1. DECISION MD. NURUL ISLAM KHAN (CHAIRMAN).-This is an applica--tion under section 34 read with section 45(1) of the Industrial Relations Ordinance, 1969 hereinafter referred to as the Ordinance, made by the May & Baker Employees' Union.
2. The sum and substance of the case of the first party is that they are a registered Trade Union and Collective Bargaining Agent of the workers of the second party firm. The Union raised a charter of demands under section 26 of the Ordinance on 29-6-1970 which the second party received on, 30- 6-1970 fixing 4-7-1970 as the date for dialogue. On the suggestion of the second party they re- submitted a more reasonable charter of demands on 8-7-1970 in order to demonstrate close co- operation and cordial relationship between the parties. The Management acknowledged the revised charter of demands, dated 8-7-1970 on 2-0-7-1970, but on different excuses did not give any date for bilateral negotiation. The first party then intimated the second party on 30-7-1970 that unless negotiation commenced they would be forced to resort to strike ballot. At 4-30 p.m. of 30-7- 1970 strike ballot was taken and on 31-7-1970 strike notice was served upon the second party under section 28 of the Ordinance. The strike was notified to be commenced on 21-8-1970. The second party refused to acknowledge the strike notice on that day and accordingly the same was sent to them on 1-8-1970. After this, bipartite conciliation meetings were held in the office of the Joint Director of Labour, Dacca on 10th, 17th and 20th of August 1970. Another meeting was held on 20-8- 1970 when it was found that the parties were in a conciliatory mood anti it was agreed that further conciliation meeting should take place without resorting to strike with effect from 21-8-1970.
3. Another concilia--tion meeting was fixed on 21-8-1970 at 10-30 a.m. in the Office of the Conciliator.
4. The first party in order to give chance to conciliation intimated that the strike would be postponed and accordingly by a letter dated 21-8-1970 the first party postponed the date of strike to 1-9-1970 hoping that during the intervening period they would reach an amicable settlement. Conciliation took place on 21-8-1970 and it was decided by the conciliator that on 29-8-1970 another meeting of conciliation 'would be held.
5. On 22-8-1970 after the employees have reported for duty in the office the second party served upon the first party a letter dated 21-8-1970 stating that the strike already commenced according to law and the conciliator had no jurisdiction to hold further conciliation. The employees were not allowed to work in the office and the Attendance Register was also removed away from the office. It is submitted that the second party totally misunderstood the spirit of conciliatory and co-operative efforts of the first party and tried to undermine the conciliation by effecting in illegal lock-out as envisaged under section 46 of the Ordinance. The second party did not serve any notice of lock- out under section 28 of the Ordinance on the first party through they received the notice of strike on 31.7-1970. So their lock-out was illegal. The second party, in presence of the conciliator on 20-8- 19 70 agreed to sit for concillation on 21-8-1970 after accepting the proposal of postponement of strike and extension of the period of strike notice beyond 21 days. The first party claimed that 21 days is the minimum period of strike notice and if date is extended at the behest of the servers of notice, they do not lose jurisdiction in the matter nor does the conciliator by carrying an conciliation beyond 21 days loses his jurisdiction in the matter. So the first party has prayed for declaring the loch-out illegal and prohibiting the same.
6. The second party submitted a written statement in which it was stated inter alia that the application was misconceived and misleading. The second-party further stated that in compliance with the provision of section 26 the first party was to serve a notice of 21 days. But in fact a 20 days' notice was served. However considering that it was a 21 days' notice, the strike was to commence with effect from 22-8-1970. The conciliation, if any, was to be completed during the period of this 21 days. But the conciliation failed during this period. According to the Ordi--nance the first party was to resort to the strike with effect from 22-8-1970 and that they could not budge from the statutory provision and could not thereby waive the legal provision by arbitrarily extending the period of strike notice. If they would not withdraw the charter of demands and call off the strike, the strike statutorily was to commence with effect from 22-8-1970 and there could not be any alteration or alternative to this. The application on the score alleging that the second party has violated the provision of sections 44. and 46 of the Ordinance is, therefore, misconceived as the scheme of collective bargaining as onvisaged under the law, does not contemplate extension of the notice period of strike. The second party denies that the first party was in any conciliatory mood as found in the tripartite meeting on 20-8-1970. They also denied that the parties agreed to hold another meeting on 21-8-1970. It is submitted that there was no occasion for any working in the office after the workers had gone on strike in accordance with the provisions of law and therefore, unauthorised reporting in the office for duty does not have any legal authority after the strike had commenced. "It is well-settled proposition of law that the strike commences at the expiry of 21 days prescribed as the notice period in terms of section 3 of the I. R. O., 1969. The company expected that the workers will remain on strike for the period as envisaged in the Ordinance. The second party denied any lock-out by them as according to them the strike commenced after the expiry of the notice period of 21 days. The application should, therefore; be dismissed.
7. Both the parties agreed to dispose of the application under sections 34 and 45(1) in the same hearing as they agreed that there was no separate prayer.
8. Point for determination is whether there is any illegal lock-out in the second party establishment, and if so, should it be prohibited?
