DECISION This is an appeal against an award of the learned Chairman, Second West Pakistan Labour Court, Karachi, dated March 14, 1970, on an application under section 6(8) of the West Pakistan, industrial Disputes Ordinance, 1968, (hereinafter called the repealed Ordinance), were by the learned Court dismissed the demand of the appellant-Union for the re-instatement of 40 of its workers. The facts necessary for the disposal of the appeal briefly put are these.
2. The respondent is a Flour Mill, while the appellant is the workers' Union. The Union gave a strike notice on 4th March 1968. Admittedly, the said notice was sent to the respondent-Mill by registered post on 6th March 1968. On 25th March 1968, the Labour Officer (Conciliation) passed the following order: "The strike notice served by you on 4-3-68 on Messrs India Flour Mills is not in proper form and hence it has been filed on legal ground.---
3. The Union, thereafter, gave another strike notice dated 13th March 1968, which gave rise to Industrial Dispute No. 7/68. The present appeal does not relate to Industrial Dispute No. 7/68. The Union gave another strike notice on 15th June 1968, for re-instatement of its workmen. The said notice resulted in Industrial Dispute No. 31/68, giving rise to the present appeal. It is important, at this stage; to mention that the Deputy Director of Food had given a notice dated 5th March 1968, directing the Mill to work only two shifts. In other words, the Mill could not continue -its third shift for the night without the permission of the Director of Food. It may be clarified that at the time when the Director gave the notice to stop the third shift no industrial dispute between the parties was pending. As a result of the notice of the Deputy Director, Food, dated 5th March 1968; the Mill was obliged to pass an order on 8th March 1968, terminating the services of 40 of its workmen, on the principle of last-come-first-go.
4. While Industrial Dispute No: .31/68, was pending, the Union made an application under section 26 of the repealed Ordinance for lifting of the lock-out by the Mill. According to the Union, 40 of its workers, whose services had been terminated by the Mill on 8th March 1968, had been locked out.
The learned Labour Court dismissed that application. , An appeal came before this Court (Appeal No. KAR-5/68). It was contended in that appeal before me that the order of the Deputy Director of Food dated 5th March 1968, was without jurisdiction. It is not necessary to repeat the arguments advanced by Mr. Majeed, the learned Representative for the Union. It will be sufficient to state that I came to the conclusion that the Deputy Director .of Food did not have power under the Flour Mills Control Order, 1959, to regulate hour of work of the workmen of the Mill. While considering the question as to whether 40 of the workmen of the Mill had been locked out or not, I came to the conclusion th4t mere termination of services of 40 of its workmen by the Mal cannot amount to a lock-out within the definition given in the Ordinance, so as to attract the provision of section 26 of the repealed Ordinance.
'5. The learned Labour Court, accepting- the statement of Mr. Tawawala, Manager of the Mill, came to the conclusion, firstly, that the Mill has ceased to function from 27th June 1968, and in the second place, that the Mill is still closed and in the third place, that the Mill was obliged to discontinue the third shift, which resulted in terminating the services of the surplus hands on the basis of the formula of last-come---first-out. On the basis of these conclusions, the learned Court, as already mentioned, dismissed the application.
6. Mr. Majeed, the learned Representative for the appellant very strenuously contended that the impugned order should be set aside on the ground that the learned Chairman of the labour Court did not afford Kim an opportunity to be heard after the conclusion of the evidence of the parties. In this connection, he made a reference to Rule 22 of the West Pakistan Industrial Disputes Rules, 1960, which reads as under: "Subject to the provisions of rune' 16, the Representatives of the parties appearing before the Court shall have the right of examination, cross-examination, and of addressing ~ the Court after all evidence has been called."
7. The question is as to whether the learned Court refused to permit the Representative of the Union to address him after the conclusion of the evidence. A perusal of the order-sheet would slow that the Court cannot be said to have stopped the Representative of the Union to address it. From the order---sheet dated 20th January 1970, it would appear that the Court fixed 16th; February 1970, for arguments. It would appear from the order-sheet of 19th February 1970, that there being holiday from 16th to 18th February 1970, the arguments could not be heard on 16th February t970. On 19th February 1970, the Representatives of both the parties were present. The Court ordered the learned Representatives of the parties to file their written arguments on 23rd February 1970. As the Representa--tive of the Mill was not present on 23rd February 1970, because of want of service, the Court ordered that the written Arguments be filed on 26th February 1970. On 26th February 1970, Mr. Ghulam Murtaza, the learned Represen--tative for the Mill, filed the written arguments. The 'Representative for the Union, however, did not file any arguments. The Court reserved the case for its orders. There is nothing on the record to show that in between 26th February 1970 and 14th March 1970, when the award was announced, any attempt was made on behalf of the Union to address the Court orally. The Court cannot force a party to address it after it has failed to file written arguments. It is common practice that the parties file written arguments before the Labour Court. There is nothing up to 14th.March 1970, on, the record to show as to why the Representative for the Union did not file its written arguments or did not make an attempt to address the Court orally. In this connection, Mr. Majeed, the learned Representative for the Union, also submitted that the Labour Court does not seem to have applied its mind the davits filed on behalf of the Union. In support of his conten--tion, the learned Representative relied on the absence of any reference to the affidavits filed by the Union, in the award. It is true that there is no reference to the affidavits filed on behalf of the Union, but that fact itself cannot vitiate the award. The learned Court had given a detailed order and reasons for conclusions. At any rate, the mere fact that the Labour Court did not give an opportunity to the Union to address it orally cannot be a ground for setting aside the award. The learned Representa--tive for the Union was permitted by me to address me at length. I have heard him in respect of all the points that he wanted to urge before the learned Labour Court. I do not see any reason to remand the case to the learned Labour Court for hearing the parties. It is a very old case and it should be disposed as expeditiously as possible.
