' According to the Management, the present round of litigation started when on 15th February, 1981 a violent mob of about 2,000 persons led by outsiders and the office-bearers of the C. B. A. Union attacked the factory and indulged in the most vicious destruction of the factory and caused about 100 injuries to a dozen willing workers out of which three were grievous. For about 90 minutes the Factory was subjected to massive brick batting, and attempts were made on the lives of the Management executives. The doors of the Managing Director's room were smashed and he alongwith other executives had to seek refuge in the room of the Stenographer as the workers were after the lives of these executives. The Police had to resort to Lathi-Charge and tear-gas to disperse the mob. Some Police Officers were also injured. It is further alleged that mob totally burnt 3 cars of the Management and 4 motor-cycles were badly damaged. All the glass-panes of the administration block where rooms of the Managing Director, Senior Executives and the Factory Manager were located, were smashed and doors and windows of the factory were badly damaged. The workers also looted the Fair Price Shop. According to the Management this large scale violence, loot and arson continued for almost ninety minutes after which the workers did not return to duty and remained on illegal strike. An F. I. R. Was lodged with the Police under sections 307, 382, 506, 436, 146, 149, 325, 332 and 353 of P. P. C. According to the version of the Management it was in this background that the Management was forced to close down the factory and on 16th February, 1981 applied to the Labour Court under Standing Order 11-A of the W. P. Industrial and Commercial Employment) (Standing Orders) Ordinance, 1968 for closure of the Factory. Vide Memo No, 165 dated 19th February, 1981 the Joint Director, Labour Welfare, indicated that closing down of the factory without permission of the Labour Court amounted to illegal lock-out as the Factory has been closed without the prior permission of the Labour Court as envisaged under Standing Order 11-A of the W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the Management was therefore, advised to lift the illegal lock-out. The Management in their reply given on the same day i. e. 19th December, 1981 indicated that application for closure had already been moved before the Labour Court on 16th February, 1981. It was further pointed out that there was no illegal lock-out as matter was already sub judice before the Labour Court. It was further mentioned in this letter that over the past one year all Government agencies had been stressing only the rights of the workers aid the obligations of the employers but never any attention had been paid to the obligations of the workers and the rights of the employers both as managers and citizens. The Joint Director, Labour Welfare in reply through memo No, MLWILHR/CON/173 dated 25th February, 1981 again reiterated that the closure of the factory without the permission of the Labour Court tantamount to illegal lock-out and requested that the same may please be lifted. The Joint Director further denied the insinuation made against the Government Agencies. The Management in their reply dated 28th February, 1981 again stated that the application for closure of the Factory was already subjudiced before the Labour Court and therefore the comments of the Joint Director tantamounted to contempt. It was in this factual background that Mr. M. A. Akhwand, Deputy Director, Labour Welfare (Conciliation) on 28th February, 1981 filed a report under section 46-A of the Industrial Relations Ordinance, 1969 before Punjab Labour Court No. 1, Lahore with the prayer that a direction may be issued to the Management to lift the illegal lock-out immediately. The Labour Court on the same day issued notice to the opposite-parties for 3rd Match, 1981 on which date the case was adjourned to 4th March, 1981 when written statements were filed and the case was then adjourned to 7th March, 1981 for arguments. On that day the case was adjourned to 9th March, 1981 and then to 110 March 1981, 15th March, 1981 and 24th March, 1981 for the same purpose i. e. For arguments. On 5th April, 1981 the Deputy Director in- formed the Labour Court that he had held negotiation with Ch. Nazar Muhammad, Chairman of the respondent establishment, who had demanded that the application should be withdrawn and then he would negotiate with the Labour Department for the final solution of the problem. According to the Deputy Director, be alone was not competent to make any decision whether the petition should be withdrawn and he sought adjournment to consult the Secretary of the Labour Department. The case was accordingly adjourned to 7th April, 1981 for further proceedings. On that day the case was adjourned to 8th April, 1981 for further proceedings, on which day again the case was adjourned to 11th April, 1981. Again the case was adjourned to 12th April, 1981 when arguments were concluded and the case was adjourned to 14th April, 1981 for announcement of order. The Labour Court vide impugned order dated 14th April, 1981 accepted the petition by holding that the closure amounted to an illegal lock- out and directed the Management to lift the illegal lock-out within three days of the order. On 16th April, 1981 the Management submitted an application before the Labour Court praying that the Labour Court may take-over the control of the Factory and administer it in accordance with law.
Notice of this application was given to the opposite-party for 23rd April, 1981. Meanwhile the Management on 22nd April, 1981 filed the present revision petition under subsection (3-A) of section 33 of the Industrial Relations Ordinance, 1969 before the Tribunal.
2. I have heard at length the counsel for the parties and have also perused the entire material available on the record. I have also made attempt for conciliation but in vain.
3. It is vehemently contended by Mr. M. S. Bokhari, that the decision of the Supreme Court reported as 1975 SC MR 49 was binding upon the Labour Court under Article 189 of the Constitution of Pakistan and the Labour Court was not legally justified to ignore that decision. It is further argued that the observation of the Labour Court that law about the closure has been considerably changed since the above decision of the Supreme Court is not factually correct as no substantial change in law has been made since then. In any case the Labour Court or the opposite-party has not pointed out any such specific provisions of law which came into force after the decision of the Supreme Court. On the other hand, Ch. Anwar Ali, learned counsel for the respondent-Union argues that the Labour Court has not in any way ignored the above decision of the Supreme Court but has only distinguished it on the factual and legal plane. The relevant portion from the judgment of the Supreme Court is reproduced below :- "The second point urged on behalf of the petitioner was not taken before the High Court, and on the short ground alone it could be disallowed in the present proceedings. Even otherwise, it has no substance. Standing Order 11-A lays down that :-- "Notwithstanding anything contained in Standing Order 11, no employer shall close down the whole of the establishment without prior permission of the Labour Court in this behalf, except in the event of fire, catastrophe, stoppage of power supply, epidemic or civil commotion."
