DECISION These are to connected appeals against an award dated the 27th of February 1971, whereby the learned Chairman of the Second Sind Labour Court, Karachi, ordered the re-instatements of S. I.
Raza and Masood Hasan Jdani, who were the President and General Secretary, respectively, of the Indus Chemical and Alkalis Limited Workers' Union (hereinafter called the Union) and 167 workmen and refused to re-instate other 8 workmen. The workmen were to be re-instated with back wages, benefits and continuity in their service. Appeal No. KAR-371/71, is by the Union against the order refusing to re-instate 8 workmen, while Appeal No. KAR-25/71, is by the Management against the order of re-instatement of 169 workmen. The facts giving rise to the appeals briefly put are these.
2. Messrs Indus Chemicals and Alkalis Limited (hereinafter called the Company) went into production in 1966. Indus Chemicals and Alkalis Limited Workers' Union was recognized by the Company in December 1968. On 20th April 1970, the Union sought to amend its Constitution by op-.Ring its member-- ship to other industries belonging to the Company. It sought permission of the Registrar, Trade Unions to approve its amended Constitution. The Registrar by its letter dated 25th May 1970, refused to grant permission to amend the Constitution of the Union. The Company on the same date, i.e. 25th May 1970, informed the Union that it had become illegal because of the amendment of its Constitution. The Union, however, after receipt of the letter from the Registrar, Trade Unions, held a General Body Meeting on 29 May 1970 and withdrew the amendment.
3. The Union, on 27th April 1970, gave a notice under section 26 of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance) On 16th May 1970, the conciliation proceedings havingth failed, the Union gave a Notice of Strike under section 28 of the Ordinance. Thereafter, conciliation meeting was held on 26Th May 1970. The Company, on the plea of re-organization, on 30th May 1970, terminated the service of 9 surplus employees including S. I. Raza and Masood Jilani, President and General Secretary of the Union. Notice of termination of service was served on 8 of the employees, except S. I. Raza, on 30th May 1970.
4. According to the Company, on 31st May 1970, S. I. Raza and Masood Jilani went to the Chief Engineer, Mr. Siddiqi, at about noon the and told him that they will go on strike from 1st June 1970. In the afternoon, they had a scuffle with Mr. Shaft, Security inspector of the Company. A report was lodged with the police on the same date about the incident. On 1st June 1970: Raza and Mani came to the factory and stopped the workers from going to work. They also went to to Bus Stops where they stopped the buses of drivers Nazir Ahmad and Chand Zaheer and told the workers, who were coming to the factory that there was a strike and that they should go back to their houses. The Company, on 1st June 1970 informed the Labour Director that there was an illegal strike. On 2nd June 1970, the Company posted a notice on the board informing the workers to resume duty or to submit explanations otherwise action will be taken against them. Some persons did submit their explanations, which were found to be unsatisfactory and they were dismissed from service on 12th June 1970. In all 167 workmen according to the Union were dismissed.
5. The Union made an application under section 34 of the Ordinance on 20th June 1970, praying for re-instatement of the workmen, whose services had been dispensed with during the pendency of conciliation proceedings, to withdraw the lock-out and pay the workmen their salaries for the period of lock-out. The learned Labour Court on 21st November 1970, after recording the evidence of the parties, dismissed the application of the Union on the ground that it was not a Collective Bargaining Agent. This conclusion was based on the ground that there was another Union and no referendum had been held to determine the Collective Bargaining Agent. On appeal, however, relying on section 52 of the Ordinance I did not agree with the conclusion of the learned Court and remanded the case for determination on merit.
6. The Company raised several pleas. It contended that the Union by amending its constitution became illegally constituted and, therefore, the application was not maintainable. That on 5th December 1969, an agreement effective for 18 months was signed by the parties, one of the terms of agreement was that no demand involving financial liability could be raised during the period.
The striken notice containing demands, which could not be raised, was bad in law. The services of 9 persons were terminated in the course of bona fide re-organization of the Company, which was in contemplation of the Management since a long the. So far as the incident of 1st June 1970 is concerned, it was alleged that there was a fight between the rival Unions, the Union urging for the strike while the rival Union resisted the same. The police had to be summoned to maintain law and order. Disciplinary action was taken against the persons, who had gone on illegal strike and those who were absent from duty. The Company, it was urged, did not violate any law or withdrew any rights guaranteed under the law and, therefore, the petition was not maintainable.
7. On behalf of the Union, three witnesses were examined namely, S. I. Raza, the President of the Union, Masood Jilani, the General Secretary of the Union and Shamim Asghar. The Company examined 9 witnesses, namely, Abdul Shakoor, Assistant Sub-Inspector of Police, Chand Zaheer, Bus Driver Nazir Ahmad, Bus Driver, Khalid Rashid Siddiqi, Chief Engineer, Javed Anjum, Assistant Manager, Mohammad Abdul Jaleel, Assistant to the Managing Director S. Sikandar Ali Shah, whose bus was intercepted, Ghulam Rasool. Worker, who was present in the Canteen when S. I. Raza is said to have addressed the workers and Mohammad Shafi, Security Inspector of the Company.
8. The learned Court, on the contentions of the parties framed the following points for determination :-
(1) Whether the petitioners were entitled to raise the industrial dispute?
(2) Whether the settlement entered into between the parties on 5-12-1969 would bar the dispute now raised?
(3) Whether the re-organization carried out and the subsequent dismissals were colourable and mala fide?
(4) Whether there was a strike or a lock-out, and whether the same was legal?
(5) Whether the petition as framed would be maintainable?
(6) Whether the petitioners were entitled to any relief?
9. In respect of the 1st ground, Mr. Shamsi, the learned Advocate for the Company on to-fold grounds, contended that the Union was not entitled to raise an industrial dispute. He contended, in the first place, that there being no evidence to show that the demands raised by the Union, were approved by the Members in a General Body Meeting. The learned Court came to the conclusion that it was not necessary for a notice under section 26 of the Ordinance that the same should have been approved in a General Meeting. In the second place, Mr. Shamsi had contended that the Constitution of the Union having been amended, the Union lost its entity. The learned Court came to the conclusion that the amended Constitution having not been approved of by the Registrar of Trade Unions, the Union cannot be said to be not duly constituted one.
10. On the second issue, the learned Court came to the conclusion that the agreement dated 5-12- 1969, did not bar the present dispute.
11. The learned Court tried Issues Nos. 3 and 4 together and came to the following conclusion :- "I am clearly of the opinion that S. I. Raza and Masood Gilani who were allegedly retrenched, and 167 workers (as mentioned In the Schedules) who were dismissed were deprived of their jobs, as a result of victimization and unfair labour practice in a colourable exercise of the power. The lock-out was illegal, because an industrial dispute had been raided; a conciliation meeting had already been held and the next one was fixed for 2-6-1970. It was the inalienable right of the workers to go on strike, after fulfilling the requirements of law. They lead pursued their course in accordance with law."
12. On Issue No. 5, the learned Court held that the Petition was maintainable.
13. In the result, as already stated, S. I. Raza and Masood Jilani alongwith 167 workmen were ordered to be re-instated with back wages benefits and with continuity of their service While the relief in respect of Majid Husain Zaidi and 7 others was disallowed.
