1. WAHIDUDDIN AIIMAD, J.-This appeal by special leave arises out of an award in Industrial Dispute No. 7 of 1960, announced by the Industrial Court on the 6th March 1962. By this award the Industrial Court rejected all the demands of the Bata Mazdoor League except one, viz. payment of wages for weeks 47 to 49 of 1957 to the workers in Departments 421- and 424.
2. The relation between the workers and the Management of the Bata Shoe Company (Pakistan)
3. Limited has not been very happy since a very long time. The first trouble between the Management and the workers started in 1956. In order to settle the dispute, the Governor of West Pakistan, by Notification No. LAB-16/42-56 dated the 7th November 1956, appointed Sh. Muhammad Rafiq, the then - District and Sessions Judge, Lahore, for the adjudication of the disputes raised by the workers. The Management and Bata Mazdoor League entered into a compromise, which was incorporated in an award published in the Gazette of Extraordinary dated the 2nd March 1967.Subsequently, fresh disputes arose between the workers and the Management. The workers went on strike on the 19th June 1958. The respondent-company made an application to the Provincial Government for reference of the said industrial dispute to a Tribunal. Thereupon, the West Pakistan Government under section 7, subsection (1) of the Industrial Disputes Act, 1947, by Notification No. L. 8-2/58, dated the 10th July 1958, appointed Mr. S. A. Haq, the then District and Sessions Judge, Lahore, as an Industrial Tribunal for adjudication for all industrial disputes in accordance with the provisions of the said Act.
4. This industrial dispute was still pending before the Industrial Tribunal when the Industrial Disputes Act under which the Tribunal was set up, was replaced by the Industrial Disputes Ordinance LVI of 1959 which came into force on the 15th of March 1960. The Government of West Pakistan, by Notification No.XI-3-15/60 dated the 31st May 1960, constituted Industrial Court consisting of Mr. Justice Muhammad Shafi and' two Members, namely, Mr. Abu Saeed Anwar, representing the workers and Mian Allah Bakhsh representing the employers. The industrial dispute between the parties was referred to that Court for adjudication. The following demands, amongst others, werereferred to the said Court :- Demand No. 1(a). Re-instatement of the workers dismissed between the 9th March 1958 and 25th March 1958 and not re-instated up- to-date. (b) Dismissal on re-consideration of the case of 113 workers in pursuance of the award made. by the Chairman, Conciliation Committee presided over by the Secretary to Government of West Pakistan, Industries, Commerce and Labour Department ; and
(c) Re-instatement of 10 members of the fixed salary staff dismissed on 8th/9th April 1958.
5. Proceedings for the adjudication of the above disputes continued before the Industrial Court. The Industrial Court, as already stated, rejected all the demands of the appellant-League, except one, which has nothing to do with the points raised in this appeal.
6. The appellant has challenged the award of the Industrial Curt by special leave to appealunder section 2(4) of the Laws (Continuance in' force) Order, 1958 read with Article 160 of the abrogated constitution of Islamic Republic of Pakistan, 1956. This Court, by order dated the 20th December 1962, granted leave to the appellant to consider the following questions and dismissed the appeal on the rest of point: (I)Whether the dismissal of Abu Raza Khan and Khurshid Alum was justified?
(2) Whether the finding that the strike of the 27th March 1958, which followed an alleged lock-out by the Company, was illegal can be sustained on the facts found? Consequently, what is the effect of the award in relation to.
7. (a)Fixed Salary Staff and
(b) to the -continuity of service of the affected workers in respect of gratuity, provident fund and other emoluments.
(3) Whether the award in relation to the strike of the 19, June 1968, reading as under: ---Through they (the employees) are not paid wages for the strike period, they would be entitled to all other emoluments as if no break has occurred in their service--- can beinterpreted as awarding basic wages to the worker?
8. Raja Muhammad Akram learned counsel for the appellant has not pressed point No.3 and has given it up. We are, therefore, only concerned with point no 1 and 2.
9. I will first take up question No. (1), which is as under: "Whether the dismissalof Abu Raza Khan and KhurshidAlam is justified."
