1. AWARD SHAFFI MUHAMMAD R. AKHUND (CHAIRMAN).-This is an application under section 34 of I. R. O., 1969, moved by S. A. Bukhari, the General Secretary of the applicant-Union, seeking adjudication of industrial dispute between the parties.
2. The dispute, as disclosed in the application, is that the respondent, which is an establishment serving as a Public Hotel, have not faithfully complied with the provisions of the West Pakistan Standing Ordinance, 1968, and have not yet imple--mented the said law in respect of service record, casual leave, with pay, classification of workmen etc. Secured to the workman under the said law, in spite of their repeated requests. It is the case of the applicant-Union that the respondent have about 40 workmen, out of whim 28 had joined the applicant-Union by November 1969, and one of them, Anzer Gul, was elected as Chief Representative.
3. From the re-application of the applicant-Union, and the affidavit of Riaz Bukhari, however, it appears that the main dispute between the parties was the alleged lock-out by the respondent on 19th December 1969, refusing work to 28 em--ployees. It is alleged that the parties had arrived at a Settle--ment, dated 27th November 1969, according to which it was undertaken by the respondent that no worker would be victimised on account of an earlier strike and that they would be permitted to resume work. But, the respondent not only refused to alloys 28 workmen to resume duty after 19th December 1969, but also filed criminal casts against them. The applicant-Union had also filed an application under section 45 of I. R. O., 1969, seeking prohibitory order against the alleged lock-out. But, it was dismissed in default on 5th January 1970.
4. The respondents, in the reply statement, state that the respondent hotel employed only 16 employees, and hence, the West Pakistan Standing Orders Ordinance, 1968 was not applicable to them. They further contend that Riaz Bukhari has no locus standi and that there is no industrial dispute between the parties. Consequently, the application is not maintainable. They state that, to the best of their knowledge, the workmen of the hotel do not stick to the job which they leave after short duration. The hotel goes on employing new persons every now and then in the vacancies so created. According to the respondents, Riaz, Bukhari induced certain employees of the hotel to go on strike and intimated the others to join in the strike. He caused a fight among the employees which not only caused danger to the life of the employer and loss to his property but also created grave situation of law and order. Consequently, the Police arrested the offenders and challaned then under section 107 and 117, Criminal Procedure Code.
5. From the order-sheet, it appears that the matter was set down for hearing the legal objections raised by the respondents and for that purpose, the parties were allowed to lead evidence. The applicant-Union examined as many as twenty-one witnesses, besides Riaz Bukhari, who claimed to be the employees of the respondent hotel since six months to three years before they were locked- out. Some even claimed to be in the employment of the respondent hotel since 5 to 10 years. They stated that the respondent employed about 40 workers and all the witnesses were the members of the applicant-Union. This caused annoyance and displeasure to the management and they were locked-nut from 19th December 1969. Their version of the incident of that date is that the trouble was, in fact, started by the Proprietor of the hotel, who beat up some of workers and then broke the furniture and crockery of the hotel in order to in--stitute a false case against the employees. He called the Police and most of the witnesses were taken into custody. The case, however, ended into a compromise subsequently.
6. The respondents examined, Mohiuddin, one of the Partners of the respondent hotel. According to him, the trouble on 19th December 1969, started when some Union workers tried to collect subscription from persons who were not willing to pay. This resulted into a quarrel, during which furniture and crockery were broken. When he tried to intervene, hot water and plate of curry were thrown into his face. The Police arrived and arrested the offenders. The cases ultimately ended into compro--mise. He has produced the photographs Exhs. R. W. 1/1 to 1/5 purporting to show the broken articles etc., in the hotel, the copies of Police reports Exh. R. W. 1/5 and the compromise appli--cation Exh. R. W. 1/7. These documents show that the cases had been registered, under section 107, Criminal Procedure Code against the employees as well as the Management of the hotel and that they entered into a compromise which was accepted by the Court.
7. This witness further states that they had not removed the petitioners from service, but they were arrested by the Police. He however, admits that they had never-intimated the petitioners that their services had been terminated. According to him, none of the petitioners had come to him to seek the employment and hose who had left the service were all working at other places. He does not know of any Settlement between the employees and the Proprietor, Haji Muhammad, as they had taken over the charge of the Cafe on 15th December 1969. Besides this witness. Haji Mamoon another partner of the respondent hotel, had also "led an affidavit in which he maintained that there were only 16 workers employed in his hotel, out of whom 11 had found employment elsewhere.