14. Before I consider the contentions raised by Mr. Ali Ahmad Fazeel, the learned Advocate for the Company and Mr. Ali Amjad, the learned Advocate for the Union, it would be useful to clarify the position as to the number of workmen the Union wanted to be re-instated. In this connection, a reference may be made to the application of the Union under section 34 of the Ordinance. The relief runs as under :- "It is, further prayed that the Court may be pleased to order the re-instatement of the General Secretary and the President of the Union petitioner and of the workmen whose names are included in the List Schedules I and II to declare that the lock-out effected by the respondent and change in the service conditions is illegal, to require the respondents to withdraw the lock-out and to pay to all workmen their due salary for the period of lock-out."
15. Schedule I is at page 41 of the record of the learned Court. It gives the names of 9 persons including S. I. Rata, the President of the Union and Masood Hasan Jilani, General Secretary of the Union. Schedule II is at page 47 of the record of the learned Court. It gives the names of 29 workmen. If the application under section 34 of the Ordinance was strictly construed, the Union would not be entitled to claim reinstate--ment of more than 38 persons. It is, however, noteworthy that in para. 13 of the application under section 34 of the Ordinance, there is an addition of "and others" in the handwriting of someone which is not initialled. Para. 13 runs as under :- "That subsequent to the lock-out the respondents have issued charge-sheets to a large number of workmen falsely alleging that they have gone on an illegal strike from 1st June 1970, and have also mala fide and illegally terminated the services of workmen whose names are given in the Schedule II and others (the latter to words are in the handwriting of someone without any initial) without recourse to the provisions of law and/or holding any enquiry, and when in fact they had been locked-out."
16. I would not, in the circumstances which I would presently mention, bind the Union to the relief which they have claimed, i.e., the re-instatement of only 38 workmen. In the first place, no objection has been taken that the Union is not entitled to anymore relief than what it has claimed. In the second place, as would appear from the statement of Mr. Abdul Jaleel, Assistant Managing Director of the Company, who produced Exh. R. W. 6/14, which is a list of persons, who had been dismissed from service. It appears from Exh. R. W. 6/14 that 101 persons were dismissed from service on the ground of continuous absence from duty for more than 14 days, 13 persons were dismissed from service on the ground that they were on an illegal strike and 24 persons were dismissed from service on the ground of absence from duty the wore than 10 days and also because they had gone on au illegal strike. The total number thus comes to 138 persons, who had been dismissed from service. It is worth mentioning at this stage that according to Masood Haan Jilani, General Secretary of the Union 167 persons were dismissed by the Company. Jilani stated as under :- "The persons who had been locked-out on the 1st are 159 in number. I produce the list as Exh. A. W.
3/2. Apart from these 159 workers, the services of 8 other workmen had been terminated on 30th of May or thereafter."
17. It was necessary to refer to the statement of Jilani as the learned Court had ordered as under :- "The termination of the services of S. I. Raza and Masood Jilani and the dismissal of the other 167 workmen (other particularised in the Schedules on different dates in the month of June cannot be upheld."
18. There are three Schedules, to have been filed along with the application under section 34 of the Ordinance and the third is Exh. A. W. 3/2. The names of 159 workmen are given therein. There is on the face of it, some confusion in the operative portion of the order. At best, the Union was claiming for re-instatement of 159 persons together with 8 others. The total came to 167 workmen. The Court granted relief to 169 persons after refusing to grant relief to 8 persons. In these circumstances, namely, that no objection was taken by the Company that the relief claimed is limited to only 38 persons and the case of the Company also being that it had dismissed 138 persons, I would not limit the Union to the relief it has claimed.
19. I would now proceed to consider the contentions raised by Mr. Ali Ahmad Fazeel, the learned Advocate for the appellant Company. It was very strenuously contended in the first place, that the application under section 34 of the Ordinance was not maintainable as the pre-requisites for an application under section 34 of the Ordinance were not fulfilled. In this connection, he relied on section 43 of the Ordinance, which reads as under :- "No industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner by a collective bargaining agent."
20. The learned Advocate submitted that in order that an industrial dispute may be deemed to exist it was necessary that the provisions of section 26 and section 28 of the Ordinance should have been complied with. Under section 26 of the Ordinance if the Collective Bargaining Agent finds that an industrial dispute is likely to arise it shall communicate its views in writing to the other party. If the negotiations, which may start after the notice, fail, the Collective Bargaining Agent will give 21 days' notice of strike to the employer under section 28 of the Ordinance. It was only after these preliminaries have been gone into, it was contended, that an application under section 34 of the Ordinance could be made.
21. The argument of Mr. Fazeel appears to be plausible as under section 34 of the Ordinance no industrial dispute could be deemed to exist unless it was raised in the prescribed manner.
But on a careful analysis of the provisions of the Ordinance, I am clearly of the view, for the reasons which I would mention presently, that it is not necessary for an application under section 34 of the Ordinance to have recourse to the provisions of sections 26 and 28 of the Ordinance.
22. Prescribed has been defined in section 2(xix) of the Ordinance, which means, "prescribed, by rules." No Rules have so far been prescribed specifically for raising an industrial dispute. At any rate, even if the Rules had been prescribed for raising an industrial dispute it would not have been necessary to follow the Rules prescribed for raising an industrial dispute in order to make an application under section 34 of the Ordinance. A clear distinction exists between section 43 and section 34 of the Ordinance. It would be useful to reproduce section 34 of the Ordinance, as it stood before its amendment on 17th October 1970. It runs as under :- "Any party to an industrial dispute relating to a matter arising out of any right guaranteed or secured to an employee or workman by or under any law for the the being in force or an award or settlement may apply to the Labour Court for, adjudication of the dispute."
23. Industrial dispute is defined under section 2(xiii) of the, Ordinance, which means : , "any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen which is connected with the employment or non--- employment or the terms of employment or the conditions of work of any person ;"
24. It would appear from the above definition of industrial dispute that the scope of section 34 of the Ordinance is very limited. It is not in respect of all industrial disputes that the Collective Bargaining Agent can make an application under section 34 of the Ordinance. It is only in respect of a limited kind of industrial dispute, namely, "which is guaranteed or secured to workmen by or under any law for the the being in force or an award or settlement." It follows, therefore, that the application which can be made under section 34 of the Ordinance is not in respect of an industrial dispute as envisaged by section 43 of the Ordinance, but in respect of relief which the workmen are entitled under any law or award of settlement. The Collective Bargaining Agent, for instance, cannot raise an industrial dispute under section 34 of the Ordinance for bonus, house rent or uniform. These disputes can be raised only as industrial disputes.
25. The scheme of Industrial Relations Ordinance, 1969, it stood prior to its amendment on l7th October 1970, was recognize the supremacy of the Collective Bargaining Agent. The individual workman as under 1968 repealed Ordinance could not approach the Industrial Court under the present Ordinance even if he was dismissed or removed from service during the pendency of an industrial dispute. The 1969 Ordinance, while giving importance to Trade Unions divided the industrial disputes into 'to parts, namely, industrial disputes as defined under section 2(xii) of the Ordinance and the one as stated under section 34 of the Ordinance. The intention of the Legislature appears to be that in case of industrial disputes which have no basis under any law, award or settlement, the Collective Bargaining Agent should give notice to the employer conveying its demands. The Legislature provided an opportunity for negotiations between the Collective Bargaining Agent and the employer through the intervention of the third party, the Conciliator.
