DECISION ' This case is an off-shoot of a strike in the Karachi Shipyard and pngineering Works Ltd., the respondent herein,, which commended from 30th May, 1979. The said strike was declared to be an illegal strike by the learned second Labour Court by its order, dated 7th June, 1979, and by the same order striking workers were ordered to call off the strike and resume their duties within 24 hours from the date of the above order. As the strike was not called off the learned second Labour Court by its final order, dated 18th June 1979, dismissed all the striking workers from service and also held that the Karachi Shipyard Workers Union had abetted the contravention of the Court's order, dated 7th June, 1979, calling upon the striking workers to call off the strike. The appellant, who was the Organizing Secretary of the Karachi Shipyard Workmen's thli011, was considered by the Management to be one of the striking workers and, accordingly, he was dismissed from service pursuant to the orders of the learned Labour Court dated 18th June, 1979. The appellant challenged the orders of his dismissal before the learned First Labour Court on the ground that he was not a striking worker and in fact he had performed his duties during the period of strike and, therefore, his case was not covered by the orders of the learned second Labour Court dated 7th June 1979 and 18th June, 1979. The learned first Labour Court had dismissed the appellant's grievance petition mainly on the ground that being the Organizing Secretary of the Workers Union he is deemed to be a striking worker. The appellant has accordingly come up in appeal to this Tribunal.
2. It was contended by Mr. Saleem Raza, the learned Representative of the appellant, that the stand of the appellant all along had been that he was not a striking workman that in fact during the period of strike upto 9th June, 1979, whereafter a lock-out was declared by the respondent establishment, he had been attending to his duties. In support of his contention the learned representative relied upon the application, dated 1st September, 1979, made by the appellant to the Managing Director of the respondent Establishment, the evidence given by the appellant before the learned Labour Court and the admission of the respondent's witness, Sultan Ijaz Pervez, in his evidence before the learned Labour Court, In his application made to the Managing Director, the appellant has stated as follows : - "It may be mentioned here, that I was not a striking worker because I fully discharged my duties until 9th June, 1979, as I checked the clock card of the workers in order to prepare the wages on 5th June, 1979, prepared the envelopes containing the wages of workers on 6th June, 1979 and disbursed the wages to the workers on 7th June, 1979. It was Friday on 8th June 1979 and on 9th of June, 1979, 1 prepared the wages vouchers of workers and also received the prescribed cash Handling Allowance."
3. In his evidence before the learned Labour Court, the appellant reiterated the assertion made by him in his application to the Managing Director that he had attended to his duties during the period of the alleged strike and gave details of some of the work performed by him during the period of strike. In his affidavit, the appellant even gave the number of vouchers which had been prepared by him and mentioned the names of the other clerks who had assisted in disbursing wages amounting to Rs, 1,13,453.38. For this work the appellant received cash allowance amounting to Rs, 30 and overtime allowance of Rs, 63 vide Voucher No, 139/6, passed and checked by Mr. Azmatullah Khan, Assistant Accountant and Qazi Anwar Ahmed, on behalf of the Manager (Finance/Account). The appellant was subjected to lengthy cross-examination but nothing was brought out which could be considered as falsifying or casting any doubt on the above assertion of the appellant. On the other hand, it was admitted by the witness of the respondent Sultan Ijaz Pervez, that as a matter of fact the appellant disbursed wages and got overtime allowance. It was, however, alleged by this witness that the appellant did so on his own and they had to pay him overtime under duress. I have not been able to appreciate this allegation made on behalf of the respondent. In the first place, it is not known how this huge amount of one lac thirteen thousands could have been withdrawn by the appellant from the National Bank without the approval of the authorities. Secondly, if this amount was unauthoriaedly drawn or the appellant did not perform the duties of disbursing the wages why and how could he have been paid overtime allowance and cash allowance. The person who sanctioned the overtime allowance as also the clerks who assisted the appellant in disbursing the wages were not examined before the learned Labour Court. As such the testimony of the appellant in this behalf stands unrebutted.
4. Mr. Zahid Hamid, the learned Representative for the respondent establishment, strongly supported the view taken by the learned Labour Court that the appellant was a striking worker. As already pointed out the main ground on which this view was based is that the appellant was the Organizing Secretary of the workers Union which, according to the order, dated 18th June 1979, of the learned Second Labour Court had abetted the staging of the strike by the workers. The mere fact that the Union, of which the appellant was an office-bearer, had abetted the l4 staging of the illegal strike is wholly insufficient for reaching the conclusion that the appellant was one of the striking workman. In the first place, it is quite possible that the appellant may have opposed the holding of the strike or may have been absent from the meeting at which the decision to go on strike was taken. In any case, as already pointed out, the evidence on record shows that the appellant had performed his duties during the period of the strike. He cannot, therefore, be considered to be a striking workman.
5. It was next contended by Mr. Zahid Hamid that the appellant has admittedly remained absent from his duties after 9th June 1979 upto or even after 18th June, 1979. The contention of the appellant is that from 10th June 1979 upto 18th June 1979 there was a lock-out by the management and that from 17th June 1979 to 20th June 1979 he was ill and was unable to perform his duties. Even if the contention of the appellant in this behalf is unfounded and is not supported by evidence, the action taken against the appellant would not be justified, as he could only be discharged from services on the basis of the orders of the learned second Labour Court, dated 7th June, 1979 and 18th June, 1979, if he was one of the striking workers on the date of the first order and had failed to call off the strike and report for duty within 24 hours of the said order, dated 7th June, 1979. As already discussed above, the evidence on record establishes that the appellant had attended to his duties upto 9th June 1979.
6. It was finally contended by Mr. Zahid Hamid that the appellant, in order to show his bona fides, should have either approached the learned second Labour Court or the respondent establishment for showing that he was not a striking workman. No doubt if the appellant had done so, this would have established his bona fides beyond any doubt but his failure to do so does not establish that he was a striking workman, as on the contrary the evidence on record clearly shows that he performed his duties upto 9th June, 1979.
7. For the reasons discussed by me above I am of the view that the order of the learned Labour Court cannot be sustained, as it has not been established that the appellant has contravened the orders of the learned Labour Court, dated 7th June, 1979, or comes within the ambit of the orders, dated 18th June 1979 he would, accordingly, order his reinstatement in service. So far as the claim of the appellant for back benefits is concerned, since the appellant failed to approach the Management after the passing of the orders of the second Labour Court to show his bona fides specially in view of the fact that he was the Organizing Secretary of the workers Union which was responsible for the holding of the strike and in fact appears to have remained absent from his duties from 18th June, 1979, I am of the view that he is entitled to back benefits only up to 9th June, 1979. The appeal is allowed to that extent only.