with the revocation of the settlement the parties are at
liberty to treat as if no settlement existed, so that they can revert back to
the position prior ‑to the date of settlement. Mr. Jaffer, the learned
Advocate for the petitioner -company on the other hand, submits that
that is not the intention and it cannot be the interpretation of the
provision of law that with the revocation of tile settlement the parties are
reverted back to the position prior to the date of settlement.

The contentions of both the parties can now well be con sidered by
reference to the section itself. The relevant section is section 40(2) of the
Industrial Relations Ordinance and it may be quoted as follows: ‑

(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 memoran dum 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
found by the settlement."

The relevant provision of the East Pakistan Labour Disputes Act, 1965,
which was in operation on the date of settlement was revoked, is to be
found in section 15(2) and it may be quoted as follows: ‑

"(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 a notice in
writing of an intention to terminate the settlement is given by one
of the parties to the other party or parties to the settlement."
From a reading of the two provisions it is clear that the language is
substantially the same in both the enactments and therefore the
principle of interpretation that will be applicable will be the same in
both the cases. By section 67 of the Industrial Relations Ordinance, 1969,
the East Pakistan Labour Disputes Act, 1965 along with other Acts was
repealed but notwithstanding the repeal, a saving clause has been
provided in sub‑clause (b) of clause (2) which reads as under: ‑

"(2) Notwithstanding the repeal of any law by subsection (1), and

without prejudice to the provisions of section 24 of the General
Clauses Act, 1897 (X of 1897):

(a) * * * * * * * * * *
 (b) anything done, rules made, notification or order issued, officer
appointed, Court constituted, notice given, proceedings
commenced or. other actions taken under any law shall be deemed
to have been done, made, issued, appointed, con stituted, given,
commenced or taken, as the case may, under the corresponding
provisions of this Ordinance, to the extent of consistency
therewith."

Section 67 (2) (h) of the Industrial Relations Ordinance clearly shows that
whatever agreement was arrived at under the Labour Disputes Act, 1965
wi11 be deemed to have continued and remained valid and operative as
is made under the Industrial Relations Ordinance, 1969. It has already
been found that both the provisions, one under section 42(2) of the '
present Ordinance and the other under section 15 (2) of the East Pakistan
Labour Disputes Act, 1965 are substantially the same. It, therefore,
remains to be seen what is the true interpretation of subsec tion (2) of
section 40 of the Industrial Relations Ordinance, 1969.

From a regarding of the section it appears that a provision has been

made that dating the period of settlement which has been agreed upon
by the parties it will remain binding on the parties and after the expiry of
the period it shall also continue to remain binding on the parties until
notice is given by either party to the settlement expressing its intention
no longer to be bound by the settlement. The latter clause of section 40
(2) of the Ordinance provides that either party can give notice expressing
its intention not to be bound by the settlement. It means that the binding
effect of the settlement to the extent that the terms of the settlement
cannot be negotiated or agitated during operation of the settlement
ceases to be effective. The consequence is that after the period of notice
as contemplated in section 40(2) of the Ordinance the terms of the
settlement become negotiable and the parties to the settlement can enter
into a fresh settlement if they so desire, but it must be mutual. It also
means that if there is a want of mutuality then either party can raise it as
a dispute and take the matter to the Labour Court for getting a fresh
award as the Labour Court shall decide. The interpretation sought to be
given on the provisions of section 40(2) of the Ordinance that after the
service of notice by, either party to the settlement, the parties are placed
into the position of status quo ante to the settlement cannot be accepted
as it will be contrary to the well‑recognised principle of the law that once
a contract or settlement is arrived at and acted upon mere passage of
time of its operation or any expression of intention unilaterally by one of
the parties to the contract or settlement to terminate its binding effect
does not and cannot put an end to the obligations flowing therefrom nor
are they reverted back to the position of status quo ante. As it is
physically impossible for a man to go back in point of time to the period
anterior to the date of settlement, similarly it is against all principles of
law and contrary to equity and justice that a party to a contract or
settlement should be allowed unilaterally to change his position to his
advantage and to the disadvantage of the other party simply‑ because the
period of settlement has expired, even though the settlement was acted
upon. This inter pretation is in accord with the purpose of maintaining
industrial peace and then growth of industrial 2 production; it will also
avoid social friction between ‑the workers and the employers to a great
extent.
Mr. Jaffer in support of his contention has referred to several decisions.
He has first cited a decision reported in (1957) 2 L L 1 256. It is a decision
of the Bombay High Court under the Industrial Disputes Act, 1947, as
amended. The fact in that decision was that there was an award given by
the Industrial Tribunal. After the period of its expiry the employer gave a
notice expressing his intention to revoke the award. Under the award a
worker was entitled to get Rs. 3‑6‑0 per 1000 bidis and after the notice of
revocation the employer sought to pay .the workers at the rate of Rs. 2.8‑0
per 1000 bidis. The workers did not accept the position and filed an
application under the Payment and Wages Act for the recovery of the
balance amount that was payable under the award, The contention of the
workers were upheld. The employer filed a writ petition against that
decision to the High Court of Bombay contending that with the notice of
intention revoking the binding effect of the award be was free to give
lesser pay to the workers. This contention was repelled by the Bombay
High Court.

