1. AWARD FAZV KHALIQ KHAN (CHAIRMAN).---- This order disposes of applications dated 27th February 1967 filed by respondent No. 1 and application dated 5th April 1967 filed by respondent No. 2 under section 10(1)(a) of the Industrial Disputes Ordinance, 19 59.
2. Messrs Khalil Ahmed, Mohammad Yaqoob, Qalendar Khan, Abdul Majeed and Mohammad Basheer, claiming to be the Elected Representatives of the Workmen of Messrs Saeed Silk Mills Limited, Karachi served a notice of strike on the Management on 16th January 1967 in respect of certain demands which need not be reproduced here. On the receipt of the strike notice under section 18(1) of the Ordinance, the Conciliation Officer started conciliation proceedings which however ended in failure on 28th January 1967 when the Failure Certificate was issued. Armed with the Failure Certificate, the five petitioners brought an application under section 5(5) of the Industrial Disputes Ordinance, 1959, on 1st February 1967 for the adjudica--tion and determination of the demands. On the same date i.e. 1st February 1967, the five petitioners brought another application under section. 20 of the Industrial Disputes Ordinance. 1959 on the ground that the Management had illegally locked-out all the workmen w.e.f. 23rd January 1967. It vas prayed that the Management be prohibited from continuing the illegal lock-out. The alleged lock-out took place in the following circumstances.
3. On 21st January 1967 i.e. before the issuance of the Failure Certificate, the Management exhibited the following notice on the notice board. It said :-- "In view of the present market situation and stock position of our Mills, it has decided to close down our Mills. It is therefore notified for all concerned that the Mills will cause to be working from 23rd January 1967. As such all the workers will cease to tie in bur employment as from the said date and shat! Se paid their dues in full and final settlement on 23-1-1967. Those who are permanent will be paid 14 days' wages in lien of notice besides their other legal dues."
4. On 23rd January 1967, the respondent closed the Mills as a result of which all the workmen were thrown out of employment. The total number of workers employed by the respondent was 56, out of whom 28 workmen realised their dues from the Management while the remaining 28 workmen did not realise their dues in protest. The Management informed the Labour Directorate of the closure of the mills by its letter dated 21 January 1967.
5. On 1st February 1967, as already observed, the Five Representatives brought the application under section 5(5) of the Ordinance for the adjudication and determination of the demands. They also brought an application under section 20 of the Ordinance for prohibiting the respondent from continuing the illegal lock-out. During the pendency of these applications, the re3pondent filed an objection petition dated 27th February 1967 to the effect that he had leased out the Mills with its entire apparatus in favour of Sheikh Zafar Iqbal on the basis of a lease deed dated 14th February 1967. It was submitted that the respondent had nothing to do with the Mills, and from then on, Sheikh Zafar Iqbal was the person Incharge of the Mills. On this application Sheikh afar Iqbal was impleaded as respondent No. 2. In his reply statement filed on 5th April 1967 Sheikh Zafar Iqbal admitted that he had taken the Mills on lease and has already paid Rs. 20,000 as earnest money to respondent No. 1 under the lease agreement dated 14th February 1967. A copy of the lease agreement is Exh. R-1 on record. As a result of the above objection the application under section 20 of the Ordinance, 1959 was dismissed as infructuous vide my order dated 21st July 1967. It was observed that:- "It is clear from the above narrative that the dispute between the parties has taken a new turn which went beyond the scope of section 20 of the Ordinance . . . . . . . . It is clear that the provisions of section 20 have a limited scope and are mainly confined to the question whether a strike or lock- out was in existence at the time when the Industrial Dispute was brought before the Court and, if so, whether it should be prohibited or not. The issues involved in the present case go beyond the preview of section 20 of the Ordinance. These issues obviously cannot be decided in application under section 20."