When conciliation failed, the Collective Bargaining Agent was given a right to bring pressure on the employer through strike notice. The workers could not go on strike immediately on giving a notice but had to wait for 21 days, providing sufficient the to the employer to consider the demands of the Collective Bargaining Agent. After the strike-notice the conciliation proceedings were to start again. In case of failure of conciliation proceedings the Conciliator was to try to persuade the parties to refer their dispute to an Arbitrator agreed upon by the parties After every method to bring about a peaceful settlement between the parties had failed, the Collective Bargaining Agent could go on strike in accordance with the notice of strike. In case the strike continued for more than 30 days, the Provincial Government could by order in writing prohibit the strike and forthwith refer the dispute to the Labour Court. It is noteworthy that the Collective Bargaining Agent could not on its own in spite of its Demand Notice and Strike --Notice approach the Labour Court for determination of its dispute. On the other hand, the Collective Bargaining Agent could approach the Court directly for redress of the grievances of the workmen in respect of those industrial disputes which arose out of any right guaranteed to workmen by or under any law or an award or settlement: It is important to note that even if the procedure prescribed for raising an industrial dispute was gone into the Collective Bargaining Agent could not approach the Court directly, except through the Provincial Government.
26. In the present case, some assistance can be derived from the Marginal Note to section 34 of the Ordinance, which runs as under :- "Application to Labour Court."
This is indicative of the intention of the Legislature read along with the contents of section 34 of the Ordinance that the Collective Bargaining Agent could apply to the Court directly without taking recourse to the detailed procedure for raising an industrial dispute. On the face of it, where certain right is guaranteed under any law, the question of negotiation through the Conciliator did not arise.
The aggrieved party could go directly to the Court and get the relief to which it was entitled under any law. Section 47 of the Ordinance, for instance, guaranteed that conditions of service would remain unchanged while conciliation proceedings or proceedings are pending before an Arbitrator, a Labour Court or Tribunal. An employer could not dismiss a workman without the permission of the Conciliator, the Arbitrator, the Labour Count or the Tribunal, while any such proceeding was pending before anyone of them. If there was violation of the guarantees provided under section 47 of the Ordinance, the Collective Bargaining t Agent could approach the Court under section 34 of the Ordinance without taking recourse to section 26 or section 28 of the Ordinance. The object of industrial Relations Ordinance, 1969, is not to create difficulties in the way of the Collective Bargaining Agent or the workmen to get quick redress of its grievances.
27. The conclusion that section 34 of the Ordinance is not depended on the procedure laid down under section 26 and section 28 of the Ordinance is borne out by subsection (5) of section 35 of the Ordinance. It runs as under :- "(5) A Labour Court shall-
(a) adjudicate and determine an industrial dispute which has been referred to it under section 32 or section 33 or relating the a matter in respect of which an application is made to it under section 34 ; (b)
(c)
(d)
28. On the one hand, the Court would have jurisdiction to proceed with an industrial dispute when it is referred to it by the Provincial Government and on the other hand, it can proceed to adjudicate the industrial dispute relating to a matter in respect of which an application is made to it under section 34 of the Ordinance.
29. Mr. Fazeel, the learned Advocate for the Company relied on the case between Abbas Ali Shah v.
WAPDA, Lahore (1970 PLC 376) in support of his contention that there must exist an industrial dispute before the Collective Bargaining Agent can move the Court under section 34 of the Ordinance. That case does not help the learned Advocate as the question before the Tribunal in that case was as to whether an individual could move the Court under section 34 of the Ordinance or not. In order that industrial dispute may exist it must be raised by a Collective Bargaining Agent and not by an individual workman. At any rate, no Rules have so far been prescribed for raising an industrial dispute within the meaning of section 43 of the Ordinance. The procedure prescribed under section 26 or section 28 of the Ordinance is quite different from what may be prescribed under any of the Rules for raising an industrial dispute relating to a matter guaranteed under any law. It cannot be said in the absence of Rules for raising an industrial dispute relating to a matter guaranteed under any taw that no dispute exists. The case of the Collective Bargaining Agent under the; application under section 34 of the Ordinance is that the Company has violated the provisions of section 47 of the Ordinance. Mr. Fazeel also relied on to cases of the Labour Court of East Pakistan, reported in 1970 PLC 67 and 1971 PLC 58. These cases are of no assistance as the point raised before me was not in issue before the learned Court.
30. For the reasons given above, I have come to the conclusion that the application under section 34 of the Ordinance; as it stood prior to 17th October 1970, is maintainable.
31. It was contended by Mr. Ali Amjad, the learned Advocate for the Union, that in case the Court were to hold that section 34 of the Ordinance, as it stood prior to 17th October 1970, was not applicable, the application may be treated under the present section as it stands after the amendment. The amended section 34 reads as under :- "Any collective bargaining agent or any employer or workman may apply to the Labour Court for the enforce--ment of any right guaranteed or secured to it or him by or under any law or any award or settlement."
32. Mr. Fazeel, the learned 'Advocate for the Company relied on a number of authorities in support of his contention that right to sue cannot be given retrospective effect ; it is only the procedural right which can be given retrospective effect. Having held that the application under section 34 of the Ordinance, as it stood prior to 17th October 1973, is maintain--able, it is not necessary to determine the exact scope of the amended section 34 of the Ordinance.
33. It was next contended that no valid industrial dispute can be said to have been raised for the following reasons :-
(1) That the notice under section 26 of the Ordinance contained demands of financial nature which could not be raised an agreed upon by the settlement dated 5th December 1969, up to 4th June 1971.
(2) That all the demands under the notice under section 26 of the Ordinance, except Demands Nos.
4 and 5, were covered by the settlement dated 5th December 1969 and therefore, could not be raised during the operation of the settlement, up to 4th June 1971.
(3) That Demands Nos. 4, 5, 14 to 19, in a notice under section 26 of the Ordinance did not constitute an industrial dispute, as they were not raised in the prescribed manner.
34. The short answer to these contentions is that the application under section 34 of the Ordinance is not directed against any of the demands raised in the notice under section 26 of the Ordinance.
The application relates to the violation of the Provisions of section 47 of the Ordinance. It may be mentioned that para. 14 of the application does not specifically refer to section 47 of the Ordinance, but the contents of the same would disclose that it had reference to section 47 of the Ordinance,
35. It was very strenuously contended by the learned Advocate for the Company that the Union having amended its Constitution on 20th April 1970, whereby it opened its member, able to more than one establishment and more than one industry disqualified itself to be legally constituted body and, therefore it was not entitled to make the application under section 34 of the Ordinance.
