This is an appeal against an award of the Second Sind Labour Court, Karachi, and dated March 6, 1972, whereby the learned Court came to the conclusion that the workers had gone on strike in consequence of lock-out and therefore, the alleged strike was not illegal. In the result, the learned Court dismissed the application of the Management under section 34 of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance). The facts giving rise to the appeal briefly put are these.
2. On 1st January 1970, Messrs H. B. Tobacco Company Limited (hereinafter called the appellants), and H. B. Company Limited Employees' Union (hereinafter called the respondents), signed a Memorandum of Settlement, which was to be operative for two years. One of the terms of the settlement was that the respondents would not raise any monetary demand during the period of operation of the settlement. The respondents, however, on 4th May 1970, served a notice of demands under section 26 of the Ordinance. The Demand Notice was followed by a Strike Notice on 14th May 1970. On 16th May 1970, the Conciliation Officer, called a joint meeting for 20th May 1970.
The meeting was held but without any fruitful result. On the same date, i.e. on 20th May 1970, at about 11-15 p.m. 16 workers of 'C' Shift, according to the appellants, went on strike. On 21st May 1970, the workers of 'A' and 'B' Shifts also went on strike.
3. The appellants made an application under section- 34 of the Ordinance on 25th May 1970 for a declaration that the strike was illegal. The appellants also made an application under section 45 of the Ordinance for prohibition of the illegal strike. The learned Labour Court, after hearing tit arguments of both the parties on the application under section 45 of the Ordinance, issued an order directing the respondent-Union to call off the strike immediately.
4. The respondents filed a writ petition in the High Court of Sind & Baluchistan (Petition No. 347 of 1970). The respondents made an application under Order XXXIX, rules 1 and 2, C. P. C read with section 151, C. P. C. praying for order to stay the operation of the order passed by the learned Labour Court under section 45 of the Ordinance. Their Lordships of the High Court on 3rd July 1970, refused to grant injunction as prayed for by the respondents. They however, observed that during the pendency of the application, staking workers were not to be removed from service. The main writ petition was' also withdrawn on 13th October 1971, by the respondents.
5. The case of the appellants was that the ~ workers of 'C' Shift (16 workers) struck work at about 11- 15 P.M. on 20th May 1970. They had also, according to the appellants, gave in writing that they had struck work. This is Exh. A. W 115, which was written by Nazir Zafar. Time-Keeper, at the dictation of the workers. On 21st May 1970, the workers of 'A' and 'B' Shifts also went on strike. On the other hand, the case of the respondents was that the Director of the Company had called the workers of 'C'
Shift at the gate and asked them to deposit their Identity Cards and sign a document. The workers were thereafter locked-out, as they had served the strike-notice.
6. The learned Court on the pleadings between the parties framed two issues, namely, as to whether the application was maintainable and whether the respondent-Union had been locked- out or had gone on an illegal strike during the pendency of the conciliation proceedings. The learned Court came to the conclusion that the application was maintainable and that the workers had been locked-out.
7. Mr. Ali Ahmad Fazeel, the learned Advocate for the appellants raised two-fold contentions before me, namely, (1) that Exh. A. W. 115 clearly makes out a case of illegal strike and (2) that at any rate mere refusal to let the workers of 'C' Shift to continue their work would not amount to look-out.
8. In all strikes and lock-outs there is one common factor, namely, that the workers are not performing their duties. Whether the workers are not attending to their work because they had gone on strike or they had been locked-out is a question of fact. In the present case, the learned Court for good reasons came to the conclusion that it was a case of lock-out. Mr. Fazeel the learned Advocate for the appellants, pointed out the discrepancies in the statements of the witnesses of the respondent-Union. Some of the witnesses stated that they had put their signatures on the blank paper, while others said that they signed against their names. The best that can be said on behalf of the appellants is that Exh. A. W. 115 was signed by 16 workmen of 'C' Shift. The main question would be as to whether these 16 workmen knew the contents of Exh. A. W.
115. According to the workmen, they were called upon to hand over their Identity Cards and were required to sign a paper, which they signed. On the other band, according to the appellants, C3hulam Sarwar and Nabi Khan workers asked Nazir Zafar, Time-Keeper if the appellants to write down Exh. A. W. 115.
Nazir Zafar wrote the said Exh. A. VV'. 115.
9. The main argument of the learned Advocate for the appellants in support of his contention that it was a case of an illegal strike is based on Exh. A. W. 1 /5. The learned Advocate contended that the contents of Exh. A. W. 1/5, which is signed by the 16 workers of 'C' Shift, clearly proves that they went on strike. One thing cannot be doubted that the 16 workers of 'C' Shift have signed Exh. A. W. 1/5. The question, however, is as to whether they knew the contents thereof. The material content of Exh. A.
W. 115 reads as under t- "We the following workmen of H. B. Tobacco Company have on 20-5-1970 at 11-15 p.m. stopped work. In other words, we have gone on strike."