' It will be seen that the Standing Order does not stipulate that the application to the Labour Court for permission to close down should be the first step in the process. All that it prescribes is that no employer shall close down the whole of its establishment without prior permission of the Labour Court in this behalf. Thus the Labour Court's permission might indeed be the last step in the process of closing down, or an application in this behalf may be made by the employer simultaneously with any other step that he may have to take to wind up his business and close down his establishment. The Standing Order does not appear to use to spell out any sequence in which the various steps for closing down an establishment have to be taken by an employer, and them fore, no question arises of the respondent having committed any illegality in this behalf."
' Since I am going to remand this case to the Labour Court, I am not expressing any opinion on this issue so that the parties may advance their arguments afresh on this point before the Labour Court.
4. Admittedly the present litigation started with the incident of 15th February, 1981 as a result of which the Management claims to have closed the Factory. It is contended on behalf of the petitioner that the Labour Court did not record any evidence of the parties-oral or docmentary regarding the occurrence of 15th February, 1981. Consequently it is argued that the finding of the Labour Court that the present closure amounted to illegal lock-out is based upon no evidence. The opposite counsel admits that there is no evidence available on the record regarding the incident dated 15th February, 1981 but contends that the Management never asked the Labour Court to produce their evidence but the parties themselves proceeded to get decision without evidence.
According to the learned counsel since admittedly prior permission of the Labour Court was not obtained, the closure of the Factory was illegal and therefore, there was no need of any evidence in this case. On the other hand Mr. M. S. Bakhari, denies this assertion of the counsel for the respondent-Union and contends that the evidence in this case was most essential and the Management wanted to produce their evidence but was afforded no opportunity whatever to do so. I am clearly of the view that in a case under section 46-A of Industrial Relations Ordinance, 1969 dealing with illegal strikes or illegal lock-out parties must be afforded opportunity to produce their respective evidence. It is not denied that in an Industrial establishment the question of illegal lock- out or illegal strike is of highest importance both for the Management and the employees and therefore, should not be decided without recording' evidence of the parties unless both the parties agree not to produce any such evidence and further the Court is otherwise in a position to decide such issue in the absence of evidence. The word "hearing" used in subsection (3) of section 46-A of Industrial Relations Ordinance, 1969 supports this conclusion. According to Mr. Anwar Ali Chaudhry, learned counsel for the respondent-Union the word 'hearing' used in limited sense and is confined only the hearing of the parties verbally including arguments through their counsel I do not agree with him. In judicial proceedings before the trial Court generally there are several steps which are necessary before reaching the final adjudication. A dispute is raised by one party against the other and the parties are generally allowed to produce their respective evidence in support 9f their own claim and also to rebut the contention of the other. The parties also have a right to cross-examine the opposite witnesses. The next stage is that of hearing arguments. The litigation culminates in final pronouncement of judgment or order by the Court. The Court cannot arrive at the right conclusion by merely hearing the parties unless earlier they are given opportunity to produce their evidence to substantiate their claim. Hearing cannot be read in isolation from the earlier steps necessary in the litigation. It is in this background that it can safely be held that the word 'hearing' used in subsection (3) of section 46-A of the Industrial Relations Ordinance, 1969 is used in wider sense and includes its necessary antecedence as well as its necessary consequences.
Consequently the finding of the Labour Court that the closure amounted to an illegal lock-out is not maintainable as the evidence of the parties was not recorded regarding the incident dated 15th February, 1981 which resulted in the closure of the Factory. The Labour Court was not justified merely to rely upon the definition of "Lock-out" and Illegal-Lock-out" in the abstract without applying these definitions to the facts and circumstances of the case especially the incident of 15th February, 1981 which led to the closure of the Factory. Such an important and sensitive issue could not be decided academically in the absence of the evidence to be produced by the parties.
5. The other grievance of the petitioner is that the Labour Court has relied upon certain extraneous circumstances relating to previous litigations between the parties. It is an admitted fact that the Labour Court while giving the background and history of the previous litigations has relied upon certain documents and decision etc. But they are not made part of the present file, even the previous files or record have not been attached with the present case. The result is that this Tribunal cannot verify any of these facts or assertions relating to the previous litigations. If any party wanted to rely upon such documents the proper course was to place such documents on the record the present case.
6. Another argument advanced on behalf of the Management is that the mere closing down the Factory did not amount to illegal lock-out as application under Standing Order 11-A of W. P.
Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 for permission to close down the establishment was filed before the Labour Court on 16th February 1981 and the same is still pending while the present application under section 46-A of the Industrial Relations Ordinance, 1969 was filed subsequently on 28th February, 1981. It is further argued by the counsel for the petitioner that the impugned order of the Labour Court is silent whether the lock-out had any relations with the Industrial dispute which is still pending. According to him the Labour Court should have expressed positive opinion about it before declaring the closure as illegal lock-out.
7. For the foregoing reasons this revision petition is accepted and the impugned order of the Labour Court is set aside. Since Punjab Labour Court No. 1 has already expressed its opinion, the case is remanded to Punjab Labour Court No, 2, Lahore for decision 'afresh in accordance with law. The case under Standing Order 11-A of W. P. Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 filed by the Management before Punjab Labour Court No. 1, Lahore is also transferred to Punjab Labour Court No, 2, Lahore with the direction to dispose of both these cases together as expeditiously as possible.