6. After the dismissal of the application' under section 20 of the Industrial Disputes Ordinance, 1959, the five petitioners proceeded with their application under section 5(5) of the Industrial Disputes Ordinance, 1959 for the adjudication and determination of the demands. The respondents had already raised the same objection (vide their applications dated 27th February and 5th April 1967 respectively) to the effect that the respondent No. I had given the Mills on lease to respondent No. 2 on the basis of lease deed dated 14th February 1957, Exh. R-1 on record. It was submitted that Sheikh Zafar lqbal, respondent No. 2 had started the. Mills on 20th February 1967 by recruiting new workers in place of those workers who had been discharged from the service by respondent No. 1 on 23rd January 1.967 due to the closure of the Mills. It was submitted that the petitioners were no longer competent to proceed with the application as Representatives of the workmen of Sated Silk Mills because these workmen had already been discharged from service on 23rd January 1967 and the Mills was leased to a third party i.e. Sheikh Zafar Iqbal. The petitioners challenged the genuineness of the lease agreement. It was submitted that the so-called lease deed was an eye-wash and was meant to deprive the workers of their legitimate rights. It was contended that Sheikh Zafar Iqbal was a relative of Mr. Saeed, Repres one of the proprietors of the Mills and the two had conspired together to deprive the workers of their legitimate rights. It was lastly contended that the mere change of Management did not have any effect on the right of the workmen concerned.
7. The parties were given opportunity to produce evidence for and against the objection petitions.
8. The petitioners produced p. W. Khalil Ahmad, whereas the respondent examined R. W. Syed Nazeerst Hussain, the Manager of the Mills and Sheikh Zafar Iqbal the alleged lessee.
9. The point for determination in this case falls within a short compass. The question is whether respondent No. 1 has validly transferred the Mills to respondent No. 2 by virtue of those lease agreement dated 1 1-th February 1967 and if so, what is its effect on the application under section 5(5) of the Ordinance.
10. The peculiar circumstances of this case are that the workers who had elected the five petitioners as their Representatives for the application under section 5(5) of the Ordinance have all been discharged from service by respondent No. 1 on 23rd January 1967 i.e. 8 days before the application under section 5k5) was brought. 1 have already observed out of the total number of 56 workers, as many as 28 have already realised their dues- from the Management in full and final satisfaction of their claim. The remaining workers have not realised their dues as yet. The second peculiar nature of this case is that after closure of the Mills on 23rd January 1967, Mr. Sated transferred the Mills and all its apparatus to Sheikh Zafar Iqbal respondent No. 2 under a lease deed dated 14th February 1967. This lease is a genuine document and is not a fake and ficticious as alleged by the petitioner.
11. Sheikh Zafar Iqbal, respondent No. 2 is an Industrialist in his own right. He is owner of a Mill known as Sheikh Silk Mills Limited, Karachi. He entered into the lease agreement with Mr. Saeed (who is maternal aunt's son of Sh. Zafar Iqbal) and, in this connection, paid him Rs. 20,000 as k` earnest money. He has also paid Rs. 5,000 each as rent for the months of February, March, April and June 1967 vide receipts Exhs. B to F on section 20 file (No. 3 of 1967). The lease agreement has been drawn up on stamp paper. It is duly attested by witness as well as by a Notary Public. Sheikh Zafar Iqbal had already taken possession of the Mills and started the Mills with new recruits w.e.f. 20th February 1967. There is therefore nothing legally wrong with the lease agreement. I will hold that the lease agreement is real and genuine, and not fake or fictitious document as alleged by the petitioners.
12. The factual position now is that respondent No. 1 had discharged all the workers from service on 23rd June 1967; that he had leaded out the Mills on 14th February 1967 in favour of respondent No.2 and that the respondent No. 2 had started the Mills by recruiting new workers w.e.f. 20th February 1967. This would mean that the workmen for whose benefit the present dispute was raised are no longer in the employment of respondent.
13. The petitioner have not raised any demand for the re-instatement of the workers who were discharged by the respondent No. I on 23rd January 1967. The petitioner ought to - have raised an Industrial Dispute for the re-instatement of the discharge workers. Until and unless the discharged workers are re-instated, the present application under section 5(5) of the Industrial Disputes Ordinance, 1959, cannot proceed. The reason is obvious. When there are -no workers whose interests are to safe guarded, the adjudication-on the demands become meaning less. The petitioners cannot fight on behalf of the new appointed workers for the simple reason that they do n represent the new recruits. It is clear therefore that the application under section 5(5) of the Ordinance has also- become infructuous.
14. The upshot of the above discussion is that both the petitions dated 27th February 1967 and 5th April 1967 filed by the respondents are upheld. The dispute had become infructuous. It is hereby dismissed.