10. The appellant---s case is that the dismissal of Abu RazaKhan and Khurshid Alam is not only unjustified and illegal but also malicious and a measure of victimization. The facts relating to their dismissal briefly are: Abu Raza Khanwho was produced in Court as P. W. 6 joined the service of Bata Shoe Company on the 25th of November 1947 at Rs.16 per week plus dearness allowance. Later on his wages were increasedto Rs. 56 per week plus Rs. 12-8-0 as dearness allowance. The case of the appellant before the Industrial Court was that Abu Raza Khan was a Foreman but the case of the Management was that he was only a worker and not a Foreman. The learned Industrial Court, after going through the evidence, produced by the parties has held that AbuRaza khan, on the 1st January 1958, was working as a Foreman in the respondent-company. On the 1st January 1958, the respondent-company levelled a charge against him that he had marked FazalIlahi Cont. No. P-th 5147 Department 301 as present on Monday the 30December,1957, although he was absent. A further charge was levelled against him that he refused to prepare the working programme of his department 301 mixing for Saturday and Sunday. These charges were enquired into and on the 9th January 1958, they were found to be established against him. The Management issued the following order, Exh. P. W. 6/9, to him on the 9th January 1958: "With reference to your reply to charge-sheet No.3957, dated the 5January 1958, your explanation has been found to be absolutely incorrect and is not acceptableto us.
11. You have been found guilty of insubordination under sub- clause (e) of Article 12-B of our Standing Orders and rules by disobeying the instructions of your superior in respect of preparing the overtime of your Department on 2nd January 1958, for which you are liable to summary dismissal under the said Standing Orders and Rules. Besides on going through your personal record, we find that throughout the tenure of your service, your work has been most unsatisfactory. You have all along been inefficient and slow in settlements for which on the recommendation of your incharge, your increment was stopped once in 1949.
12. You were found surplus in the Rubber Factory, but the Management on compassionate grounds transferred you to the Sales Department in week 39/1953 on the same salary and grade as you were drawing in the Rubber Factory. But the change of department did not change your continued inefficiency in spite of the best efforts of your incharge and you were transferred back. to the Rubber Factory.
13. No less than 8 charge-sheets were issued to you on different occasions for inefficiency, carelessness in duty, insubordination and for advocating stow down in your Department. You have also been making false allegations against your superiors, which you have never been able to substantiate.
14. On 30-12-1957, you marked one workman as present where--as he was actually absent from his duties. You were charge-sheeted for the same but to support reply with documentary proof, you obtained the signatures of some workers by misrepresenting the fact to them thus creating a false evidence in yourfavour.
15. In view of the facts briefly narrated above, you are liable summary dismissal but it order to save you from the hardship which may be fall on you as a consequence of your dismissal, we have decided to transfer you to our retail Selling Organization as under-training Salesman at our Wah Cantt. Retail Shop on the same salary as presently drawn byyou.
16. You are, therefore, hereby instructed to report forthwith to our Sales Personnel Department for further orders. Your documents have been compiled and your dues are being paid to you separately by our pay roll Department.
17. This order was communicated Abu Raza Khan, Who signed Exh. P. W. 6/10, saying; that he had, studied the Bata Shop Employees Standing Rules and Orders thoroughly and he shall abide by the same during the discharge of his duties as a Shop-Employee of the Organization. Later on, he, however, refused to accept the transfer on the ground that it was against the Collective Agreement arrived at between the Bata Mazdoor League and the Management wherein it was provided that the transfer of the workers or the Foreman could only be made within the of factory of Batapur and not outside it. The Industrial Court, after going through the facts of the case, has come to the conclusion that the transfer of Abu Raza Khan was in accordance with law and by not accepting it he has disobeyed the order of the Management and, therefore, he was rightly dismissed.
18. It is unnecessary to go into the question whether the respondent-company was competent to transfer Abu Raza Khan to a place outside Batapur. A preliminary objection has been raised on behalf of the respondent-company that as Foremen were not covered by the definition of "workman" under the Industrial Disputes Act, 1947, the workers were not entitled to raise the question of their re-instatement as an industrial dispute and if it is raised the Industrial Court couldth th not adjudicate on the same as it was not an industrial dispute. The question, therefore, for consideration is whether a Foreman is a workman under the Industrial Disputes Act. The definition of "workman" in the Industrial Disputes Act, 1947, is as under: " Workman' means any person employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purposes of any proceedings under this Act in relation to'an industrial dispute, a workman discharged - during that dispute, but does not include any person employed in the naval, military or air service of the Government."