8. The strike notice dated 15th June 1968, reads as under: ---In view of tap stiff, unto-operative and victimising attitude of the Management, viz. discharging, locking out 40 active members of the Union on 9-3-68, including its President and member of the Working Committee who had been working in the Mill since 1952 in permanent capacity and also other workmen having 20 years' service during the pendency of conci--liation proceedings and having purposely, deliberately and in mala fide refused to take them back in service in spite of the recent letter of the Deputy Director of Food to run the Mill 24 hours a day, the Union is making the following demand:- Re-instatement of the 40 workmen with full benefits of service, details of the workmen is given in the Schedule marked `A'."
9. In the written statement filed by the Union on 30th July 1968, before the Labour Court, the General Secretary of the Union, in paragraph 5, stated as under: ---That the discharge of the 4) workmen as already stated is a capricious and wantonal action and in that the alleged order of the Deputy Director of Food, has been used mali--ciously and as a cloak to victimize the workmen concerned though such order has never been brought to the notice of the Union of Labourer's Committee or the workmen and also that such order never asked the Flour Mills to effect retrench--ment. The policy as announced by the Director always for administrative and for procurement of wheat supplies provided and exception clause inserted in it namely: `In case any mill or plant desires to function during night shift, they shall obtain prior permission in writing from the undersigned.'
These directions, therefore, in its sphere always have been directory and to use them by distortion is all the more open to objections."
10. The short question, in view of the contention of the parties is as to whether the order terminating the services of 40 workmen was a bona fide or a mala fide one. In this connection, the first question that would arise for consideration is as to whether the Mill had to carry out the order of the Food Department or not. I have already held in my order in Appeal No. KAR-5 of 1968, dated 14th January 1969, 'that the Mill cannot be said to have acted mala fide in following the instructions issued by the Food Department. The order, on the face of it, was a, legal order. The Management could not go into the question of law as to whether the Food Depart--ment could regulate its hour of work or not.
The Management stopped the third shift under the order of the Food Department dated 5th March 1968. It had, however, an option to take permission if it wanted to continue the third shift. The mere fact that the Management did not take recourse to the option can--not be a ground for the conclusion that it acted mala fide in dis--continuing the third shift. Under Standing Order 6 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the Management could not discontinue shift working without one month's notice having been given prior to such discontinuance. Mr. Majeed, the learned Repre--sentative for the appellant, however, contended that the Management did not give a month's notice prior to the discon--tinuance of the third shift. There is no force in this contention. The Management had allowed a month's pay in lieu of notice.This to my mind 'will be a sufficient compliance of Standing Order 6.
11. The question as to whether the notice dated 8th March 1968, terminating the services of. 40 of its workmen was a bona fide order is very much strengthened by the conduct of the Management.
The Management was not only obliged to terminate the service of 40 of its workmen because of discon--tinuance of third shift, but had been unable to function the Mill since June 1958, up-to- date: The termination of the services of 40 of its workers cannot be said to be the result of any- victimization on the part of the Management. It was a simple termination of service because of the exigency of time. The Management by carrying out the order of the Food, Department could not keep on its roll some persons, whose services had been terminated, keeping in view its finances and, efficient running of the Mill.
12. The question as to whether the notice dated 8th March 1968 was the result of victimization on the part of the Mill is a question of fact. It would depend upon the circumstances of each case.
There is the statement of some of the workers, whose services had been terminated and on the other hand, there is the statement of the Mill's Manager. It was open to the Court to accept the statement of the Manager of the Mill. The Manager of the Mill acted without any malice. He is supported by the order of the Food Department and also by the circumstances that the Mill has ceased to function since June 1968, up-to-date.
13. For these reasons, I would maintain the order of the learned Labour Court. The appeal is dismissed.