The provisions of subsection (6) of section 19 of the Indus trial Disputes

Act, 1947 are as follows: ‑

"Notwithstanding the expiry of the period of operation under

subsection (3), the award shall continue to be binding on the
parties until a period of two months has elapsed from the date on
which notice is given by any party bound by award to the other
party or parties intimating its intention to terminate the award."

Shah. J. one of the learned Judges of the Division Bench of the Bombay
High Court observed as follows: ‑

"When an award is delivered by the industrial tribunal it has the

effect of imposing a statutory contract governing the relations of
the employer and the employee. It is true that statutory contract
may be terminated in the manner prescribed by subsection (6) of
section 19. After the statutory contract is terminated by notice the
employer by failing to abide by the terms of the award does not
incur the penalties provided by the Industrial Disputes Act, nor can
the award be enforced in the manner prescribed by section 20 of
Industrial Disputes (Appellate Tribunal) Act, 1950. But the
termination of the award has, in our judgment, not the effect of
extinguishing the rights flowing therefrom. Evidently by the
termination of the award the contract of employment is not
terminated. The employer and the employee remain master and
servant in the industry in. which they are engaged, unless by
notice the employer has also simultaneously with the termination
of the award terminated the employment of the employee. If the
employment is not terminated, it is difficult to bold that the right
which has been granted under the award automatically ceases to
be effective from the date on which notice of termina tion of the
award becomes effective. In our judgment, the effect of the
termination of the award is only to prevent the enforcement of the
obligations under the award in the manner prescribed, but the
rights and obligations which flow from the award are not wiped
out."
Mr. Jaffer has also referred to a decision of the Supreme Court of India,
reported in A I R 1957 S C 38. In this decision also there was an award
and binding effect of the award after its expiry under the provision of
section 19 (6) of the Indus trial Disputes Act, 1947 as amended was in
question. In this case, the principle of res judicata was applied to the
matters in Industrial Disputes Act with the observation that though the
principle is not applicable in terms but it is applicable on principle as it is
founded by wisdom which is for all time. Thereafter the following
observation was made: -

"And there are good reasons why this principle should be applicable to
decisions of Industrial Tribunals also. Legislation regulating the relation
between Capital and Labour has two objects in view. It seeks to ensure to
the workmen who have not the capacity to treat with capital on equal
terms, fair returns for their labour. It also seeks to prevent disputes
between employer and employees so that production might not be
adversely affected and the larger interests of the society might not suffer.
, Now, if we are to hold that an adjudication loses its force when it is
repudiated under section 19 (6) and that the whole controversy is at
large, then the result would be that far from reconciling themselves to
the award and settling down to work it, either party will treat it as a
more stage in the prosecution of a prolonged struggle, and far from
bringing industrial peace, the awards would turn out to be but truces
giving the parties breathing time before resuming hostile action with
renewed vigour.

On the other hand, if we are to regard them as intended to have long

term operation and at the same time hold that they are liable to be
modified by change in the circumstances on which they are based, both
the purposes of the Legislature would be served."