19. It will thus be seen that three essential requisites are necessary to make an employed person a `workman' for the purposes of the Act:
(1) He must be employed for hire or reward. Even apprentices, to come under this definition, must be paid apprentices. The employment may be temporary or permanent.
(2) He must, be employed to do any skilled or unskilled manual or clerical work.
(3) He must be employed in an `industry'.
20. So far as the Foreman is concerned, he is a person holding supervision and Management in a factory. He cannot, therefore, be held to be a workman. The case of a Foreman came up in C. W.
21. Raymond v. Ford Motor Co. of India Ltd. ((1950) 2 F J R 100). The person concerned was employed as a General Assembly Foreman and according to the instructions given to him by his employers, it was his duty to get the work of repairs done by his staff and. to complete the repairs or adjustments found necessary after inspection. It was contended on his behalf that he was a "workman" as defined in the Act as he had to do skilled manual work in checking brakes and traffic indicators and focussing of lights of motors cars. He was described in the factory Pass as "Supervisor of inspection and repair operation---.It was held by the Appellate Tribunal that he was not a workman, as he was not employed to do any manual or clerical work for hire or reward. The mere fact that he had to do somethingby his own hands by way of checking or testing work done byother workmen did not make his work manual work within the meaning of this clause. In the case of Crushing (Pakistan) Limited Workers--- Union, Lahore v. Messrs Crushing (Pakistan) Limited, Lahore (1962 PLC 1275), it was observed as under: "Workman.-Foreman with functions of Supervisor in character not a workman. Not covered by expression ---any person---in section 2(h)." .
22. Although the work entrusted to a Foreman in the respondent --company, Mr. A. Dolezal, R. W. 22, General Manager, Bata Shoe Company, has stated at p. 311 of Part I of the paper book as under: "Foreman of the different departments prepares the salary statements of the workers working under them. The wages of the workers are calculated after every week. They are not calculated every day except of course in the case of workers who have worked for less than a week. Foreman prepares daily `Saldo' of the Workshop. Saldo gives the minor details of the consumption of the period and of the production of the articles, i.e. it gives the stock position of .his particular department."
23. Exh. P: W. 25/2 at p. 222 of Part III of the paper book gives the working programme of the Foreman amongst others as under: "He is to check workers coming to workshop and see whether they clean and oil their machines before commencing work. He also checks the statement of attendant and absentees. Calculates daily record wages. Supervises exchange of materials and inspects the Exchange Book see that all the repairs are settled daily. Finishes daily work in conference with all manipulants and controllers.
24. He is also to mark attendance, hourly statement of production checks at least 10% of produced shoes, prior to delivery to receiving room, pair by pair. Checks thoroughly at least one window- portion of each rack with delivered materials from manipulation and also checks at least .50 pairs of ready uppers."
25. This clearly shows that the job of a Foreman is to supervise the work of his staff and to control their work. The mere fact that he is to do something with his own hand by way of checking testing work done by other workman will not make his work manual within the meaning of the above mention definition. In my opinion, the industrial Tribunal was not competent to considerthe dispute raised about Abu Raza Khan.
26. It is next contended on behalf of the appellant-League that even if Abu Raza Khan was not a workman, the workmen were entitle to raise this dispute about him before the. Industrial Court an Industrial Court had jurisdiction to adjudicate upon such dispute. This contention also has no force.
27. This aspect of the question was considered by this Court in the case of PakistanTobacco Company Ltd. v. Pakistan Tobacco Company Employees--- Union, Dacca and other (PLD 1961 SC 403=1961 PLC 1033), It was held that a question of serving condition of salesman of a company is not a question, which could validly be referred to the Tribunal. It was farther held that a dispute raised by the workmen against their employers, for the benefit of a class of employees (salesmen) who fall totally in a different category from themselves, is an abuse of the machinery of the Act. It was further observed as under: ---While it is evident that the expression`any person' in the definition of `industrial dispute' cannot be confined to persons included in the category of workmen, having regard to the scope of the disputes specified in the same definition, work cannot be permitted to raise as an industrial dispute with their employees, questions affecting the service conditions of any employee in the same establishment who belongs to a superior category, distinct 'from and, in a sense, above the body of manual and clerical workers, who are collectively describes: as `workmen'. The settlement of the service conditions of such employees is to be effected freely, within the scope of the, law of contract, and is not susceptible of control through the instrumentality of the Industrial Disputes Act."