Before considering the contention of the learned Advocate for the Company, it would be useful to recapitulate certain facts. The amendment of the Constitution took place on 20th April 1970 subject to the approval by the Registrar, Trade Unions. The Registrar, Trade Unions refused to accord approval by its letter dated 25th May 1570 (Exh. A. W. 3/1). The Union held a General Body Meeting immediately thereafter on 29th May 1970. (Exh. A. W. 3/3). Exh. A. W. 3/3, is the record of the Proceeding of the General Body Meeting of the Union dated 29th May 1970. It appears from a perusal of Exh. A. W. 3/3 that the amendment of the Constitution was not acted upon and it was further resolved that the amendment should not be given effect to as the Registrar of Trade Unions had not approved the same. This fact is supported by the statement of Masood Hasan Jilani (A. W.
3). The only question that was put to him, in the cross-examination was that no General Body Meeting was held on 29th May 1970, That a General Body Meeting was held on 29th May 1970, is supported by the statement of S. I. Raza, President of the Union. The factual position appears to be that the Constitution was sought to be amended subject to the approval of the Registrar of Trade Unions. The Registrar having refused the amendment, the General Body withdrew the amendment.
At any rate, there is nothing on the record to show contrary to whet is recorded in Exh. A. W. 3/3 that the amendment was acted upon.
36. The point that requires consideration is as to whether the mere amendment of the Constitution of the Union, even though it may not be proper, would have ipso facto effect of cancelling the registration of the Union. I am of the opinion that mere amendment of the Constitution whereby the member--ship of the Union was opened to more than one industry would not operate as cancellation of the registration of the Union. Industrial Relations Ordinance, 1969, has created various functionaries, who have to perform their own functions as provided under the Ordinance.
One of the important function--aries under the Ordinance is the Registrar of Trade Unions, who is appointed by the Provincial Government under section 12 of the Ordinance. His function is given under section 8 of the Ordinance. When he is satisfied that the Trade Union has complied with all the requirements of this Ordinance, the 'Registrar under section 9 of the Ordinance shall register the Trade Union in a prescribed register and issue a registration certificate in the prescribed form.
Under section 9 of the Ordinance, the Certificate of Registration would be conclusive evidence that the Trade Union has been duly registered under the Ordinance. The power to cancel the registration of the Union has been conferred on the Registrar under section 10 of the Ordinance. The amended section 10 is more elaborate and gives more grounds for cancellation of the registration.
It reads as under :- "(1) The registration of a Trade Union shall be cancelled if the Labour Court so directs upon a complaint in writing made by the Registrar that the Trade Union has
(i) contravened any of the provisions of this Ordinance or the rules ; or
(ii) contravened any of the provisions of its constitution ; or (i.e) made in its constitution any provision which is inconsistent with this Ordinance or the rules.
(2) Where any person who is disqualified under section 7-A from being elected as, or from being, an officer of a Trade Union is elected as an officer of a registered Trade Union, the registration of that Trade Union shall be cancelled if the Labour Court, upon a complaint in writing made in this behalf by the Registrar, so directs."
37. It would appear from the perusal of the above section that the Legislature has provided an elaborate procedure for cancellation of registration of the Trade Union. The jurisdiction has been conferred on the Registrar and on a specific ground on the Labour Court. Under section 11 of the Ordinance an appeal against a decision given under section 10 of the Ordinance lies to the Labour Appellate Tribunal. On the face of it, this Tribunal cannot usurp the function of the Labour Court and that of the Registrar. The Appellate Tribunal is as much the creation of the Ordinance as the Labour Court and the Registrar of Trade Unions. The Tribunal is an Appellate Tribunal under section 11 of the Ordinance against an order passed under section 10 of the Ordinance or against an award given by the Labour Court. On appeal in either case the Tribunal can confirm, reject or modify the decision under sec--tion 11 of the Ordinance or the award under section 37 of the Ordinance. Mr. Ali Ahmad Fazeel, the learned Advocate for the Company had not shown me any provision of law under which I could usurp the function of the Labour Court and the Registrar. I cannot have more power than that has been conferred on me under the Ordinance. So long as the registra--tion is not cancelled under section 10 of the Ordinance I will go by the presumption under section 9 of the Ordinance that the Union has been duly registered. At any rate, it was open to the Union to withdraw the amendment that it had made on 20th April 1970, in its General Body Meeting held on 29th May 1970. It was contended on behalf of the Company that no such General Body Meeting was held on 29th May 1970. Mere assertion on behalf of the Company is not sufficient to disbelieve he General Secretary and the President of the Union, who are Supported by Exh. A. W. 3/3. In that view of the matter, the union cannot be said to be not a Collective Bargaining Agent on with April 1970, when it moved the application under section 34 of the Ordinance.
38. The contention of the learned Advocate for the Company was that there being no provision under the Ordinance for approval of the Constitution of the Union by the Registrar, the Registrar's refusal did not confer any right on the Union. In view what I have stated above, this contention has no force.
39. Mr. Fazeel, the learned Advocate for the Company contended that there was illegal strike. He took me through the evidence of Mohammad Shafi, Security Inspector, Abdul Shakoor, Assistant Sub-Inspector, Chand Zaheer, Bus Driver, Nazir Ahmad, Bus Driver, Khalid Rashid Siddique, Chief Engineer, raved Anjum, Assistant Manager, Mohammad Abdul Jaleel, Assistant Managing Director, Ghulam Rasool, worker and Sikar Ali Shah, a worker, in support of his submission that there was an illegal strike on 1st June 1970. In order to appreciate the contention of the learned Advocate for the Company, it would be useful to reproduce the definition of strike. It runs as under.- "'strike' means a cessation of work by a body of persons employed in any establishment acting in combination or concerted refusal, or refusal under a common understanding of any number of persons who are or have been so employed to continue to work or to accept employment ;"
40. It would appear from the above definition of strike that the main ingredient is that the cessation of work should be in combination or under a common understanding. In other words, a body of workers must stop the work under a common understanding or at in combination with each other.
If an individual workman does not attend the factory, it will not be--come a strike. There must a body of persons who refuse to attend the factory.
41. Keeping the essential ingredients of strike in view, I would now proceed to examine the witnesses-produced by the Company. The most important witness is Mohammad Shafi. He is working as Security Officer in the factory. He stated as under :- "On 1st June 1970, I was on duty at 7 a.m. When the workers of the night shift were coming out of the factory at about 7 a.m. They were stopped--- by Messrs S. I. Raza and Masood Hasan Jilani. While those who wanted to get inside for the morning shift were being stopped by them."
42. This is all that Mohammad Shafi stated about what took place on 1st June 1970. He does not state that a body of workmen joined hands with S. I. Raza and Masood Hasan Jilani, the President and General' Secretary of the Union, respectively, and refund to work on 1st June 1970. It is important to note that Mohammad Shafi, who is the Security Inspector of the factory, does not state that the other workers had joined S. I. Raza and Masood Hasan Jilani in stopping the people from going to work.
43. The next important witness is Mohammad Abdul Jaleel. He is Assistant Managing Director in the Company.
The relevant portion of his statement about strike reads as under : "On 1-6-1970, I had reached the Factory at about 7-00 a.m. On reaching the gate, I had seen a gathering of the workers, some of whom were trying to enter the premises of the Factory while the others were stopping them. When I had entered the Factory, I had seen some Policemen there.
