DECISION ' The record of the proceedings before the learned Fifth Labour Court arising out of the report of the Assistant Director, (Conciliation), East Division, Karachi, made on 13th August, 1979, was called for, in the exercise of the suo motu powers of revision of this Tribunal, for the purposes of examining the legality, correctness and propriety of the order passed on the said report by the learned Labour Court, dated 14th December, 1981, declaring the strike of the workers in M/s. Pakistan Jute & Synthetics Ltd., from 7th August, 1979 to 20th August, 1979, to be illegal and in contravention of the provisions of law.
2. It appears that on 9th August, 1979, at about 1.05 p.m., the Assistant Director, Labour (Conciliation), East Division, Karachi, received intimation from the management of the Pakistan Jute & Synthetics Ltd., that the workers in. The mills bad gone on illegal strike from 3.00 p.m. On 7th August, 1979. According to the report made to the learned Labour Court by the Assistant Director, Labour he along-with the Deputy Director, Labour, visited the mills, at about 2-30 p.m. And noticed that only 197 workers, including clerical and supervisory staff, out of a total number of 718 workers of 'A' shift were working. Efforts were made by the officials of the Directorate of Labour and the Sub- Divisional Magistrate of the Area to get the work resumed but it appears that they were unsuccessful. Again, on 11th August, 1979, the above two Officers of the Labour Directorate visited the mills on receiving intimation that the workers had not resumed work. They found that only fifty workers and 82 members of the clerical and supervisory staff were doing their normal duties out of a total working strength of 433 workers in the 'B' shift. The Assistant Director, Labour, attempted to persuade Mr. Abrar, an office-bearer of the C.B.A., to ask the workers to resume work but Mr. Abrar informed the Assistant Director that the workers were not willing to work because their General Secretary was arrested.
3. On receipt of the above report, the learned Labour Court issued notices to the parties for objections/reply statements by 19th August, 1979. On the latter date an application was submitted by the Assistant Director, Labour, praying for issuance of an ad interim order prohibiting the continuance of the strike Notice of this application was ordered to be issued to the other parties.
On 20th August, 1979, the two workers' unions in the Pakistan Jute & Synthetics Ltd., namely, Pakistan Jute & Synthetics Labour Union and Pakistan Jute & Synthetics Workers' Welfare Union, submitted their objections/reply statements. On the same date, the learned Labour Court, with the consent of the parties, appointed Mr. Riffat. Osmani. Advocate, as the Commissioner to inspect the mills of the Pakistan Jute & Synthetics Ltd., and submit his report to the Court whether the workers were on strike or they were working. On the same date, Mr. Riffat Osmani inspected the mills and submitted his report indicating that the workers were on strike. On 21st August, 1979, the learned Labour Court passed an ad interim order directing the workers to discontinue the strike.
' The said order reads as follows "The applicant, the Assistant Director of Labour, is present The representative of the respondents Nos. 1 and 2 are present. The Advocate for the respondent No, 3 is present Heard. The learned representative for the respondent No, 2 requests for time to file objections to the inspection report.
Time is granted. In the meanwhile I. After considering the inspection report of the Commissioner, issue interim injunction to the respondents Nos. 2 and 3 and their workers and direct them not to continue strike. They are directed to resume their work forthwith, although the Advocate for the respondent 'No, 3 submits that the workers of the union of the respondent No,
3. Have been prevented by the union of the respondent No, 2 from work, but this contention is, contrary to the inspection report which says that all the workers were on strike. Whether the strike is illegal, whether the workers of the, respondent No, 3 have been prevented from attending their work and whether report of the Commissioner is faulty, will be considered when the evidence of the parties is recorded, Put off for objections to the inspection report and for evidence of the applicant on 5th September, 1979, ' Sd/- 21-8-1979, ( IQBAL AHMSD BALOCH ) Presiding Officer ' Sind Labour Court No, V, Karachi."
' It appears that on the very day that the above order was passed by the strike or cessation of work in the Pakistan Jute & Synthetics Ltd., came to an end and the work in the mills was resumed.
Thereafter, the proceedings dragged on till 14th December, 1981 1. e. For about two years, during which period evidence was recorded on the issue whether the workers had gone on illegal strike or there was a lock-out by the management. The evidence recorded by the learned Labour Court consisted of the statement of the Assistant Director, Labour and Mr. Abrar Hussain, the General Secretary of the Pakistan Jute and Synthetics Ltd. Labour Union. As already indicated by the order passed by the learned Labour Court on 14th December, 1981, it has declared the strike of the workers from 7th August, 1979 to 20th August, 1979 as illegal and in contravention of the provisions of law.
4. Two issues fall to be considered in this case, namely :-
(i) whether a Labour Court is empowered by section 46-A to pass an interim order prohibiting the continuance of a strike or a lock-out ; and
(ii) whether section 46 or 46-A, I. R O., empowers a Labour Court to declare a strike to be illegal.
5. I will deal with the second issue first. Section 46, I. R.
0., specifies strikes or lock-outs which are illegal. It reads as follows :-
46. Illegal strikes and lock-outs.-(1) A strike or lock-out shall be illegal if-
(a) it is declared, commenced or continued without giving to the other party to the dispute, in the prescribed manner, a notice of strike or lock-out or before the date of strike or lock-out specified in such notice, or in contravention of section 44 ; or
(b) it is declared, commenced or continued in consequence of an industrial dispute raised in a manner other than that provided in section 43 ; or
(c) it is continued in contravention of an order made under section 32, section 33, section 45 or subsection (3) of section 46-A ; Or
(d) it is declared, commenced or continued during the period in which a settlement or award is in operation in respect of any of the matters covered by a settlement or award.