28. I would, therefore, repel the contention of the appellant that the workman are entitled to raise the questions relating to other employees of the respondent-company and the Industrial Court was competent to adjudicate upon them. In this view of the matter; the learned Industrial Court was not competent to decide dispute about the transfer of Abu Raza Khan.
29. This brings me to the case of Khurshid Alam P. W.
5. He was recruited as clerk in the Bata Shoe Co., on the 22nd of "August 1949. On the 21st March 1958, when he was working in department 608 in Batapur, he was transferred by order, Exh. P. W.5/2, to the Bata Shoe Company, Retail Organization as U/T Shop Manager at their Retail Shop at College Road, Rawalpindi. He protested against this order and made an endorsement on the margin of Ext. P. W. 5/2 that his transfer was against the Collective Agreement. On the same day another Charge- sheet was given to him to show cause why his services should not be terminated because of his refusal to accept transfer. In reply to his charge-sheet, he wrote, Exh. P. W. 5/4, alleging that the Standing Orders and Rules do not contemplate transfer of an employee to a place where these standing Orders and Rules do not apply and that an order which puts an employee outside the scope of the agreement is contrary to the Standing Orders and Rules. It may be noted that the case of the termination of his services was also referred to Mr. Shah Zaman, R. W. 31, the then Secretary of the Industries Department, Government of West Pakistan and Khurshid Alam was allowed .to work on the 16th April 1958. Mr. Shah Zaman, however, found that the termination of his service was proper and, therefore; he was dismissed from service.
30. In his case also an objection has been raised that he is a Supervisor Invoice and, therefore, he was not a workman within, the definition of the Industrial Disputes Act. Khurshid Alam, in his evidence before the Industrial Court, has clearly stated that he was a clerk at the material time. The evidence in rebuttal is of Mr. Bashir Ahmad. R. W. 7.He has only stated that in 1958 Khurshid Alam was Supervisor of the department. There were six persons working under him. They were called clerks.
31. The clerks used to calculate the goods supplied by Bata Shoe Company to the Branches and Khurshid Alam was checking the valuation done by the clerks and recalculating the total supply of the factory. This evidence does not lead to the conclusion that Khurshid Alam was not a workman.
32. His job appears to be of a clerical person. Moreover, there is nothing to show what are the duties and responsibilities of a Supervisor Invoice. In its absence, I will hold that Khurshid Alam was a member of clerical staff and' his case falls within the definition of workman under the industrial Disputes Act. I am, therefore, satisfied that the learned Tribunal was competent to consider the question whether his transfer was proper or whether lie was rightly dismissed.
33. After going through his case I am of the opinion that the respondent-company was not justified in transferring him from Batapur to Bata Shoe Company as U/T Shop Manager at their Retail Shop at College Road, Rawalpindi. It is no doubt true that the Management was entitled to transfer their employees from one department to another department. Clause 6 ofExh. R. W. 22/3 reads as under: "The question of transfer is entirely at the discretion of the, company and a workman is bound to accept the transfer when made, It is understood that the income will not suffer on account of the transfer unless such transfer amounts to demotion."
34. The learned counsel for the respondent-company was unable t refer to any condition in the Collective Agreement showing that the respondent-company had the power to transfer any workman from one place to another place outside Batapur. In the absence of any such power in the Collective Agreement, I am satisfied that the transfer of Khurshid Alam was not proper. The allegation of the Management that he refused to accept the transfer order is also without force.
35. The transfer was received by Khurshid Alam and he made an endorsement on it saying that his transfer was against the Collective Agreement. In my opinion, the course adopted by Khurshid Alam was props and it cannot be said that he is guilty of insubordination by returning the transfer order. 1 would, therefore, re-instate him in the post held by him in the respondent-company.