Outside the Factory gate, I had seen Messrs S, I. Raza and Masood Gilani. There are 2 buses on hire bringing the workers to the Factory from Kalaboard and Korangi No. 6 respectively. The workers in neighbourhood come on their own. The workers who had not reported on duties on that date were removed from service. I produce the copy of the notice put on the Notice Board of the Company on 2-6-1970 as Exh. R. W. 6/12. Some of the workers who had struck the work on 1-6-1970 had started reporting for duty, on different dates later on."
44. Three things are clear from his statement. He does not assign any specific part to S. I. Raza and Masood Hasan Jilani, though they were at the gate. He also does not give, the names of the workers who were stopping others to go inside the factory. Thirdly, it is also clear that some of the workers who had not gone to attend the work on 1-6-70, had done so under pressure, as they had started reporting for duty later on. I conclude, after reading the evidence of Mohammad Shafi that what Mohammad Abdul Jaleel means by "some workers" stopping others from going in the factory is S. I. Raza and Masood Hasan Jilani. Mohammad Abdul Jaleel does not state that any body of workers in combination or under a common understanding had ceased to attend to their duties. If some of the workers did not go to attend to their work under threat of coercion brought about by S. I. Raza and Masood Hasan Jilani, it would not mean strike within the meaning of the definition of strike.
45. Another important witness is Abdul Shakoor, Assistant Sub-Inspector of Police, who was on duty on the 1st of June 1970. He stated in his examination-in-chief as under :- "I had gone to the factory on 1-6-1970 at about 6-30 a.m., I was accompanied by a Police Party. I had noticed a gathering or workers of the respondents outside the factory at about 7.00 a.m. I see 2 persons who are present in the Court now. I know them, i.e. Masood Gilani and S. I. Raza. The to were standing outside the premises alongwith other workers and were armed with lathis and dandas."
46. This is all he said about the incident of 1-6-1970. He does not state that any number of persons had refused to work on the 1st of June 1970. The impression one gets from the statement of the Sub-inspector is that S. I. Raza and Masood Hasan Jilani were at the factory to stop people from going to work. S. I. Raza and Masood Hasan Jilani may have others also along with them, but one does not know whether those others were workers of the factory.
47. Khalid Rashid Siddiqi is the Chief, Manager (Produc--tion) of the Company. He stated that on 31st May 1970, S. I. Raza and Masood Hasan Jilani had walked into his office and had threatened him with knife." It is noteworthy that Khalid Rashid Siddiqi does dot mention the presence of Masood Hasan Jilani and S. I. Raza on the 1st of June 1970. When he came to the factory at about 8 a.m. All that he stated was that the workers were raising slogans and that some workers were stopping others from going inside the factory. In cross---examination, he stated that he could not give the names of any of the workmen, who were stopping others from going inside the factory. He does not say as to what was the slogan that the workers were raising. No other witness has stated that the workers were raising slogans. The statement of Khalid Rashid Siddiqi does not make out a case of refusal to work under a common understanding.
48. Javed Anjum is the Assistant Manager, Time Office in the Factory. He was the General Secretary of the rival Union up to 9th June 1970. It is noteworthy that he did not state that there was any strike on 1st June 1970.
49. Chand Zaheer and Nazir Ahmad are Bus Drivers. It appears from the statement of Chand Zaheer that S. I. Raza had stopped his bus near Gulberg Textile Mills and had told the passengers that there was a strike and that in their own interest they should get down from the bus. He stated that when he reached the factory, "he told the Security Officer, namely, Mohammad Shafi that some of the workers had been made to get down on the way."
50. Similarly, Nazir Ahmad stated that his bus was also stopped on 1st June 1970 by Raza who told the passengers that there was a strike. The statement of those to Bus Drivers does not make out any case of strike. If some of the workers did not go to attend the work under the belief that there was a strike, it cannot be said that these workers had acted in combination or under some common understanding not to go to work. If there was a strike and peace-loving workers wanted to avoid trouble and went back home it cannot, be said that they participated in a strike.
51. Sikandar Ali Shah is a worker, who was in the bus of Chand Zaheer, which was stopped near Gulberg Factory. He stated that on 1st June 1970, S. I. Raza after stopping the bus said that they were observing a strike and that the workers should not go to the factory in their own interest. On his appeal some people had got down from the bus. Sikandar Ali Shah was at one the the General Secretary of the Labour Union, but was working as Plant Operator in the Company at the the when he gave his statement. In the face of it, Sikandar Ali Shah appears to have some motive in appearing against the Union, as otherwise being at one the the General Secretary of the Union, would have refrained from making a statement against S. I. Raza.
52. The last witness is Ghulam Rasool. He is a Junior Assistant in the Company. He did not depose anything about the incident on 1st June 1970. He stated that on 31st May 1970, S. I. Raza and Masood Hasan Jilani bad addressed the workers to go on strike on the 1st of June 1970. It is noteworthy that in cross-examination, he stand that he had not told about the speech of S. I. Raza and Masood Hasan Jilani to any officer of the Company. It is then surprising how lie was produced as a witness for the Company to report about the speech of S. I. Raza and Masood Jilani.
53. The conclusion one draws from the statements of the various witnesses who had been produced by the Company is that S. I. Raza and Masood Hasan Jilani, who had been dismissed by the Company on 30th May 1970, were trying to bring about a strike on 1st June 1970. It does not appear from the statement of the witnesses that they had succeeded in their effort. The workers were coming to the factory to perform their duties. S. I. Raza and Masood Hasan Jilani at the factory gate had threatened some of, the workers not to go inside the factory and S. I. Raza persuaded some workers, who were in to buses that they should go back to their houses as there was a strike at the factory. This to my mind does not make out a case that the workers, who went away to their houses, went with the intention of joining the strike. They would have gone to the factory had not S. I. Raza stopped their buses and given them a wrong impression of the happenings at the factory.
That these workers had gone back to their houses only to avoid trouble for themselves, is supported by the statement of Mohammad Abdul Jaleel, Assistant Managing Director of the Company, who stated is his examination-in-chief that, "some of the workers, who had struck work on 1st June 1970, had started reporting for duty on different dates later on."
54. I have, for the reasons given above, come to the conclusion that there, was no strike legal or illegal within the definition given under section 2(xxv) of the Ordinance.
55. The question now is as to whether there was any lock out by the Company. Lock-out is defined under section 2(xvii) of the Ordinance. It 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 an employer to continue to employ any number of workmen employed by him, where such closing, suspension or refusal occurs in connection with an industrial dispute or is intended for the purpose of compelling workmen employed to accept certain terms and conditions of or affecting employment."
56. On an analysis of the definition, it would appear that the main ingredients of lock-out are
(1) Closing of a place of employment or part of such place ; Or
(2) Suspension, wholly or partly, of work by an employer Or
(3) refusal to employ any number of workmen employed by him; Or
(4) such closing, suspension or refusal must occur in connection with an industrial dispute ; Or
(5) such closing, suspension or refusal is intended for the purpose of compelling workmen employed to accept certain terms or conditions affecting employment.
57. On behalf of the Union three witnesses have been examined namely, S. I. Raza, Masood Hasan Jilani and Shamim Asghar. S. I. Raza stated as under :- "About 167 workers, who were refused admission into the factory premises on 1st June 1970, and thereafter have not b; en allowed to join their duties till today. To my knowledge about 127 workers have not been served with any charge-sheet or dismissal letter at all."
58. On the face of it, S. I. Raza does not say as to why the Company had refused admission to the workers into the factory. He does not say that it was because of some industrial dispute or because the Company wanted to force these workers to accept some terms affecting their employment.
59. Masood Hasan Jilani stated as under :- "The persons who had been locked-out on the 1st are 159 in number. I produce the list as Exh. A. W.
3/2. Apart from these 159 workers, the services of 8 other workmen had been terminated on 30th May or thereafter."
60. It is noteworthy that what Jilani means by lock-out is termination of service by the Company, At any rate, Jilani does not state that the Company bad locked-out 159 persons with a view to force them to accept some terms affe,ting their employ--ment or in connection with an industrial dispute.
61. The last witness is Shamim Asghar. He is the Plant Operator. He speaks about himself alone. He stated that when he went on the 2nd of June 1970, he wanted to join in the Night Shift, but was not allowed by the Security Inspector. He was, however, offered by the Security Inspector to go inside only if he stopped his Union activities.
62. On the face of it, none of the three witnesses for the Union established, even remotely, the ingredients of lock-out.
63. Mr. Ali Amjad, the learned Advocate for the Union, however, very strenuously contended that the Company having failed to reply to a letter sent by Shamim Asghar on behalf of 66 workers, the Court should presume that the Company had locked-out these workmen. It is stated in the letter that the "undersigned workers had been reporting for duty on 1st and 2nd, but that they had been refused admission in the factory and that they had been threatened that they will be beaten, if they were to enter the factory." It is stated that this means a lock--out. The contention of Mr. Ali Amjad is that the Company having received the letter, they should have replied the letter and should have told the workers that, they were not being locked out. There is not much force in this contention. In the first place, the letter which is on the record of the case, does not give any address to which the reply, if any, should have been sent. In the second place, the question is as to whether this letter was received by the Manager of the Company. On behalf of the Company, the receipt of this letter has been denied. Shamim Asghar in examination-in-chief admitted that the Acknowledge--ment Due Receipt had been lost by him. He had, however, produced a copy of the Acknowledgement Due Card from the Post Office. He has also produced the Registration Receipt of the letter. The only presumption that can be drawn is that a letter was sent to the Company. There is no presumption as to the contents of the letter. The letter that had been produced by Shamim Asghar is on the record. Names of 66 persons are given in this letter. It is signed by 28 or 29 persons and the rest have thumb-impressed the letter. Shamim Asghar, on the other hand, stated that he had got it signed by about 67 workers. There is a great difference between the signature and thumb- impression. Shamim Asghar is a literate person. He had himself-drafted the letter. He should know the difference between signature and thumb-impression. However, even if the letter was received by the Management, it was not incumbent on them to send a reply to the same in the absence of any address given in the letter. The Company had already pasted a General Notice on the Notice Board on 2nd June 1970 that "the workers were directed to resume duty immediately or submit their explanations within 48 hours of the receipt of this general notice, failing which the Management would take necessary disciplinary action according to law."
64. In the face of this notice, it was not necessary to reply to the letter, which had no address. The Notice Board admittedly is outside the factory. If the workers, who are said to have signed the letter had been visiting the factory, they must have seen the General Notice on the Board. At least some of the workers, who were literate, must have read it. In these circumstances, I cannot conclude the existence of lock-out by the mere fact that the letter, Exh. A. W. 2/2 was sent to the Manager (Personnel) of the Company.
65. It is noteworthy that none of the workmen, who are said to have been locked-out by the employer, have been examined, except Shamim Asghar, who stated that when re went on 2nd June 1970 to the factory, he was not allowed to work by the Security Inspector. He does not state about the other workmen who are said to have been locked-out. At any rate, Shamim Asghar also does not depose that the Management bad locked-out some of the workers in order to compel them to accept certain terms and conditions affecting their employment or that they had been stopped to work because some industrial dispute was pending. I would hold that there was no lock-out, as alleged by the Union.
66. The question that now requires consideration is as whether the retrenchment of some of the employees by the Management was colourable and main fide. A reference para. 5 of the application under section 34 of the Ordinance dated 20th June 1970 would disclose that the Management during the pendency of conciliation proceedings terminated the services of Masood Hasan Jilani and S. I. Raza, who are the General Secretary and the President of the Union, respectively. The letters terminating their services had been attached to the petition, marked 'D' and 'E'. These letters state that their services were being terminated as a result of re-organization with effect from 1st Jane 1970. Under para. 6 of the application, it is alleged that the Company terminated the services of some more persons, whose list is given in Schedule I to the Petition.
Schedule I gives the names of 9 persons, including S. I. Raza and Masood Hasan Jilani. It is noteworthy that the application does not disclose the reason why the services of other persons, beside Raza and Jilani who are mentioned in Schedule I, had been terminated by the Management, except that their services were terminated during the pendency of conciliation proceeding. A reference to the reply by the Management dated 10th August 1970, would show that the services of these 9 parsons were dispensed with as a result of re-organization. The Management took the stand that no conciliation proceedings were deemed to have been pending because the notice under section 26 of the Ordinance was bad in law. The fact that the conciliation proceedings were pending at the the when the services ofthese 9 parsons were terminated has not been denied.
67. The case of the Union, as made out in the application was that no officer of a registered Trade Union shall be dismissed discharged or otherwise punished during the pendency of the conciliation proceedings without the permission of the Conciliator. Similarly, it was alleged in para. 6(ii) of application under section 34 of the Ordinance that no workman could be discharged daring the pendency of conciliation proceedings without the permission of the Conciliator.
68. Mr. Ali Ahmad Fazeel, the learned Advocate for the Company contended that the services of 9 workmen mentioned in Schedule I were dispensed with as a result of bona fide reorganization by the Company. In this connection, the learned Advocate contended that the reorganization of the services of the Company was in contemplation ever since 1968. He referred to Exh. R. W. 6/11, which is a notice by the Managing Director, dated 29th October 1968. The relevant portion reads as under :- "The Union should be explained clearly (and I have explained to their officials already) that the total strength should be brought down to an economic level and overtime brought down very substantially. I have already requested the General Manager to work out in collaboration with Dr. Barth the permanent strength of the sty (under normal circumstances prevailing after the frequent mechanical break-downs have been eliminated."
69. The learned Advocate next referred to Exh. R-9, dated 14th March 1969. This is a letter by the General Manager to the President of the Union. The General Manager requested the president of the Union to agree to a number of proposals including retrenchment of staff whenever it was considered necessary by the Management. The General Secretary by a letter of the same date, Exh.
R-8, addressed to the General Manager, agreed to the proposal regarding retrenchment.
70. The first phase of retrenchment took place on 4 December 1969. As it appears from Exh. R-10.
The number of persons in various categories of service were to be retrenched on the principle of first-come-last-go are mentioned is Exh. R-10. This retrenchment was to take effect from 8th December 1969. There is nothing on the record to show that the Union objected to bona fide retrenchment on the part of the Company. The second phase of retrenchment was proposed on 22nd March 1970, which is Exh. R. W. 6/8 by some one whose resignation is not given therein to be General Manager. The relevant para. Of the said proposal, which affects the 9 employees, who have been retrenched, runs as under :- "All supervisory posts will be abolished with effect from 1st June 1970. All members of supervisory staff, who are not given an appointment to a managerial post, including Foreman and Jamadars, will be given one month's notice of termination of service."