10. No explanation, whatsoever, has been given by the appellants as to why these 16 workers, if they went on strike at all, would on their own ask the Time-Keeper to write it out, far proof against them that they had gone on an illegal strike. The workers knew that during the conciliation proceeding and before the expiry of 21 days, if they went on strike, it would be illegal. It is beyond my comprehension to believe that the workers on their own would ask the Time-Keeper to write a document, which may be used against them later on. I have come to the conclusion that the workers did not know the contents of Exh. A. W. 1/5. They were called upon to sign a paper when they were asked to submit their Identity Cards and they signed the same.
11. The learned Advocate for the appellants also laid great stress on the fact that admittedly, there are 35 workmen in 'C' Shift. It is only 16 of the persons who, according to the Union, were- locked- out. 1n other words, the contention was that if the Management wanted to lock-out, it would have locked---out all the 35 workmen and not only 16 of them. There is no force in this contention. Nabi Khan, the President of the Union, stated in his cross-examination as under:- "I was on duty in the 'C' Shift on 20-5-70. I started work. Theme were 15 to 16 workers in the entire factory in the 'C' Shift on that date. Those` were the persons who signed on Exh. A. W. 1/5."
12. It is clear that though there were 35 workers in the 'C' Shift, but only 16 were present at 11-15 p.m. on 30th May 1970. At any rate, even if more persons were present, besides these 16 persons, the possibility of the Management having locked---out these 16 persons only cannot be ruled out. They may have been more troublesome.
13. The learned Advocate also relied on certain circum--stances in support of his contention that the workers had -gone on strike. He submitted, in the first place that had the workers not gone on strike and had been locked-out, they would have approached the Court for withdrawing the lock- out. It is the Management, which made the application on 25th May 1970 under section 34 of the Ordinance. In the second plate it was submitted that had the workers been locked-out, they would have on the Court ordering them to withdraw strike, would have resumed work. These circumstances no doubt are quite weighty ones. On the other hand, the suggestion cannot be ruled out that the Management did not realise the consequences of having locked-out 16 persons on the night of 20th May 1970. The Management perhaps did not realise that the whole factory will go on strike as a result of 16 persons having been locked-out. When the Management realised that the factory was closed, they bad no option but to approach the Court and make an application under section 45 of the Ordinance. In these circumstances, I have no reason to take a different view than what has been taken by the learned Court that some of the workmen were locked-out on 20th May 1970.
14. The second point that requires consideration is as contended by Mr. Ali Ahmad Fazeel, the learned. Advocate for the appellants, as to whether mere refusal to let the workers of 'C' Shift to continue their work will amount to lock-out. It was contended that at best the Director of the Company after taking their Identity Cards did not permit them to work. This f would not be a lock- out as defined under section 2 of the Ordinance. The learned Advocate relied on the case of o, S. Muhammad Dire & Sons Ltd. (1 i in support of his contention F that mere refusal to continue to employ certain persons as G workmen Is not sufficient to hold that there was a lock-out. It was observed in that case by Sardar Muhammad lqbal, J. that B it was necessary to prove that the refusal occurred in connection A with an industrial dispute or "is intended for the purpose of compelling persons employed to accept certain terms or conditions of, or affecting, employment"
There is not much force in this contention. Nabi Khan stated in his affidavit as under:- "Mr. Pervez ordered us to deposit our Identity Cards and asked the Time-Keeper to get our signatures on a plain sheet of paper. When I asked the reasons for this strange order, Mr. Pervez told us that he is locking-out the factory because we had served a Strike Notice."
15. There is no cross-examination on this point by the Management. I would hold, to these circumstances, that the workers were locked out because they had given a Strike Notice.
16. There is only one important point that remains for consideration. The question is as to whether the lock-out, which commenced on 20th May 1970, still continues. I have come to the conclusion, for the reasons to be presently given, that the lock-out came to an end on 29th May 1970, when the learned Labour Court Issued prohibitory order under section 45 of the Ordinance directing the respondent-Union to call off the strike with Immediate effect.
17. Section 46(1) (c) of the Ordinance reads as under:- "A strike or lock-out shall be illegal if-
(c) it is continued in contravention of an order made under section 32, section 33, or section 45."
18. Sub-clause (PLD 1968 Lab. 1012) of section 45 of the Ordinance reads as under:-.
"(1) When a strike or lock-out in pursuance of an industrial dispute has already commenced and is In existence at the time when, in respect of such industrial dispute there is made to, or is pending before, a Labour Court, an application under section 34, the Labour Court may, by an order in writing prohibit continuance of the strike or lock-out."
19. In this connection, it may also be mentioned that their Lordships of the High Court had refused to grant any stay order regarding the order passed by the learned Labour Court under section 45 of the Ordinance. In that view of the matter, it was incumbent upon the workers to obey the order of the Labour Curt and withdraw the strike. As the workers continued the strike in contravention of the order passed under section 45 of the Ordinance on 29th May 1970, I would hold that the strike became legal from that date. Mr. Ali Amjad, the learned. Advocate for the respondents, was not able to give any satisfactory answer when hen confronted with this position in law.
20. In the result, the award of the learned Labour Court is modified to this extent that the workers are on illegal strike from 29th May 1970.