36. The second question for consideration is whether the finding that the strike of 27th March 1958, which followed an alleged look-out by the company, was illegal can be sustained on the facts found. The case of the appellant Bata Mazdoor League is that there is weighty evidence on the record showing that the strike was in consequence of illegal lock-out and, therefore, perfectly legal.
37. On the other hand, the case of the respondent-company is that the strike was illegal because it was started much before the time fixed by the appellant-League. IV is not disputed that Bata Shoe Company is a public utility service under the Industrial Disputes Act, 1947. The appellant-League served a strike notice tinder ~he Industrial Disputes Act or, the respondent-company. The strike notice fixed 7th April 1958, as the date on which the strike was to begin. Later on, the date of the strike was extended tri by a telegram to 9th April 1958. The conditions in. the respon--dent-factory at Batapur were not very peaceful. The employees in spite of the Collective Agreement entered into, on the 1st April 1955, which was made the basis of compromise before the Industrial Tribunal consisting of Mr. Muhammad Rafiq, did not stop agitation and there were occasional cases of slow down and partial but illegal strikes in. the workshops. On the 25th November 1957, there vas trouble in the machinery hall where the workmen 'struck work illegally on the plea that the 13 casual workers who had become surplus should be called back to work. On the 9th December 1957, the workers of the Modelling Department struck work and resorted to booing, cat-ceiling and refused to accept transfer to Leather and Rubber Factories from where they had been originally transferred to Modelling Department. In the first week of March 1458, the workers started taking out unruly and disorderly processions against the company. On the 2nd March 1958, when Mr. Thomas J. Bata, the Chief of the Organization visited the factory, the workers staged, the demonstration against him.
38. In this background, the Industrial Court has come to the following conclusions: "(1) From this mass of evidence produced by the parties one can safely conclude that right from the beginning of March 158, up t6 the 25th March 1958, the workers of the Bata Shoe Company used to take out processions, shout slogans, advocate the boycott of Bata's goods. It is also proved as has been admitted by some of the witnesses of the petitioner that the workers resorted to sit down strike on certain days and had also slowed down the work. . The reasons given by the Union that production was slowed down on these days because the material was not available or the machine had gone out of order has not been substituted by any satisfactory evidence. The evidence produced on this point by the Union is of partisan character and extremely discrepant.
39. Neither the Bata Mazdoor League nor the' Management has brought upon the record as to why did? the workers take out processions, resorted to sit down strike or slowed down the production.
40. There is a hint here and there that 13 temporary workers were discharged by the Management which was resented to by the other workers of Bata Shoe Company who wanted these 13 workers to be made permanent. May be that apart from this demand the workers had some other demands too which were mention in the strike notice given by the Bata Mazdoor League to flue respondent on the 22nd 22 march 1958, threatening to go on strike with effect frown the 7th of April 1958. In this notice of strike 14 demands were made including the demand of re-instatement of certain workers.
41. But even if the worker had some demands against the respondent, they could not in law report to this sort of behaviour. These were the condition prevailing amongst the workers of Bata Shoe Company when the Company dispensed with the services of 19 workers mentioned in Annexure 'A' of Mr. T. Pirzada's affidavit dated 25th of February 1961. These 113 persons however were subsequently re-instated on the recommendations of Mr. Shah Zaman.
(2) In the case in hand it has been established beyond doubt that not only the workers participated in the procession they actually advocated to people to boycott the goods of Bata Shoe Company.
42. This has been admitted by some of the witnesses and has further been proved by the production two photographs on the record., Exh. P. W. 9/5 and Exh. P. W.9/6. Most of the dismissed workers who have appeared into the witness box, in support of their claim have admitted that they participated in the processions and in illegal strike two hour,. I am also inclined to accept the respondent evidence corroborated as it is by their complaint to the relevant authorities made at the time when such acts were performed that these persons indulged in booing, cat-calling and in disciplined behaviour. If the Management had refused to confirm some of their unconfirmed workers, the worker could not be given the right of taking out procession or to act in an in disciplined manner.
43. They could have given a notice of strike and then pursued the matter in accordance with law. They had no right to take out procession are create a chaotic condition in the Mill or in the country.
