1. DECISION MD. NURUL ISLAM KHAN (CHAIRMAN). This is an appli--cation, under section 45(1) of the Industrial lotions Ordinance, 1969, hereinafter referred to as the I. R. O., for prohibiting the strike that is in continuance in Delhi Muslim Hotel, Dacca, by the workers of the said hotel since the 21st April 1970.
2. The case of the first party was that the hotel has got only 46 workers and they, have been working on the existing terms and conditions till rec5ntly when the workers formed a Trade Union and submitted a charter of demands. But in the bi-partite meeting for negotiation the workers did not turn up and as such, there was no negotiation. Then they served a notice of strike on the first party on the 31st March 1970 and resorted to the strike on the 21st April 1970, and thus leaving only 20 days in between the service of notice and the commencement of the strike, violating thereby the mandatory provision of section 28 of the I. R. O, Hence the strike commenced and continued by the workers is illegal and should be prohibited forthwith as it was causing financial loss to the first party employer.
3. The second party entered into appearance by filing written statement wherein they stated that the first party had not been maintaining the service conditions for the employees and in effect they have been exploiting the workers. Later on the workers formed a Trade Union and according to the procedure laid' down in the I. R. O.they served a charter of demands:, on the first party but the first party did not enter into any ------------ negotiation, So they had to serve notice of strike-------- -first party on 25-3-70 which was refused. , So they had ----------- the notice by registered post with A/D. The postal people went on several days but the proprietor of the hotel did not accept it deliberately and they accepted it only on 31-3-70: So there was a proper service of notice as on Z5- 3-70 and, of the successive days. The proprietor with mala fide motive did not accept it earlier than 31-3-70.
4. Points for determination is whether the first party has got a prima facie case for prohibiting the strike resorted to by the Delhi Muslim Hotel Karmachari Union, Dacca, commenced and continued by the second party workers since 21-4-70.
5. FINDINGS AND DECISION In the present case it appears that the first party wilfully did not sit for a bi-partite negotiation as per section 26 of the I. R. O. though it is admitted that the workers numbering, 46 were working in the hotel and both the parties remained in' the same place. So the reason advanced by the first party that the second party workers did not turn up for such a bi-partite negotia--tion does not hold good and appears to be manufactured reason. It further appears that they did not accept the, strike notice on 25-3-70. Since both the parties were found in the same place that is, within the hotel, so much so that the workers were compelled to go to the post office to send d notice by registered post with A/D. It has been stated that the post office is only five minutes' walk from the hotel and still then the notice could not be served on the first party within three consecutive days.
6. This also shows that the first party tried to avoid service of notice of the strike deliberately.
7. In the result it so happened that the notice could finally be served on 31-3-70. So it is now argued by the first party that there is a gap of only 20 days in between the service of notice and the commencement of the strike. It is pleaded that according to section 28 of the I. R. O. there should be' a clear 21 days of service period. He * has, therefore, prayed that as the mandatory provision of law has not been complied with by the second party, the strike is illegal and it should be declared illegal and be prohibited. But on reading the different sections of the I. R. O. we find that the words 'may' and 'shall' have been used by, the Legislature. It appears to me that the notice of 21 days is not a must but is optional and in peculiar circumstances like this, there could be a slight departure here and there: Hence as all other procedure had been complied with by the second party I do not think that the slight departure from the pres--cribed procedure gives the first party any legal stand for a claim that the strike is illegal and it should be prohibited as such. It is also found that on the'
8. 22nd of April, that is immediately one day after the strike took place the first party resorted to a lock-out. It appears that this lock-out is motivated. Thus considering all the facts and circumstances of the case I find that there is no prima facie case for prohibiting the strike and hence this application, under section 45(1) of the I. R. O. is found to have failed.
9. Hence it is ordered that the application be rejected on contest.
10. The members on consultation, expressed their opinion in favour of rejecting the application: