This is an appeal against an award dated June 4, 1971 by the learned Chairman of the Second Sind Labour Court, Karachi. The facts giving rise to the appeal briefly put are these.
2. In April 1968, the workers of the appellant Mills came to know that the mills was going to close in the first week of May 1968. The workers approached the Conciliation Officer who started conciliation proceedings from the 9th of April 1968 and on failure of the conciliation proceedings on 21-5-1968 issued Failure Certificate on the 25th of May 1968. The Five Elected Representatives of the workers of the mills presented an application on the 17th of June 1968, requesting the Court to adjudicate upon the demands mentioned in the Schedule of the Failure Certificate. The Schedule to the Failure Certificate gives the following five demand:-
(1) Full payment may be made to all lock-out workers for the period for which they have been lock- out.
(2) Gratuity according to their service should be paid to every worker.
(3) Payment in lieu of unavailed Annual Leave to be paid to every worker.
(4) Notice pay should be paid to every worker.
(5) Earned Wages should be paid to every worker.
3. It may be stated at the very outset that the proceeding before the Court started under the Industrial Disputes Ordinance, 1968. The proceeding, therefore, should be deemed to continue under 1968-Ordinance. The learned Court after stating in the award that parties had filed written arguments stated the five demands which required adjudication by the Court. The Court stated as under :- "The only contention pressed by the respondent throughout is that this was a case of transfer of the workers from Pakistan textile Mills Ltd., to Messrs Dyer Textile & Printing Mills, their sister concern and since the workers refused to go for work in that sister concern. This was not a case of lock-out and, therefore, the claim of the workers cannot be sustained."
It is true the case of the Mills was throughout that the mills having closed or at any rate Manufacturing Section of the mills having closed the workers working in that section were transferred to the sister concern, Messrs Dyre Textile & Printing Mills. Some of the workers accepted the transfer and-others did not. On the other hand the case of the workers was that they have been locked-out. It was, therefore, necessary for the Court to give decision on the question of lock- out. In fact the demand No. 1 in respect of full payment is based on the allegation that they have been locked-out. There is no finding on the question of lock-out. The mere fact that the mills was closed or a section of the mill was closed will not amount to lock-out. The lock-out is defined under section 2(1) of the West Pakistan Industrial Disputes Ordinance, 1968. It means:- "lock-out" means the closing of a place of employment or part of such place, or the suspension, wholly or partly, of work by an employer, or refusal, absolute or conditional, by any employer, to continue to employ any number of persons employed by him, where such closing, suspension or refusal occurs in connection with an industrial dispute, or Is intended for the purpose of compelling persons employed to accept certain terms or conditions of, or affecting, employment.
It is clear from the definition that mere closure of a place of employment does not amount to lock- out. It would be lock-out only if the place of employment was closed because of some H Industrial Dispute or because of compelling the workers to accept certain terms affecting employment.
There is Ro evidence on the record to suggest that the place of employment was closed because of some Industrial Dispute. Of the Five Elected Representatives who appeared before the Labour Court Mr. Abdullah who worked in the Weaving Department of the Mill did not state that the mill was closed in order to affect the term of service in any way. The next witness is Muhammad Husain.
He also does not say that the mill was closed .In order to affect the term of their service. All he stated was that he was stopped to enter the mill on the 1st of May 1968. The third witness is Habibuddin. His statement is to the same effect as that of Muhammad Hussain. Under written arguments which has been filed by the workers dated 1st of March 1971 before the learned Court it has not been made clear how the mill was closed in order to affect the term of employment of the workers. In Arguments before me it was contended by the learned Representative Mr. Yousuf Khan that the mill was closed in order that the worker may be compelled to accept a change of condition of service namely to accept the transfer to another mill There is no force in this contention. Mr. Mohiuddin Shaikh filed his affidavit before the learned Court dated 18th of December 1970. He was cross-examined on the 24th of December 1970 by Mr. Yousuf Khan. He produced a Notice Exh. A.I. The relevant portion of the Notice is as under:- "As the machines installed are old re-conditioned and being obsolete uneconomical for operation, it has been decided to close the shed completely. Therefore for the reasons given above you are hereby transferred to Messrs Dyer Textile & Printing Mills Ltd."
Mr. Abdullah who appeared before the Labour Court as a witness and was working in the Weaving Department of the mill had admitted that the Weaving Section had been closed but that the Printing Section of the mill was going on. Mr. Mohiuddin in his affidavit dated the 18th of December 1970 stated as under:--- "That the Manufacturing Unit of the respondent Mills is closed and not functioning since 1st May 1968. In ail 76 workmen including office staff transferred to identical Manufacturing Unit of Dyer Textile & Printing Mills, Manghopir Road, Karachi, with full benefits and continuity of service. And all the workers so transferred with the exception of the applicants are working contendedly and happily in the Dyer Textile and Printing Mills.