(3) The next question which has to be seen is as to whether any charge was framed against these persons before their services were terminated. The Management has examined several witnesses who have said that the charges were framed against all these persons and the charge-sheets were offered to them but with the exception of very few the workers refused to accept the same.
44. Most of these charge-sheets have been placed upon the record. I have no reason whatsoever to disbelieve the defence produced by the respondents on the account. The fact that some of the persons received the charge-sheets were prepared and offered to all these persons but some accepted them and some did not. After the charge-sheet were offered to them they knew that the enquiry would be held against them and it was their duty to participate in the enquiry and if they did not do so then the fault lies with them and not with the Management. In all these charge- sheets these persons were charged for indulging in indiscipline, riotous and disorderly behaviour and unlawful activities like booing while on duty in factory premises on the 25th of March 1958,and in breaching and inciting other workmen to engage in illegal strike and also slow down the work. All these charges in my view had been fully established against these persons. "
45. The case of the, appellant-League is that the strike was declared in consequence of lock-out and was, therefore, not illegal under section 34, subsection (3) of the Industrial Disputes Act. The question, therefore, for consideration is whether the strike commenced on the 27th March 1958, was in consequence of an illegal lock-out and, therefore, not illegal. The appellant---League has not produced any evidence to show that the respon--dent-company has declared any lock-out. On the contrary, the evidence shows that the respondent-company took disciplinary action against its workers which were responsible for creating riotous conditions in the factory. In my opinion, the respondent --company was perfectly justified on the conclusion reached by the Industrial. Court to take action against 135 workers who had taken prominent part in creating these conditions, in the Batapur Factory. There is a clear finding by the Industrial Court that charge-sheets were framed against the in disciplined workers but they refused to accept them. The company, therefore, after holding ex parte enquiry, dismissed them from service. The learned, counsel for the appellant was unable to show that this action of the respondent-company was against law or was `in the nature of lock-out. The learned counsel, however, referred to the definition of a 'lock-out' in section 2(1) of the Act which is as under: " ---Lock-out' means the refusal by an employer to continue to employ any number of persons employed by him."
46. According to the learned counsel for the appellant, the termina--tion of the services of the workmen was the refusal by the respondent-company to continue to employ any number of persons employed by them. This contention has no force. In the case of, Feroz Din and others v.
47. State of West Bengal (AIR 1960 SC 363), it was held that the words "refusal by an employer to continua to employ any number of persons employed by him" in section 2(1) do not include a discharge of an employee. It was further held that the words "refusal to continue to employ" in section 2(1.) mean a refusul by the employer to allow any number of persons employed by him to attend to their duties without effecting a termination of service. In this connection, the learned Judges of the Indian Supreme Court observed as under: "It, therefore, seems to us 'that the words `refusal by an employer to continue to employ any number of persons employed by him' in section 2(1) do not include the discharge of an employee.
48. We feel no difficulty in taking this view, for it does not seem to us that the words 'refusal to continue to employ' in section 2(1) plainly include a discharge, These words have to be read with the rest of the definition and also the word 'lock-out'. The other parts of the definition contemplate no severance of the relation of employer and employee. The word 'lock-out'. as statedin the Presidency Jute Mills Co.'s ease (1952 Lab. A C 62), in its dictionary sense means refusal on the part of an employer to furnish work to his operatives except on conditions to be accepted by the latter collectively. Therefore, in our opinion, the rules of interpretation do not prevent us from giving to the words used in the definition the meaning 'a refusal by the employer to allow any number of persons employed by him to attend to their duties without effecting a termination of service, as was done in the Presidency Jute Mills Co 's case, which would avoid one part of the Act coming in conflict with another."