71. I have come to the conclusion for to-fold reasons that the reorganization schemes by the Management was a bona fide one. In the first pace, the scheme was in contemplation of the Management ever since 1968 and the Union had agreed to it presumably because the Union thought that it was a reasonable one. In the second police, the second phase of re-organization was thought of as late as 22nd March 1970. i.e. Much before the notice under section 26 of the Ordinance was given by the Union to the Company.
72. The question, however, is as to whether the scheme had been mala fide made use of is order to terminate the services of 9 persons, who are mentioned in Schedule 1 of the application. This is action of fact, which has to be determined on the evidence led by the parties.
73. I will take up the case of S. I. Raza, the President and that of Masood Hasan Jilani, General Secretary of the Union together. The learned Labour Court has come to the conclusion m respect of these to workers that it was a colourable exercise of power by the Company and that their services were dispensed with ulterior motive. So far as the other 7 persons are concerned, the finding reads as under :- "There is no evidence about the other 8 persona affected by the re-organization. It also cannot be said that there were others junior to them. No interference is called for in their case. So far as S. I.
Raza and Masood Hassan Jilani are concerned patently they were thrown out with ulterior motive."
74. It may be mentioned here that there is a mistake in the order of the learned Labour Court about the number of persons affected by the re-organization, besides Raza and Jilani. According to Schedule I to the application only 9 persons were discharged as a result of mala fide re- organization Therefore, the number of persons besides Raza and Jilani will be only 7, and not 8, as mentioned in the order. The circum--stances, which I would presently mention regarding the retrench--ment of S. I. Raza acid Masood Hasan Jilani are such which leads one to one conclusion that the Management dispensed with the services of these to persons under the colourable exercise of the power of retrenchment. In the first place, it would appear that S. I. Raza and Masood Hassan Jilani are not covered by the scheme of re-organization. It appears from their statement that they were not Supervisors. S. I. Raza stated that his duty was "to prepare reports on the daily clearance condition of the plant, to get machinery spares, repair or manufacture from the local market, if not available from Shershah Market." He was also given clerical work. He was not cross- examined, as to the duty that he used to perform in order to bring his case within the generalth scheme of retrenchment of Supervisors. Similarly, Masood Hasan Jilani stated that his duties were "analysing the samples and making the reports about the same". He was also not cross-examined so as to show that he was performing any Supervisory duty. It is also important to note that according to Exh. R-7/A, the Union and the Manage--ment had agreed that the permanent establishment was to be worked out by the Management and the workmen were to be placed in their respective Scales of Pay by 30th April 1969. Mr. Ali Amjad, the learned Advocate for the Union also relied on the statement of Mohammad Abdul Jaleel, who admitted that the production of the Company had gone up. His suggestion was that if the production had gone up, there was no necessity for re--trenchment. I, however, do not agree with this contention if the production had gone up, the number of people to the retrenched could be reduced in proportion to the need of the Company. S. I. Raza and Masood Hasan Jilani are active members of the Union. The Demand Notice and the Strike Notice were given prior to their retrenchment. This is also a circumstance in favour of these to persons that the company did not retrench them bona fide. At any rate, the cases of S.I.
Raza and Masood Hasan Jilani are clearly covered by section 47 of the Ordinance. The admitted position is that conciliation proceeding was fixed for 2nd June 1970. They to persons are officers of a registered Trade Union. Thee could not be discharged during the pendency of the conciliation proceedings without permission of the Conciliator. This is a very valuable protection afforded to an officer of a registered Trade Union. This has been clearly violated. It was, no doubt, contended by Mr. Fazeel that no conciliation proceedings could be deemed to be in existence because the notice under section 26 of the Ordinance was bad in law and that the Union could not raise the dispute which it already had raised in 1969. This submission has no force. The Company had submitted to the jurisdiction of the Conciliator earlier and it would have attended the meeting tired for 2nd June 1970 but for the aligned strike. The Company had written a letter to the Conciliator that because of the strike, there way no use to attend the meeting, which was fixed for 2nd June 1970. In fact, conciliation proceeding was to existence. Therefore, the Company should have observed the procedure prescribed under section 47 of the Ordinance before discharging the President and the General Secretary of the Union.
75. So far as the other 7 workmen, who are mentioned in Schedule I to the application, are concerned, in the absence of any specific evidence it is difficult to hold that they were the victim of any colourable exercise of power on behalf of the Management. The case of Shamim Asghar is also covered by the principle laid down under section 47 of the Ordinance.
He had appeared before the learned Court and stated in examination-in-chief that he was a member of the Executive Committee. That he was a member of the Executive Committee, has not been challenged in cross-examination. His services, therefore, also could not be dispensed with by the Management without complying with the provisions of section 47 of the Ordinance. He is an officer of the Trade Union within the meaning of the definition given in the Ordinance.
76. S. I. Raza, Masood Hasan Jilani and Shamim Asghar, who appeared for the Union, did not state that any of the other 7 persons was an officer of the Union or that their case was not covered by the re-organization scheme dated 22nd March 1970. Mr. Ali Amjad, the learned Advocate for the Union, contended that the burden lay on the Management to prove that they acted bona fide. There is not much force in this contention. The Management, on the evidence led by it, did make out a case for retrenchment. The burden of proof lies on the person who would lose if no evidence was led. It was for the Union to establish or at least to make out a prima facie case that the Management acted mala fide in termina--ting the services of the other 7 persons. None of the 7 persons appeared before the Court to state that the Management acted mala fide in terminating their services. The case of the said 7 persons is not covered by the provisions of section 47 of the Ordinance. In this connection, reference may be made to the case of Pakistan Petroleum Workers' Federation Karachi (PLD 1961 SC 479). In that case their Lordships of the Supreme Court of Pakistan held that certain Motor Drivers, who were discharged as a result of bona fide re-organization during the pendency of an industrial dispute their discharge was not affected by section 331 of the Industrial Disputes Act, 1947, which is almost similar, to the provisions of section 47 of the Ordinance. In the present case also these workmen cannot be said to have been discharged for misconduct connected with the industrial dispute, which was the subject-matter of negotiations before the Conciliator.
77. For the reasons given above, I would dismiss Appeal No. KAR-371 of 1971.
78. According to Masood Hasan Jilani, the total number of persons who had been dismissed from service comes to 167, including 8 persons who are mentioned in Schedule I to the application. The witness had filed a list of the persons, who, according to him, were locked-out. It is Exh. A. W. 3/2. On the other hand, according to Mohammad Abdul Jalil Assistant Managing Director of the Company the number of workmen, who lost their jobs, comes to 138. He produced Exh. R. W. 6/14, which contains the list of the workmen who lost their jobs. This, of course, does not include the names of persons, who were discharged as a result of re-organization. There is thus a difference between the version of Muhammad Abdul Jalil and Masood Hasan Jilani, According to the former only 138 workmen lost their jobs, while according to the latter 159 workmen lost their jobs. Only one question seems to have been put in cross-examination to Mohammad Abdul Jaleel in respect of Exh. R. W. 6/14. The answer runs as under :- "I do not think any charge-sheet was issued against any one of the workmen mentioned in Exh. R.