It would appear from the above statement and as admitted by Mr. Abdullah that only Manufacturing Unit of the Mills was closed on that 76 workmen who were working in that Unit were transferred to another mills. The cross-examination is a short one and it would be useful to reproduce the same:- "I am the Group Manager in the Pakistan Textile Mills. It is a Private Ltd. Company. Ghani Bhai Dyer and Yaqub are the Directors thereof. Pakistan Textile Mill Processing Factory is a sister concern. It is at present working. Out of the 76 workers of the Pakistan Textile Mills, 31 workers have not joined Dyer Textile Mills, the sister concern. The transfer orders were served on the workers individually and also through a notice on the Board. I produce the Notice as Exh. A-I."
It is clear from the above cross-examination that the fact that Manufacturing Section of the mills was closed from the 1st of May 1968 and that 76 persons were working in that section has not been challenged.
4. Under these circumstances it cannot be said that the Manufacturing section of the Mills was closed in order to bring pressure on the workers of that section to accept transfer. In fact it appears to me that it become necessary for the Management to provide some job to the workers on closure of Manufacturing section. It further appears to me that the Mills acted bona fide to provide similar work to the workmen in another Mill of their own. The Mill had given the workers option to accept the transfer or not to accept the same. Who question now is that there being no lock-out of the workers whether they are entitled to any relief towards the payment of wages. The Manufacturing Section of the Mill having closed it was incumbent on the mills to have terminated the services of the workers of that Section of the Mills after giving them p month's notice or a month's pay in lieu thereof. In my opinion the mills did not give them one month's notice to terminate their services as the workers would become entitled to gratuity. In the Statement of Claims on behalf of the workmen dated the 17th of June 1968 which is signed by the Five Elected Representatives of the workmen, the following statement appears under demand No. 2 :---- "Since the respondents have flatly refused to continue to employ the workmen named in Annexure "A", the workers would be prepared to accept termination of their services provided such termination is made in accordance with the provisions of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 and the workers are paid their lawful dues in accordance with the same. It is therefore prayed that in case the Management decide not to take back the workers on duty, the affected workers, who are entitled to gratuity in accordance with the provisions of the said Ordinance and award to that effect be made by this Hon'ble Court."
The above was the prayer of the Five Elected Representatives of the workmen on 17th of June 1968.
1f the Management had complied with the Standing Order 12 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordi--nance, 1968, when the claim was filed on the 17th June 1968 those who did not want to work in another mills, though belonging to the same Management, would have happily accepted the offer. Under Standing Order 12(3) where the employment of any workman is terminated, the wages earned by him and other dues including payment for unavailed leave as defined in Clause (1) of Standing Order No. 8 shall be paid. This will be paid to the permanent workmen. The admitted position appears to me that all workmen who were given notice were Permanent Workmen and will be entitled to gratuity equivalent to fifteen days, wages for every completed year of service or any part thereof in excess of six months.
5. In view of the position taken by the workmen themselves in their Statement of Claim dated the 17th of June 1968, they are not entitled to have any thing more than what they claimed on that date It is the fault of the Management if the case lingered on for so long. I, however, cannot ignore the fact that if the Management had acted in accordance with law the workmen who did not accept the term offered by the Management to join another mill would not have been harassed by the, protracted litigation for about three years and would not have incurred any expenses of litigation. I would a award Rs. 1,000 as cost for this protracted litigation. The workmen ate not entitled to any other compensation. It is not the case of workmen that they have remained without employment till the decision of the Court. It appears to me that the workmen who did not accept the transfer to another mill got better term in some other mills and that is why they did not pray for their re- instatement.
6. There are to more points that require consideration namely (1) whether the Management could transfer the workmen from one mill to another and (2) whether the Court could order re- instatement of the employees without any prayer to that effect.
7. So far as the first point is concerned it is not the implied or explicit condition of service that the employer can transfer the workers from one concern to another concern though the concerns may belong to the same employer. The employer at best can transfer a worker in the same mill from one Branch to another, depending upon the nature of the work. The case relied upon by Mr. Puri reported in 1966 PLC 488, has no application to the facts of the present case. In that case the question was of transfer of an employee of the Bank from one Branch to another Branch. It was not a case of transfer from one Bank to a totally different Bank.
8. So far as the re-instatement of the workmen is concerned they did not make any prayer to that effect in their Demand Notice or in the Statement of their case. Some of the workmen who appeared before the Court also did not pray for their re-instatement. The only conclusion that I can draw is that these workmen had got some better employment somewhere and therefore did not pray for their re-instatement. ,
9. In the result the award given by the learned Court is modified to this extent that the workers who have not joined Dyers Textile & Printing Mills Limited will get one month's notice pay. They will get gratuity as provided under Standing Order 12(3). They will also get payment in lieu of unavailed Annual Leave. The workmen to received Earned Wages which the Management was always willing to pay but some of the workers did not receive the same. The Management to pay Rs. 1,000 (Rupees One thousand) only as cost of litigation within a week to Mr. Yousuf Khan, the learned Representative of the Workers on behalf of the Five Elected Representatives.