49. This aspect of the question was also considered by the Appellate Tribunal in the case of Presidency Jute Mills Co. Ltd. v.Their Employees' Union. In that case also it was considered necessary to restrict the plain grammatical meaning of the phrase "refusal by an employer to continue to employ" in the definition as it would otherwise lead to inconsistent and absurd results when the other provisions of the Act are considered. In this connection the learned Tribunal observed as under: "The meaning of the phrase must, therefore, be 'refusal by the employer to allow any number of his workmen to attend to their duties without terminating their services'. Thus, in a lock-out, the relationship of employer and employee remains as before, only some links in the chain of that relationship are broken. This construction would avoid the absurdity and the conflict with section 33 which we have noticed above and would be in harmony with. the generally accepted conception of lock--out. Lock-out is the counterpart of strike. According to that conception, neither of them automatically puts an end to the relationship of employer and employee. In both the cases, the relationship continues anal in the one (strikes), it is the suspension of services by the employee themselves, whereas in the other (lock-outs), it is the suspension of their services by the employers.
50. In neither case is the employment finally determined, the intention of the workmen in the one case and of the employer in the other being that employment would be continued, as soon as satisfactory settlement of the cause is arrived at. The authorities have gone. so far as to say that a refusal of a number of workmen to work with the intention of or which has the effect of severing the relationship of employer and employee does not amount to a strike (Teller, Vol. I, section 79(2). The same principle would, in our opinion, govern - the cases of lock-outs. Thus, termination of service is one thing and lock-out is another."
51. Considering the case of the appellant from thisangle, it is quite clear that the words used in the definition of 'lock-out', namely; "the refusal by an employer to continue to employ any number of persons employed by him" does not cover the case of dismissal of employees by the employers. It will be seen that under section 22 of the Act, in a public utility service, no worker can go on strike nor-can an employer lock-out his workmen without giving notice of strike or lock-out within six weeks before the strike or lock-out as the case may be or within 14 days of such notice or before the date fixed in such notice or during the pendency of any Conciliation proceedings before a Conciliation Officer and seven days after the conclusions thereof. Section 24(1) of the Act makes a strike and lock-out in contravention of sections .10, 22 and 23, . illegal. Section 24(3) provides that a strike declared in consequence of an illegal lock-out and lock-out declared in consequence of illegal strike shall not be deemed to be illegal. In the present case, the respondent-company by terminating the services of their employees (135 workmen) did not declare any lock-out .in the factory. It only resorted to a legal method of terminating the services of their workmen who have indulged in illegal activities. On the other hand the appellant---League, by going on strike on the 27th March 1958, had gone on an illegal strike in contravention of section 22 of the Industrial Disputes Act and the finding of the Industrial Court that the workmen of the respondent-company had gone on ;4n illegal strike is based on proper appreciation of the evidence led before it. I see no season to differ from the view taken by the Industrial Court in this respect.
52. The next question for consideration is -as to what is the effect of the award in relation to Fixed Salary Staff. Under this demand the appellant-League has demanded the re-instatement of the following persons:
(1) K. A. Sattar P. W. 25,
(2) Ahmadullah P. W. 23,
(3) Rehmatullah P. W. 7,
(4) FaqirHussain:
(5) Muhammad Ismail,
(6) Muhammad, Amin,
(7) Muhammad Sharif, and
(8) Ali Ahmad.
53. These persons were also dismissed on account of the strike of 27th March 1958. The case of the appellant is that the strike of 27th March 1958, was legal an4 members of the Fixed Salary Staff were dismissed on the basis of Mr. Shah Zaman's award and, therefore, the above persons would be re-instated. I have already held that the strike of 27th March 1958, was illegal and the evidence on the record shows that the above-mentioned persons were dismissed from service on account of-their participa--tion in the strike of 27th March 1958.
54. The respondent-company has, however, raised objection that Mr. K. A. Sattar and Mr. Ahmadullah being non-workmen, the Industrial Court had no jurisdiction to enquire into the dispute -raised about them. It is an admitted position that Mr. K. A. Sattar P. W. 25 and Ahmadullah. P. W. 23 were working as Foremen in the Rubber. Factory when their services were terminated by the respondent- company on the 8th April 1958. It is in evidence that they were Foremen with all the powers of supervision, direction and control of the workmen working under them. Their case, therefore, is not covered by the definition of workmen as, has been held in the earlier part of this judgment. I would, therefore, hold that the Industrial Court had no jurisdiction to adjudicate upon the dispute raised about these persons.
