1. MD. NURUL ISLAM KHAN (CHAIRMAN): This is an applica--tion under section 25(1)(6) of the East Pakistan Employment of Labour (Standing Orders) Act, 1965. hereinafter referred to as the Act.
2. The case of the first party is that he was- a permanent worker as Chief Technician working under the second party for the last 5 years. His last pay was Rs. 250.00 per month. The -first party went on strike with other workers of the Dacca Shahar Bakery and Confectionery Sramik Union with effect from, 27-2-70. This strike was prohibited by the East Pakistan Government on 6-5-70. He went - to resume his duties immediately but the second party did not allow him and verbally refused work to him. The second party's action is illegal as it was a partial lock-out. He sent a grievance petition. on 18-5-70. ' But he received no reply. Hence his prayer for directing the second party to re-instate him with all back wages.
3. The second party entered into appearance. One witness each was examined from the two sides.
4. The case of the second party, as it traspires from the evidence of his witness and the cross- examination of the first party is that there was a good relationship between the parties so mush so that Rs. 15.00 used to be deducted from the pay of the first party as food charges and that the first party was appointed as Head Technician. Further the first party was given a loan of Rs. 1,300.00 in different instal--ments particularly for the performance of Haj of, his father. The loan was however, sought to be adjusted and an amount of Rs. 960.00 remained outstanding. The first party reported for duty on 24-5-70 for the first time. But in the mean time as the strike was not successful in the factory and as .the strike was otherwise over by 6-5-70, the second party kept another. Mistry in his place. Even then the first party was told to apply afresh and come on another date. But the did not come. His case is one of voluntary dereliction or resignation from service. So the application should be dismissed.
5. Points for determination in the present case are :
(1) Whether the first party was refused work by the second party when he reported for duty after prohibition of the strike?
(2) What relief, if any, is the first party entitled to?
6. FINDINGS AND DECISIONS Both the points would be dealt with together for the sake of convenience.
7. One witness each was examined. from each side. Abdus Sobhan Khan, the first party, stated that he was appointed as Chief Technician under the second party since 12-2-66. When the strike was resorted to on 22-2-70 he also resorted to the strike. The said strike was prohibited on 6-5-70. On receipt of the information through the Union he went to resume his duty on 10-5-70. But the owner Mr. Mulfat Ali refused to allow work and told him to come later. 'He went on several occasions but to no effect. So he sent a grievance petition on I 1r-5-70. This fact was admitted by Muhammad Hussain the Accountant of the second party who was examined here. The first party, however, denied that he went to join his work only on 24-~-70 for the first time. The second party denied that Mulfat Ali was a partner and it was submitted that Abdul Wahab was the partner and it was he who gave him the loan on several occasions. The facts of taking loan particularly in connection with the Haj of the father of the first party was admitted. But there was disagreement regarding the amount and the outstanding sum that remained unpaid after adjustment,. The first party said that he used to draw a net pay of Rs. 200.09 per month and that Rs: 400.00 was adjusted out of his pay for 3 months. He said that he took - a loan of Rs. 930.00 in two instalments of Rs. 500.00 and Rs. 400.00.
8. He denied that he took .j Loan of Rs. 1,300.00 and that Rs. 960.00 remained as outstanding loan after adjustment. The second party's witness stated that during the 3 months of Paus, Magh and Falgun the first party took Rs. 462.00 in different instalments and that his total dues were Rs. 366.60 and that after adjustment the loan stood at Rs. 969.40. He claimed that Mulfat Ali was none in the management of their management and that the first party went for work only on24-5-70 in presence of Abdul Wahab and the said witness.' He said that they have kept a Mistry in the absence of the first party. He, however, denied that the first party was driven out of his service for victimisation.
9. Now it appears that in the present case the relationship between the parties was very cordial at the beginning. The first party was given a handsome amount of loan though there was no agreement regarding the amount. It, however, appears that immediately after the strike the first party did not report for duty. He should have reported for duty on the 7th and if not on the 7th, by 8-5-70. But here in this case the first party reported for duty on 10-5-70 according to his own admission, after receiving the news through the Union. None has come from the Union to depose to this effect.
10. Further, according to the spirits of the I. R. O. he should have reported for duty at once and should not be late in attending to his duty. As the, 24 hours' time is allowed for joining to his duties. If he is late after that time, it amounts to illegal strike. Apart from the contention of the second party that the first party went to join on 24-5-70, we would, otherwise find from his own contention that the first party was late in reporting for duty and that there was an illegal strike in his case. In the circumstances, the second party was at liberty to treat the case of the first party as that of dereliction of duty and voluntary resignation. The mere prohibition of the strike by the Government does not entitle the worker to join his duty at any time chosen by his sweet will. Understandably the work should not leave his station if the strike was of his own volition.It was he who should be volition over the ending of the strik and without losing any time he should join to his duty within 24 hours of the prohibition of the same.
11. In the present case, as the first party has failed to comply with such logical deduction of law it may be found that he reported to strike during this period of his absence after the prohibition of the strike minus the 24 hours that may be preferably be allowed to him. Thereafter, whatever may be the length of his absence, that is, 10w5-70 or 24-5-7 0, in such circumstances the employer stood in a position to dispense with his service as he is not bound to wait for him unnecessarily and indefinitely after the prohibition of the strike. In the present case we find that the second party did not draw up any proceeding against the first party for resorting to illegal strike after prohibition of the strike. As the second party failed to take any action for misconduct, against the first party, the dispensation of the service of the first party was at the choice of the first party, which might be termed as dereliction of duty or voluntary resignation. As the first party approached the Court for relief, this should be termed as a voluntary resignation from his service and he is, therefore, not entitled to any relief.
12. It is, therefore, ordered that the application of the first party be dismissed on contest but without costs.
13. I have considered the opinion of both the members while giving my decision above.