Mr. Jaffer. has also referred to a decision of our Supreme Court, reported
in P L D 1961 S C 393. Mr. Jaffer has relied on the following observation
of the Supreme Court which was made in a matter relating to an
industrial dispute under the Industrial Disputes Act, 1947 as amended in
Pakistan: ‑

"As a last resort learned counsel contends that when parties have
entered into an agreement or an award has been delivered, parties
should not be allowed to take a position or make a claim
inconsistent with the award or the settlement unless they are able
to show some change of condition since the award was delivered
or the settlement arrived at. It is true that an award delivered on a
particular date should be presumed to have taken into
consideration all the relevant factors as on that date and should be
regarded as the proper decision under the circumstances so that a
person who asks for variation should either show some change of
circumstances or put forward a case which would ordinarily
entitle him to a review of the previous decision. Similar
considerations would apply to a settlement unless the settlement
was a kind of interim arrangement or was arrived at in view of
certain special conditions."

The contention of Mr. Jaffer gets ample support from the observations
made in the aforesaid decision. We now look to the provisions of section
40 (2) o he Industrial Relations Ordinance which is substantially in the
same terms as they were in the Labour Disputes Act, 1965 as well as in
tire Industrial Disputes Act, 1947, as amended and it is found that the
language has remained substantially the same all through and the
interpretation given by the Indian as well as Pakistani Courts are more
or less uniform. The view taken by the Courts is that a party to a dispute
which has been terminated either by award or by settlement shall not be
allowed to resile from its position unilaterally. Therefore what the law
provides by section 40(2) of the Ordinance is that by expressing its
intention not to be bound by the award or the settlement after the period
of expiry, any of the parties to the settlement is at liberty to negotiate the
term which was the subject‑matter of the settlement but it does not mean
that the rights and obligations arising out of the settlement or the rights
and obligations flowing therefrom are wiped out. We have already
pointed out that it is physically impossible in point of time to go back to
the position anterior to the date of settlement. It is equally not
permissible for any of the parties to the settlement by merely expressing
its intention unilaterally not to be bound by the settlement arrived at
between them. It only means that the parties to the settlement are at
liberty to negotiate the terms which were not negotiable during the
operation of the settlement. The contention of the learned Advocate for
the petitioner therefore must be upheld.

It may be stated that the learned Labour Court was wrong in holding that
there is a difference between the basic rights which flow from the
agreement and the manner and mode of availing the right by either
party. It may be stated that the learned Labour Court is not clear in his
mind as to what the basic rights are and what is the manner and mode of
the enforcement. He has not referred to any provision of law either
under the Industrial Relations Ordinance or under the Labour Dispute
Act or any other Acts or Ordinances, where such dichotomy of rights has
been made into a basic right and the manner of enforcement. The
learned Labour Court has in a vague manner introduced his private
opinion in the interpretation of statute which he is not entitled to do and
so he fell into an error. This erroneous decision has affected his finding
on the question of strike. The finding of the learned Labour Court that
with the expiry of the period of settlement and after the service of notice
by the workers expressing their intention not to be bound by the
settlement meant that they were not to observe the staggered tea‑breaks
was wrong. After the service of notice expressing their desire to revoke
the settlement the subject‑matter of the staggered tea‑breaks became
negotiable, but it could not be altered unilaterally by any party. It could
only be altered either by agreement entered into by the employer and
the workers or by raising it as an industrial dispute and obtaining an
award on that point from a competent Labour Court. That not having
been done the binding effect of the settlement regarding staggered
tea‑breaks continues notwith standing the service of the notice by the
worker expressing their intention not to be bound by the agreement
dated 20‑10‑67.

The next question of importance is whether the action of the workers in

resorting to staggered tea‑breaks en bloc amounts to strike. The
petitioner in its petition of complaint under section 34 of the Industrial
Relations Ordinance before the Labour Court in paragraph 3 has averred
"that since 22nd December 1969 the workers have unilaterally and on the
device of their once bearers of the Union, the second party have reverted
back to their old 'tea‑breaks' arrangement thereby resulting in the
shutting down of machines and in cessation of work as per Appendix 'A'
every day under a common understanding and in wilful con travention
of the terms and conditions of the agreement quoted above". The reply of
the workers in paragraph 15 of the written statement is that the
agreement dated 20‑10‑67 having ceased to be binding on the parties
with effect from 1‑5‑69, reversion to old tea‑break arrangements by the
workers thereafter is not a contravention of the said agreement and any
loss of production or stoppage of work caused by the workers availing
their tea -breaks cannot be termed as strike." From the pleadings it is
clear that the workers do not controvert the fact that they have resorted
to taking staggered tea‑breaks en bloc as given in Annexure 'A' to the
petition filed by the company before the Labour Court. They also do not
deny that their taking of tea‑breaks en bloc has resulted in the stoppage
of machinery and therefore cessation of the work as a whole. All that
they contend is that with the expiry of the binding effect of the agree
ment dated 20‑10‑67 they are entitled to revert back to their position
prior to the date of the agreement dated 20‑10‑67. Therefore, in fact the
position remains that the workers had resorted to take tea‑breaks which
are known as staggered tea‑breaks from 22nd December 1969 resulting
in the stoppage of the machinery and cessation of the work. Therefore on
question of fact there is no doubt. The only questions that comes up for
our considera tion is whether this amounts to strike. The definition of
strike as given in section 2(xxv) of the Industrial Relations Ordinance is
as follows :‑