55. It is submitted on behalf of the respondent-company that Mr. Rehmatullah P. W. 7 died daring the pendency of the appeal and his father has collected `all his late son's dues from the company on the 22nd January 1968. In these circumstances, no further order can be passed about the deceased.
56. So far as Faqir Hussain is concerned, he did not appear before the Industrial Court to press his claim for re-instatement. The respondent-company has brought it to our notice that Faqir Hussain on the 16th February 1966, settled his entire accounts with the respondent-company by receiving his dues in full and final settlement against the respondent-company And has given a total discharge to the company in this respect. The company has filed a letter (Annex. `A'), signed by Faqir Hussain, with their application dated the1st May 1970. In view of this document, the claim of Faqir Hussain has been finally settled and his case needs no further consideration.
57. Similarly; Muhammad Sharif "never appeared in support of his claim before the Industrial Court.
58. The case of the respondent-- company is that he has fully settled all his claim with the respondent-company on the 25th June 1964 and in settlement thereof gave letter of full and final satisfaction of all his dues. In support of it, the respondent-company has filed Annexure `D' along with their application dated the 1st May 1970. In view of this, the case of Muhammad Sharif does not require any further consideration.
59. Muhammad Ismail also never appeared before the Industrial Court in support 'of his claim. The respondent-company's case is that he has settled all his accounts with the respondent--- company. The respondent-company has filed his application for refund of the G. P. Fund and receipt of its payment as Annexures 'C' & 'C-l'. -In view of these documents, his case also is finally settled and deserves no further consideration. .So far as Ali Ahmad is concerned, the case of the respondent---company is that he settled all his accounts and claim against the respondent-company- on the 22nd May 1958 before the reference to the Industrial Court was made in connection with the dispute pending before this Court. He has given a No-Claim Certificate which is printed at p.433, Part III of the paper-book.So, his claim also requires no further consideration.
60. Muhammad Amin also settled his accounts in full and final settlement of all his dues on the 22nd May 1958 before the present dispute was referred to the Industrial Court. His No---Claim Certificate is printed at p. 434, Part III of the paper---book.
61. It will thus be noticed that the claim of K. A. Sattar and Ahmadullah cannot be considered because they arc not workmen within the definition of workmen under the Industrial Disputes Act. The case of Rehmatullah, Faqir Hussain, Muhammad Ismail, Muhammad Amin, Muhammad Sharif and Ali Ahmad does not deserve any further consideration as they have in one shape and the other settled their claims with the respondent-company.
62. This brings me to the last point, namely, as to what is the effect of the award to the continuity of the service of the affected workers in respect of gratuity, Provident Funds and other emoluments. In this connection, the case of the respondent---company is that the strike commenced by the Bata Mazdoor League on the 27th March 1958, which lasted up to the 15th April 1958, was illegal.
63. According to them, all the authorities on the subject are unanimous in holding that participation in illegal strike disentitled the workmen to provident funds, gratuity and all other benefits which are available to them in the normal circumstances. It is contended on their behalf that the workers are entitled to such benefits only when them is no break in their service. In the case of a legal strike the relationship of employers and employees does not all together cease but remains in a state of suspension but. in the case of an illegal strike, the relationship of employer and employees ceases to exist when there is a break of service. The contention of the respondent-company has not impressed me. These principles may be applicable to cases where there is no mediation or arbitration. In the present case, the parties, appointed Mr. Mehraj Khalid, Ex-Parliamentary Secretary as an Arbitrator and he appointed Mr. Shah Zaman, Secretary of Industries to settle the dispute between the parties. It was on their intervention that the respondent-company allowed all the persons, except 19, who participated in the strike unconditionally, to return to their work. They also re-instated 113 persons who were dismissed by them on the 25th and 26th March 1958. All this was done on the basis of mediation that took place at the instance of Mr. Mehraj Khalid. In my opinion, in such circumstances, in the case of those persons who were allowed to return to their work and were re-instated, there was no break of service and, therefore, they are entitled to gratuity, provident funds and other emoluments.
64. In the result, the appeal is partly allowed on the points referred to above. As the success is evenly divided, the parties will bear their own costs.
65. MUHAMMAD YAQUB ALI, J.--I agree. SAJJAD AHMAD, J.-I agree.
66. M. -R. KHAN, J.-I agree