(2) A lock-out declared in consequence of an illegal strike and a strike declared in consequence of an illegal lock-out shall not be deemed to be illegal."
A bare perusal of the above section makes it clear that it lays down the circumstances in which a strike or a lock-out will be illegal but contains, no provision empowering a Court or any other authority to declare strike or lock-out to be illegal. No doubt, it provides that continuance of strike or lock-out in contravention of an order made under section 32, section 33, section 45 or subsection (3) of section 46-A, will make a strike or lock-out illegal, whether the strike or lock-out initially was legal or not, but this is not the same as empowering any authority or Court to declare a strike or a lock-out to be illegal. Of course, if in any matter within the competence of a Labour Court, the issue arises whether a lockout is illegal or legal the Court would for the purposes of that matte proceed to adjudicate upon that issue and determine whether the strike o lock-out was or was not illegal, but there appears to be no provisions I section 46 or any other section of I. R.
0., empowering a Labour Court to declare a strike or lock-out to be illegal. As such, both the request made by the Assistant Director Labour, in his report, dated 13th August, 1979 to declare the strike by the workmen in the Pakistan Jute & Synthetics Ltd., as illegal as also the order of the learned Labour Court, dated 14th December, 1981 declaring a strike to be illegal, appear to be not in accordance with the provisions of law.
6. I will now proceed to deal with the scope of section 46-A, particularly whether it empowers a Labour Court to pass interim orders prohibiting a strike or lock-out. The scheme of the section is that an Officer of the Labour Department, not below the rank of Assistant Director, on getting information of an illegal strike or lock-out in a factory, is required to make enquiries and if, according to him the strike or lockout appears to be illegal he has to make a report to the Labour Court. The Court, on receipt of the report of the Officer of the Labour Department, is required to issue notices to the employer as also the C. B. A., or registered Trade Union concerned with the dispute to appear beforeit on a date to be fixed by it. These notices are required to be served on the parties by the Officer concerned of the Labour Department. The Labour Court, after considering the report and hearing the parties as appear before it, may order the strike to be called off or lock- out to be lifted. Such order is to be made within ten days following the day on which it receives the report from the Officer of the Labour Department. If the employer contravenes the order of the Labour Court regarding the lifting of the lock out the Labour Court, in appropriate cases may issue an order for the attachment of the factory and for the appointment of official receiver. If the workers disobey the order of the Labour Court directing the strike to be called off, the Court may pass orders of dismissal against all or any of the striking workers and may also record a finding that Registered Trade Union has committed or abetted the commission of such contravention, which finding shall have the effect of the cancellation of the registration of such Trade Union and debarring all officers of such trade Union from holding office in that or any other Union. It will be seen that subsection (3) of section 46 A lays down a specific period of ten days within which an order may be passed by a Labour Court for calling off a strike or lifting of a lock-out. Moreover, such order is to be passed after considering the report of the concerned officer of the Labour Department and bearing the parties to whom notices have been issued or at least giving them an opportunity of hearing. There is no provision in the section for passing of an interim order. It may be pointed out that where ever in the I. R. O., the passing of interim order is contemplated a specific provision in that behalf is made as in the case of interim awards and power of the Wage Commission to fix interim wages and terms and conditions of service of workmen. Moreover. Since non-compliance of an order passed by the Labour Court directing the calling off a strike or the lifting of a lock-out has extremely serious consequences, the power of the Labour Court to pass interim order in this behalf, on the general principle that an authority which has the power to pass a final order has also ordinarily the powers to issue interim orders cannot be lightly presumed. It may finally be pointed out that in dealing with reports under section 46-A, I. R. 0 a Labour Court does not enjoy the powers of a Civil Court for it is only when it is dealing with an industrial dispute that a Labour Court is deemed to be a Civil Court and is clothed with the powers specified in section 36. I am, therefore, inclined to the view that no interim orders under section 46-A, I. R.
0., can be passed by a Labour Court either for the calling off a strike or the lifting of a lock-out and such orders have to be passed after considering the report of the concerned Officer of the Labour Department and giving a reasonable opportunity of hearing to the parties concerned.
7. It appears from the order of the learned Labour Court, dated 14th December, 1981, that two grounds weighed with it in passing the said order, the first being that the order, dated 21st August, 1979, was an interim order and the second that the question of wages for the strike period may arise. I have already dealt with the first ground and indicated that in my view the law does not contemplate the passing of interim orders prohibiting a strike. Even if it be assumed that such power exists, no further proceedings under section 46-A could be taken by the Court after the passing of the interim order, dated 21st August, 1979, as the workers, in compliance with that order, had resumed work. So far as the second ground is concerned, there was neither an issue before the learned Labour Court regarding claim for wages for the strike period nor this issue arises from the report of the Assistant Director, Labour. If any claim for wages for the strike period is made by the workmen before the appropriate authority and that claim is resisted by the company on the ground that the strike was illegal, the authority can determine the question whether the strike falls within the mischief of section 46, I.R.O., and further which of the workers had participated in the same. The declaration by the learned Labour Court in these proceedings that strike of workmen was illegal appears to be without any jurisdiction and of no legal effect.
8. For the reasons discussed by me above, I would set aside the order of the learned Labour Court, dated 14th December.
1981.