"(xxv) 'strike' means a cessation of work by a body of persons employed

in any establishment acting in combination or concerted refusal, or
refusal under a common understanding of any number of persons who
are or have been so employed to continue to work or to accept
employment;"

A plain reading of this subsection means that there must bet cessation of
work by a body of workers and there must be combination among them
in ceasing to work upon a common understanding. From the facts stated
above it is clear that the entire body of workers of the Chittagong Unit of
the petitioner‑company has ceased to work during the period covered by
the staggered tea‑breaks and in their written statement they have clearly
expressed their mind that they have done so wilfully and the belief that
after the expiry of the period of settlement they are entitled as of right to
go back to the position as was prevailing prior to 20‑10‑67, namely, the
date of settlement. It has been found that the binding effect of the
settlement continues. Therefore this action of the workers cannot but be
termed as strike. It appears that the Labour Court was under the
impression that after the notice of revocation a party is not bound by the
settlement and that all the rights and obligations arising out of the
settlement are wiped out and the parties are reverted back to the
position prior to the date of settlement. It has already been found that
this finding of the learned Labour Court is wrong and under this
erroneous impression he has come to a finding that the action of the
workers is not strike. The defence set up by the workers is also clear; they
assert that the binding effect of the settlement had ceased and so they
were entitled to revert back to the position prior to the settlement and as
such it is not a strike. They never raised the plea that the manner of their
cessation of work en bloc result ing in the stoppage of machinery is not
cessation of work which amounts to strike. It must therefore be held that
the manner in which the workers have ceased working during staggered
tea‑breaks amounts to strike: In this regard the relevant clause of the
agreement in question as to the staggered tea‑breaks may be quoted as
follows :‑

"13(ii) The Union agrees that in the interest of increased production there
shall not be any fixed tea‑breaks involving stoppage of machines and the
workers, who will continue to have tea‑breaks, shall avail the breaks in
small groups without any interruption in the continuous running of the
machines or normal work of their respective departments."

From a plain reading of the above terms of the agreement, which we

have already found as continuing to be binding on parties, it is clear that
any violation of this term will result in the stoppage of machinery and
therefore cessation of work. The workers have deliberately brought
about the cessation of the working of the machinery which may be for a
short period, but nonetheless this strike as it is evident from the
definition given in section 2(xxv) of the Ordinance inasmuch as there is
no mention of the duration of the period which can be said to be a
criterion for determining a strike. The criterion for finding a strike is
both subjective and objective. The subjective criterion is that the workers
must intend to stop the work and the objective criterion is that this
intention, in fact, will bring about stoppage of work. There is so provision
for duration of the stoppage. It may be noted that none of the parties led
any oral evidence before the Labour Court and from the pleadings and
the admitted action of the workers it is found that they intended to resort
to staggered tea‑breaks en bloc. The petitioner has also pleaded that the
workers have done so wilfully to which there is no denial, so that the
subjective condition is fully satisfied. That the action of the workers has
brought about stoppage of the machinery has been asserted by the
petitioner and it has not been denied. Therefore, b6th the conditions
required under the provisions of section 2(xxv) of the Ordinance are
fully satisfied. So it must be held that the action of the workers in taking
staggered tea‑breaks amounts to strike and the learned Labour Court was
wrong in not giving a declaration to that effect.

Mr. War has raised another question which is of waiver. According to

him, the agreement dated 20‑10‑67 remained in operation, by virtue of its
own term for two years and on 1st March 1969 the workers gave notice
expressing their intention not to, be bound by the settlement. Thereafter
on 1st May 1969, they placed is fresh charter of demand. In this charter
of demand though there is no reference to the staggered tea‑breaks, but
the learned Advocate for the petitioner contends that reference to this
staggered tea‑breaks was made in the forwarding letter accompanying
the charter of demands. It has further been contended that the workers
by their letter dated 21st August 1969 clearly informed the company that
the staggered tea‑breaks au form part of the charter of demand. It is the
next contention of the petitioner that during the pendency of the
application under section 34 of the Ordinance before the Labour Court
which was filed on the 24th December 1969 a fresh settlement was
arrived at on 9‑1‑1970 between the company and the workers wherein
the workers after agreeing to certain terms and conditions in clear terms
stated that they withdrew all other claims, excepting one relating to
North Hill Estate. Mr. Jaffer therefore contend that by necessary
implication the workers have withdrawn all their claims regarding the
staggered tea‑breaks by entering into the fresh agreement on 9‑1‑70. Mr.
Mozammel Haq, the learned Advocate for the respondents, has, on the
other hand, referred to a letter dated 5th February 1970, which was given
by the company after the decision of the Labour Court on 29‑1‑70 stating
that the petitioner is ready to negotiate a final settlement regarding tea-
breaks. It may, be stated that this fact has arisen after the filing of the
application before the Labour Court. This point was not properly mooted
before the Labour Court and no decision was given by the Labour Court
on the point. It may also be noted that certain evidences are required to
be taken before a final judgment can be given as to whether the workers
by the letter dated 21st August 1969, did in fact include this question of
staggered tea -breaks in their charter of demand or whether the workers
when entered into the fresh agreement dated 9th January, 1970,
conscious ly excluded this demand from their charter of demand. We
refrain from giving any opinion on this point, and this point again does
not clearly fall for our consideration as what we are dealing with is a
writ in the nature, of certiorari' where the order passed by the Labour
Court is in question. Therefore, we do not entertain this point of the
learned Advocate for the peti tioner.

Mr. Mozammel Huq has raised other questions before us which may be
dealt with one by one.

The learned Advocate has raised the question of maintain ability of this
writ petition in this High Court. His contention is that the order of the
Second Labour Court is an award and under the provisions of the
Industrial Relations Ordinance there is a provision for appeal and the
petitioner not having preferred an appeal this writ petition cannot be
maintained. In answer to this Mr. Jaffer has asserted that at the time
when this writ petition was moved in this Court the Appellate Tribunal
was not constituted and as such though the provision for appeal was
there, there being no forum available the petitioner could not avail of the
alternative remedy provided under the Ordinance. There is substance in
the contention of the learned Advocate for the petitioner and as such it
must prevail. There having been no constitution of the Tribunal at the
time of moving this High Court the petitioner had no other alternative
but to move this Court and as such it cannot be said that this writ petition
is not maintainable.

Mr. Mozammel Haq also contended that under section 54 of the Factories
Act, 1934, the workers were entitled to a larger period of break than what
they were actually enjoying and as such this period of staggered
tea‑breaks cannot be taken to be anything which was granted by the
company in excess. This contention is not sustainable in view of the clear
admission in the written statement of workers before the Labour Court
that the staggered tea‑breaks the workers were enjoying were over and
above the statutory requirements. Therefore this contention of the
learned Advocate for the respondents is of no substance.

Mr. Mozammel Huq has next raised a question that the Labour Court has
no jurisdiction to entertain the application under section 34 of the
Industrial Relations Ordinance. This ques tion was raised before the
Labour Court but the Labour Court did not give any decision on that
point. The relevant notification is dated 20th March 1969, issued under
subsection (1) of section 9 of the East Pakistan Labour Disputes Act, 1965
wherein the jurisdic tion was given to the Second Labour Court covering
whole of the Chittagong Division and the jurisdiction that was given to
the Third Labour Court was whole of the Khulna Division. Narayanganj
Sub‑Division of the Dacca District, any dispute concerning an industrial
unit which does not fall or operate wholly within the jurisdiction of any
one of the Courts ; and any dispute concerning two or more industrial
units, all of which do not fall or operate wholely within the jurisdiction of
any one of the Courts. Mr. Mozammel Haq wants to contend that since
the petitioner has another industrial unit in Dacca, it must be deemed
that the petitioner has two industrial units and none of which wholely
falls within the jurisdiction of either the First or the Second Labour Court
and so the Third Labour Court has jurisdiction. This contention is
fallacious in view of the fact that the notification refers to an industrial
unit and not to an industry or industrial undertaking. The present
dispute relates to the factory of the petitioner at Chittagong and this
Chittagong Industrial Unit is a complete unit by itself. We hold that the
Second Labour Court had jurisdiction to entertain the application under
section 34 of the Ordinance.