8. He had attached a list of names of those 11 persons and the places they were working.
9. Now, as regards the first objection of the respondents that only 16 workers were employed in their establishment, they have produced no documentary evidence in support of their claim. They could have easily produced the Muster Roll or some other documentary proof from their hotel if their contention was true. But, there is only word of one of the Partners, and affidavit of another, uncorroborated by any other evidence. On the other hand, no less than 21 witnesses have deposed that they were the employees of the hotel, employed in various jobs which each has mentioned.
10. There is nothing on record to contradict their testimony. Therefore, I see no reason to disbelieve their evidence. Consequently, there being more than 20 persons employed in the respondent hotel, the provisions of the Standing Orders Ordinance are clearly appli--cable to them.
11. The next objection of the respondents is equally untenable has been urged that Riaz Bukhari, not being a worker of the respondents, is not competent to move the application. Riaz Bukhari is admittedly the General Secretary of the applicant-Union, and this Union has been recognised as the bargaining agent by the Settlement, dated 23rd November 1969, arrived at between the parties.
12. Though Mohiuddin has expressed ignorance of this Settlement, the respondents have nowhere denied the fact of the Settlement. The copy of the Settlement, produced by the representative of the applicant, shows that it was arrived at between the respondent hotel and the applicant-Union, and was signed by Haji Muhammad on behalf of the former and Riaz Bukhari and some workers of the hotel on behalf of the latter. Mr. Lodhi, the learned Representative of the applicants has referred in this connection to a Ruling of High Court of Sind and Baluchistan, Karachi, in Writ Petition No. 517/1970, though that authority ought to have been cited by the respondents. Mi. Lodhi has referred to that authority in order to show that it is not applicable to the facts of this case. In that case also, the Karachi Hotel Workers' Union had moved an application for lifting the lock-out imposed by the Hotel Columbus. It was, hold that the Union was not competent to represent the case of the employees of the Hotel Columbus and, consequently, the order of the Lower Court prohibiting the strike was set aside. But, as rightly pointed out by Mr. Lodhi, the facts of that case are distinguishable from the present case. In that case, it was proved that none of the employees of Hotel Columbus was the member of the Union, whereas in the present case, it is claimed that 28 employees of the respondent hotel were the members of the Union, and 21 of them have deposed to this fact in the Court. Therefore, there is no doubt in my mind that Riaz Bukhari, being the General Secretary of the applicant-Union which was recognis--ed as Collective Bargaining Agent by the respondent Hotel by virtue of Settlement dated 23rd November 1969, was competent to move this application.
13. Lastly, the respondents have contended that no industrial dispute exists, because it has not been raised in the prescribed manner, as provided by section 43 of the Industrial Relations Ordinance, 1969. They have referred to sections 26, 29 and 31, which lay down the procedure prescribed for raising the Industrial Dispute. But, in the present case, the main grievance of the applicant-Union is that 28 employees, who were the members of the Union, bad been locked-out without any notice of cause. Consequently, they could not have had resort to the procedure prescribed in the sections referred to above. It is admitted by the respondents that they had given no notice to the petitioners terminating their services. In fact, according to them, they had never terminated the services of the petitioners. Their plea is that no employee had approached them for reinstate--ment because most of them had found jobs some where else: But, the fact that the present application, alongwith the appli--cation under section 45, was moved shortly after the date of alleged lock-out shows that the workers were keen to be re-instated. The lock-out is alleged to have been imposed on 19th December 1969, while the applications have been filed on 31st December 1969. As regards the incident of 19th December 1969, the plea of the respondents that it was started by the workers appears doubtful. The Police reports, produced by the respondents, show that the cases were registered not only against the employees but against the members of the Management as well.
14. Mohiuddin admits that one of the accused, Abdul Rehman, is his son and the rest of the accused in that report are connected with the Manage--ment. The fact that the incident of 19th December 1969, took place only four days after the new Management took over on 5th December 1969, is also significant. It may be that the new Management might have continued to create trouble in the hotel in order to get rid of the members of the Union and to wriggle out of the Settlement arrived at earlier.
15. Therefore, for the reason stated above, the legal objections of the respondents are overruled. Since evidence has come on record to show that the respondents had locked-out the workers without any notice or without recourse to legal procedure, the affected employees are entitled to be re- instated with immediate effect.