This is reference made by the Assistant Director Labour, under section 46-A Industrial Relations Ordinance, 1969 for seeking declaration to the effect that the management of Shaheen Airport Services, have locked-out 18 workers, without following the labour law.
2. In the reference made by the Assistant Director, after referring through the comments of the Shaheen Airport Service's management, has given the opinion that the refusal to allow them on duty, without assigning any reason is illegal lock-out.
3. That the statements which have been recorded by the Assistant Director, are of five workers, of whom three are the office-bearers of the C.B.A. Union.
4. Court had heard Mr. Samiullah on behalf of the Shaheen Airport Services, who has challenged the maintainability of the reference, that it does not conform to the judicial requirements of section 46-A. Mr. Samiullah has also further argued this aspect that simple termination is to be distinguished from the definition of lock-out. In other words there is complete closure of the place of employment with compulsion.
5. He has also referred to other important aspects, as in what cases section 46-A can be invoked.
By reference to sub-clause (4) of section 46-A he has emphasised, that clause (4) speaks of the concept of factory, when the Shaheen Airport Services is not a factory, Secondly he has contended that section 46 of the I.R.O. Applies only in those cases when the lock-out is in persuance of Industrial Dispute.
6. Section 46, I.R.O., specks of the illegality of the lock-out when it is declared, commenced or continued without giving to the other party, to the dispute in the prescribed manner a notice of lock-out and if it is in consequence of Industrial Dispute or it is continued in contravention of an order made under sections 32 and 33. Section 45 of subsection (3) of section 46-A or it is continued during the period in which settlement or award is in operation in respect of any of the matters covered by settlement of award.
7. Section 46-A, is by very nature an procedural provision, where clause (2) is to be read with clause (1), further following other clauses regarding limitation and as to effect of the contravention of the order of the Labour Court
8. Clause (2) reads that after the Assistant Director, has made the enquiries in the manner as he has deemed fit, when makes report to the Labour Court , shall intimate the employer by notice and the C.B.A., to carry the dispute for their appearance before the Labour Court
9. In both the clauses of clause (2) and clause (4), the word 'Factory' and the word' notice' what it intends to. Whether factory as understood by Mr. Samiullah be understood in the sense that procedural provision of section 46-A applies to the factories or it is simply a procedure to be read in the legal sense that if the order is disobeyed of the Labour Court, the factory be attached. If the contention of Mr. Samiullah is taken in the absolute sense that, it applies to the factory and the procedure of the attachment will also be applicable in respect of the factory of the employer, the obvious object is that the same factory which will be attached will be the factory of the employer to carry the sense of what Mr. Samiullah refers to that this procedure of lock-out is in the case factory alone.
10: The next contention will be whether after completing the enquiry the notice be understood to the employer in the sense that notice, to the employer means to appear before the Labour Court after the completion of enquiry by the Assistant Director. What is the effect of the contention of Mr. Samiullah who states that, the Assistant Director has submitted, report on 6-12-1986 and the reply of the employer to his query is 13-11-1986. In other words, was this requirement fully complied-with in terms of clause (2). The dates, therefore, are relevant. The word, "deem fit" in clause (1), obviously suppose that the procedure, the Assistant Director will follow with be such, which in his own judgment appeals to reason. Assistant Director has brought, on the record of this Court statements of the five workers and the comments of the Airport Services.
11. The Court has perused the statements. The grievance is that the management wants to do- away with the union and he being the president has rightly behaved with the management with exemplary service.
12. The management's version is that the termination was simple termination according to law and entry passes which were withdrawn were in persuance of that action. They have denied that it was lock-out under compulsion as represented by the Union office bearers. The statement of other workers is also on the same lines, that the lawful union activities be given-up.
13. Assistant Director is called. He has not argued the reference, in spite of the opportunity given to him within time limitation by sub---clause (2) of section 46-A where it is expressly provided that in the case of lock-out, the Labour Court will proceed to give the award within 10 days. The obvious object is that if it is prejudicial to the national interest, the award be announced as early as possible within the time limitation. Mr. Samiullah had argued that the word may is used. There is discretion given to the Court. The Court is of the view that even, if the word May is used, the Court is to consider whether the delay will not be in the national interest.
CONCLUSION Section 46-A, I.R.O., speaks of lock-out only in the case of factory, as obvious, from the language of sub-clause (4) of section 46-A. Shaheen Airport Services is an establishment, of commercial nature and not a factory in the absolute sense.
Secondly, the statement recorded of the workers, nowhere. Speaks, of industrial dispute. It refers to the Union activities. Union activities cannot be understood as an industrial dispute within express meaning of the proviso of section 46-A, or the other provisions following as such section 47-A.
Thirdly, the requirement of the procedure of intimating the party, of the dispute to be taken to the Labour Court on the day fixed has not been followed. Whether this proviso is mandatory as contended by Mr. Samiullah. Whether this is mandatory provision or directory. The distinction between mandatory and directory provisions is, that, if entails the penalty, it is mandatory, otherwise it is directory. If the Court finds that it is directory and the parties given the date by the Court, instead of intimation by the Director, the reference, even on point of law, has been considered to be not maintainable, for, it is not a factory and there is no industrial dispute. It is a case of simple termination, challengeable before the Labour Court under section 25-A, I.R.O., 1969 to review the provision of section 47, I.R.O. Or other provisions if applicable in the circumstances of the matter, to grant relief to both the parties what is just and proper.
M.Y.H./915/Lb.
Reference of disposed.