W. 6/14."
79. I would, however, accept the list of persons, who were dismissed from service, given by Masood Hasan Jilani, as he has not been cross-examined in respect of the list given by him. If the list given by Masood Hasan Jilani contains names of workmen, who had been in the service of the Company, but have not been dismissed, the Company will not be prejudiced. I will, therefore, proceed on the assumption that 159 workmen were dismissed from service, besides 9 workmen, whose services had been terminated on account of reorganization, as mentioned in Schedule I. To the application.
The admitted position is that no charge-sheet was issued against 138 workmen, who are mentioned in Exh. R. W. 6/14, According to Mohammad Abdul Jaleel, some workmen had, in response to the charge-sheets, submitted their explanations, but it seems that no regular enquiry was held against them also. Their explanations were found to be unsatisfactory and they were dismissed from service.
80. It is now well-settled principle of law that no one can be condemned without being heard.
Standing Orders also prescribe procedure for enquiry against a person, who is changed fore any misconduct. It is not the case of the Company that any enquiry, much less a regular enquiry, was held against the 15 workmen, who are mentioned in the list given by the Genera Secretary of the Union. There being violation of the principles of -natural justice and total disregard of the Standing Orders, the termination of services of 159 persons is bad in law: They are entitled to re-instatement.
81. The next question is as to whether these workmen are entitled to back benefits their re- instatement. The order of dismissal against these 159 workmen is being set aside on the ground not that these workmen are not guilty of any misconduct, but that the employer has failed to observe the principles of natural justice and the provisions of the Standing Orders in regard to enquiry. In that view of the back benefits that the workmen may be entitled to get will depend upon the result of the enquiry by the Company to be not guilty will be entitled to full back benefits. In this connection, it would be useful to reproduce a certain passage from the judgment of the Supreme Court of Pakistan an Glaxo Laboratories (Pakistan) Ltd. (1962 PLC 362). It runs as under :- "The rights of a workman are, by no means, improved by -'misconduct" of which he may be guilty and for which he may be liable to be dismissed by the Company after due enquiry. If a direction is given for re-instatement of such a workman on account of want of due enquiry preceding his dismissal, it does not destroy the right of the Company after re-instatement, to proceed against him, in accordance with the mode permitted by law."
82. It would be unfair to penalize the Company to pay back benefits without giving it an opportunity to hold an enquiry against the workmen, who, according to it, bad com--mitted misconduct. The Union, however, must be compensated for coming to the Court for redress on behalf of these workmen. But for the efforts of the Union, the workmen could not have been re-instated and got an opportunity to be heard against the charges that may be levelled against them by the Company. I would award costs of Rs. 3;000.00 (Rupees three thousand only) to the Union. This is to be paid within to weeks.
83. Of the 159 workmen, who have been dismissed without proper enquiry, a distinction must be made between those workmen against whom the Company can legitimately hold an enquiry and against others, who, according to my finding, cannot be held to be guilty of misconduct.
Mohammad Abdul Jaleel. Assistant Managing Director of the Company, has produced a list, Exh. R.
W. 6/14. According to this list 101 workmen were dismissed from service because they were absent from duty for more than 14 days, twenty-four workman were dismissed because they took part in an illegal strike and were also absent from duty for more than 10 days and 13 workmen were dismissed from service on the ground that they took part in an illegal strike. It will be futile to permit the Company to hold an enquiry against 13 workmen mentioned in Exh. R. W. 6/14, who had been dismissed because they took part in an illegal strike. In view of my finding that there was no strike and, therefore, the question of illegal strike does not arise. At this stage, it would be necessary to clarify as to whether the Union has claimed any relief in respect of all these 13 workmen. The Union in its application under section 34 of the Ordinance has asked for relief in respect of only 38 workmen mentioned in Schedules I and II to the application. The list Exh. A. W. 3/2, produced by Masood Hasan Jilani, General Secretary of the Union, stating the number of workmen, who have been dismissed from service comes to 159 workmen. This list, of course, does not include the names of those 9 workmen, who are mentioned in Schedule I to the application. The Union would, therefore, be entitled, with all the judicial discretion that. I have given in its favour, to the relief in respect of only 159 workmen, whose names are given Exh. A. W. 3/2. I have checked the names of 13 given in Exh. R. W. 6/14, produced by Mohammad Jaleel, Assistant Managing Director, with that of Exh. A. W. Produced by the General Secretary of the Union, I find the 13 workmen, who have been dismissed from because they took part in an illegal strike, only workmen appear in Exh. A. W. 3/2. It appears to me shat Union does not claim any relief in respect of 3 workmen. The workmen whose names appear in Exh. A. W 3/2. Are following : --
(1) Ayub Khan Jamadar.
(2) Mohammad SaburAttendant.
(3) Khalid Alvi Fitter.
(4) Shamsul Haq Fitter.
(5) Mohammad AminHelper.
(6) Ahmadullah KhanJPO.
(7) Mohammad YousufJPO.
(8) Ehsanul Haq Helper.
(9) Nisar Mehdi Ali Fitter, and
(10) Akhtar Baig Helper.
84. The names of (1) Mohammad Jameel, J. P. Siraj-ul Muneer, Assistant Store Keeper, and (3)
Abdul Fitter, do not appear in the list Exh. A. W. 3/2. The therefore, is not entitled to any relief in respect of these workmen, who are not mentioned in Exh. A. W. 3/2.
85. There are workmen, who have been charge-sheeted by the Company for an illegal strike and for being absent from duty for more than 10 days. The Company cannot be permitted charge- sheet these workmen for an illegal strike. It can, however, hold an enquiry against them for being absent from duty for more than 10 days.
86. In the result, the award of tae learned Chairman of the Labour Court is maintained in respect of S. I. Raza and MasoodHasan Jilani and is modified to this extent that 159 work--men, mentioned in Exh. A. W. 3/2, would be re-instated forthwith, but of these 159 workmen, only 11 workman, namely, (1)
Shamim Asghar, (2) Ayub Khan, (3) Mohammad Sabur, (4) Khalid Alvi, (5) Shmsul Haq, (6)
Mohammad Amin, (7) Ahmadullah Khan, (8) Mohammad Yousuf, (9) Ehsanul Haq, (10) Nisar Mehdi Ali, end (11) Akhtar Baig, would be entitled to full benefits on their re-instatement, as the Company is not hold an enquiry against them. So far as the rest are concerned, the back benefits and other emoluments depend upon the result of the enquiry that the Management hold against them. If the workmen are found to be not they would be entitled to full back benefits.
87. If the Company does not start enquiry against the workmen mentioned in Exh. A. W. 3/2, who had been dismissed by it; within three weeks, the workmen will be entitled to full back benefits and no further 3 enquiry can be held against them. The Company pay Rs. 3,000.00 (Rupees thousand only) as costs, as already observed, to the Union within to weeks.
88. For the reasons that I have already given, Appeal No. KAR-371 of 1971, is dismissed.