9. FINGINGS AND DECISION In the preserve case there is no dispute between the parties that the first party was the Collective Bargaining Agent and that they wised a dispute under section 26 of the Ordinance. The partice also admit that there were several sittings before the conciliator for arriving at an amicable settlement between the parties. On 20-8-1970 the conciliation proceeding remained inconclusive and was then decided that on 21-8-1970 there would be another meetings. On that day the first party deferred the strike to 1-9-1970. It is then submitted that on that day the second party was informed by the conciliator that another meeting would be held on 29-8-1970. The second party says that they did not commit anything regarding this proposed meeting and they came away to their owe for receipt of the letter of the first party to the effect that the strike has been deferred to 1-9-1970.
10. Now the second party held that the notice period of strike could not be extended beyond the statutory period of 21 days as laid down in section 28 of the Ordinance and that whether there is an actual cessation of work by the workers or not, the strike would commence after the lapse of 21 days of the strike notice. Emphasising and banking on this point it was then held by the second party that the workers would be construed to be on strike with effect from 22-8-1970 and even if they rave reported for duty it was unautho--rised since the Collective Bargaining Agent did not call off the strike and withdraw the charter of demands. This position they have clearly held in their written statement filed in this Court and there could be mincing of words in this averment of the second party. The first party has clearly stated that it was their right to resort to the strike after the lapse of 21 days of notice period and it was their option to defer the strike since it was boy who were exercising their such right in accordance with the law. It was further stated that the period of 21 days is the minimum provided in the law as the words `may serve' have been Used in section 28 of the Ordinance. Similarly, it has been pointed out that in section 32(2) of the Ordinance the Govern--ment also had similar optional duty of prohibiting strike after 30 days. There have been instances where strike/lock-out have not been prohibited immediately after the lapse of 30 days.
11. So the word `may' in these two specific sections gives right to the parties concerned to do a thing after that statutory period and in exercise of their such right they might extend the period an the present case also in keeping with the spirit of the Ordinance such as maintenance of harmony and good relationship between the parties the first party, as the case may be, had the right to continue the negotiation and could defer the strike to suit their convenience. The second party had no right to object to this and misinterpreted the law to resort to lock-out as has been done in the present case. It has been submitted by the second party that after the bilateral negotiation the conciliation would start as soon as the conciliator receives the notice of strike ands that the period of conciliation could not last beyond the period of notice. I am sorry to say I cannot agree with the contention of the learned Advocate of the second party, since it just provides, for the stage at which the conciliator could step in. But how long the conciliator continuous conciliation would depend on the mutual consent of the parties involved in the matter. In fact, even negotiation could continue eternally though there is a specific provision for negotiation between the parties as per provision of section 26 of the Ordinance. In that sense the conciliation could continue till the strike/lock-out is actually resorted to by the parties concerned. In the present case toe second party has hazarded a presumption that even though actually the workers might not have ceased working, they are presumed to be on strike after the lapse of 21 days due to a misconstruction of the spirit and implication of section 28 of the Ordinance. According to section 2(xxv) strike means a cessation of work by a body of persons employed in any establish--ment acting in combination or concerted refusal, or refusal under a common understanding of any number of persons who are or have been so employed to continue to work or to accept employ--ment.
12. In the present case there has been no cessation of work. Only there has beef a presumption on the part of the second party on the basis of a misconstruction of the law that the cessation of work need not be actual, but it could be only presumptive for the operation of section 32(I) of the Ordinance. But the second party has failed to understand that even operation of section 32(1) is optional as the subsection would show. The said subsection runs as follows: "(1) If no settlement is arrived at during the course of conciliation proceedings and the parties to the dispute do trot agree to refer it to an arbitrator under section 31, the workmen may g4 on strike or, as the case may be, the employer may declare a lock-out, in accordance with the notice of strike or lock-out.
13. It is the right of the workmen employer to go on strikes or to declare a lock-out. If somebody choses to overcome his right not to resort to strike or declare a lock-out, their adversaries cannot force them to enjoy or exercise that right. Unfortunately 'in the present case the adversary that is, the employer hag practically tried to force the other party to go on a strike which they refused to do.
14. The first party has submitted that they reported for duty, but the Attendance Register was removed and they were not allowed to sign. Similarly, they were trot allowed to work. The essence of the law as explained above, mint be understood by the second party to act as a good employer. It is quite clear that they cannot force the other party to exercise their right such as the right of strike when they are not willing to exercise their right of strike themselves.
15. In. view of the above, it appears on both points of law and facts that the second party, due to misconstruction of the law has resorted to this illegal lock-out. Even now they are not willing to allow the workers to work as has been revealed in the Court during the hearing as they insisted that the same statutory strike still continuing and it must continue at least for 30 days till it is prohibited by the Government. I must say once again that this is. an erroneous interpretation of law by the second party.
16. In the result, this application under section 34 read, with subsection (t) of, section 45 of ;the Ordinance is allowed on contest and it is found and declared that there is an illegal lock-out in the establishment of the second party with effect from 22-8-1970. The said illegal lock-out is prohibited and the second party is directed to implement the above order at once by withdrawing the lock- out and allowing the workmen to work formally.
17. I have consulted the Members who have agreed with my decision above and submitted their written opinion accordingly.