Mr. Mozammel Huq has raised certain subsidiary points. He has raised a
question that this application of the petitioner- company was not
maintainable as it related to the interpretation of a term of settlement
and as such the proper forum under section 50 of the Industrial Relations
Ordinance, 1969, was the Tribunal which means the Appellate Tribunal.
This contention of the learned Advocate is against the very pleadings of
the workers inasmuch as according to the workers they have terminated
the binding effect of the settlement. Therefore in the present case there is
no question of interpretation of the terms of settlement. This contention
of the learned Advocate for the respondent is of no merit and must
therefore fail.

Mr. Mozammel Huq has next contended that the application under
section 34 of the Ordinance was not maintainable in view of the fact that
sections 34 provides' for an application where a party to an Industrial
Dispute relating to a matter arising out of any right guaranteed or
secured to an employer or workman by or under any law for the time
being in force or an award or settlement may apply to the Labour Court
for adjudication of the dispute. The contention of the learned Advocate
for the respondents is that since no proper dispute was, raised no
application under section 34 was entertainable. Section 2, sub section
(xiii) of the Ordinance defines "Industrial Dispute" to mean "any dispute
or difference between employers and employees or between employers
and workmen or between workmen and work men which is connected
with the employment or non‑employment or the terms of employment or
the conditions of work of any person." From the definition of the
'Industrial Dispute' as provided in the Ordinance it is clear that the term
'Industrial Dispute' is wide enough to include a controversy of the
present nature, namely, whether with the service of notice by the
respondents of pressing their intention to revoke the settlement under
section 40 (2) of the Ordinance the parties are entitled to revert back to
the position prior to the settlement. This dispute is between the employer
and the workmen. Section 34 of the Ordinance further provides
regarding the term of employment of the workers that any party to an
Industrial Dispute relating to a matter arising out of any right guaranteed
or secured to an employer or workman by or under any law for the time
being in force or an award or settlement may apply to the Labour Court
for adjudication of the dispute. In the present case the interpre tation of
section 40 (2) of the Ordinance is in dispute. No doubt the employer as
one of the parties to the settlement has ample right to apply under
section 34 of the Ordinance for adjudication of the dispute aforesaid. This
contention of the learned Advocate for the respondents also of no merit.

The next point urged by Mr. Mozammel Huq is that the Union ought to
have been made a party. From the reading of the petition before the
Labour Court it is found that the petitioner has made all the‑ workers
parties and has named the office‑bearers of the Union specifically as
parties representing the workers. Therefore, in our opinion, there is no
defect in the frame of the application before the Labour Court.

The next contention of the learned Advocate for the respon dents is that
the settlement dated 20‑10‑67 is a 'collective agree ment' as defined in
section 2(iii) of the Industrial Relations Ordinance and not a settlement
as defined in section 2(xxiv) of the Ordinance. The contention is of no
merit as section 2(xxiv) clearly provides inter alia that 'settlement' means
a settlement arrived at during the course of a conciliation proceeding,
and includes an agreement between an employer and his workmen
arrived at otherwise than in the course of any conciliation proceedings."
This is a settlement which was arrived at otherwise than in the course of
any conciliation proceeding. Further this contention of the learned
Advocate for the respondents is of no substance in view of the fact that
the settlement was arrived at under the provisions of the East Pakistan
Labour Disputes Act, 1963 where there is no such provision as 'collective
agreement. This contention, therefore, fails.

There is no other point for our consideration in this matter.

The result, therefore, is that the order of the learned Second Labour
Court, dated 29th January 1970 passed in Industrial Dispute Case No. 75
of 1969 is declared to without lawful authority and of no legal effect. It is
also declared that the action of the workers in discontinuing to work
daring the staggered tea‑breaks period en bloc amounts to strike. The
Rule is, therefore, made absolute, but without any order as to costs.

SIDDIKY, C. J.‑I agree.

Rule made absolute.

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