AWARD FAZLI KHALIQ KHAN (CHAIRMAN):This order disposes of the application dated 11th of December 1968, tiled by the India Flour Mills Ltd., Karachi, in the following circumstances.
The Secretary of India Flour Mills Workers' Union (Regd.) served on the Management a notice of strike dated 7th of March 1967, in respect of certain demands which included demands of financial implications. The India Flour Mills is a non-public utility service. On the receipt of the strike notice, the Conciliation Officer of the area started concilia--tion proceedings which, however, ended in failure on 19th of April 1968. The Failure Certificate (Exh. P-1) was issued on the said date. On the strength of the Failure Certificate, the General Secretary of the India Flour Mills Workers' Union brought an Industrial Dispute No. 7 of 1968, under section 5(5) of the Industrial Disputes Ordinance, 1959, for the adjudication and determination of the demands. The application was resisted by. the respondent who raised a preliminary objection under section 11(2) of the West Pakistan Industrial Dispute: Ordinance, 1968, on the ground that the failure Certificate dated 19th of April 1968, was null and void and could not form the basis of the Industrial Dispute. Evidence was recorded on the preliminary objection which was, however, ultimately dismissed on 14th of November 1968. It was directed that the case be heard on merits.
On11 of December 1968, the respondent filed an application which is the subject-matter of this Order. It was submitted that the industrial dispute has become infructuous in view of the fact that the Mills has been closed with effect from 27th of June 1968, as mentioned in the affidavit accompanying the application. It would be better to reproduce the affidavit in toto:th "I, Wahid F. Tawalla, Muslim adult, residing at Clifton, Karachi, do, hereby, solemnly affirm and declare:--
(1) That, I am son of the Managing Director of the respondent-Mills (hereinafter referred to as 'the Mills'). I ant also the Miller and Mills' Manager of the Mills; and, thus, am fully conversant with the entire affairs of the Mills.
(2) That, the Mills is under attachment by the Food Department of the Government of West Pakistan for certain dues amounting to several lacs of rupees. It was scheduled to be auctioned on 19th November 1968. Though the auction was riot affected on that day, it may be auctioned on any day deemed expedient by the Food Department.
(3) That, the present Management of the Mills has suffered heavy losses during last few years, end, as such, its financial position is very weak.
(4) That, the Mills is completely closed with affect from 27 June 1968, and there is no prospect of resumption of operation of the Mills by the present Management." it is clear from the affidavit that the respondent-Mills was under the order of attachment at the instance of the hood Department of the Government of West Pakistan and was scheduled to be auctioned on 19th of November 1968, for certain unpaid dues. It is also clear from the same affidavit that due to the financial reason, the respondent effected the closure of the Mills with effect from 27th of June 1968, i.e. about 7 1/2 months back.
The circumstances which lead to the attachment of the Mills by the Government, are mentioned in the counter-affidavit filed by the Workers' Union on 30th of December 1968. It is submitted in paras.
Nos. 3 to 8 that:-- "3. That the respondent is a limited Company and was founded in 1936. It was then known as `Goa Mills'.
4. That the three Mills - formed into the firm called "'I he Karachi Flour Mills' Union". The three Mills included in it are (1) The Karachi Steam Roller Flour Mills Co. . Ltd.: (2) The Sind Flour Mills Company Limited and (3) The India Flour Mills, Wheat was supplied to these Mills by the Central Government up to July 1962 for milling it. The respondent had to clean it and then demp it for milling purposes.
This wheat after milling process was carried and supplied to ration depots. ' The milling charges recoverable were Rs. 124.60 per 100 maunds. The was reduced on 25th May 1952 when the price of wheat was raised and the milling charge-; were temporarily reduced by the Government.
5. That after Promulgation of Constitution, i.e. from 1st July 1962 the Mills came under the Government of West Pakistan. As the respondent did not pay dues up to 26th October 1966, these dues mounted to Rs. 63,76, 588.44 which the Government of West Pakistan ordered to recover as "Land Revenue" and therefore, the Government forwarded it to the Revenue Authority of Karachi namely Deputy Collector, Food of Karachi Region but in the meantime the High Court of West Pakistan, Karachi Bench, Karachi was moved in the matter by the Mills' Union. '
6. That the High Court of West Pakistan, Karachi was pleased on the 15th of December 1966 to issue a conditional order of injunction against the bank guarantee to be furnished by the Karachi Flour Mills' Union in the sum of Rs. 25 lacs within six weeks from that date. The Mills' Union thereafter sought extensions one after the other but the third extension for time was rejected on the 24th April 1967.
7. That the respondents did not disclose the facts of extension to the Letters Patent Bench but however, they obtained a stay for process of recovery conditionally.
8. That the Letters Patent Appeal however, failed on Rd May 1968 and the appeal therefrom in the Supreme Court also failed."
It is clear from the averments of the above affidavit that the respondent's Mills is under the order of attachment for unpaid dues amounting to Rs. 64 lacs payable to the Government. It was admitted in the remaining para. of the counter-affidavit that the Mills have been closed with effect from 27thth of June 1968, but it was submitted that the closure was effected "mala fide". In this connection para. No. 14 of the counter-affidavit will advantage.
"14. That the Mills who can courageously evade payment of Government dues can very well adopt the closure as a hoax and a subterfuse in order to victimize the workmen and their dues as to bring criminal force on them to forego their claims and to give up their legitimate demands currently under adjudication before this Industrial Court and the other Court. This closure so-called is a clear device and is an act of unfair practice. It is illegal and mala fide and is with a view to set up the legal dues of the workmen who have in majority large number of years of service and are entitled to service benefits as per the settlements and awards currently in force."
The respondent-Mills have denied the above averments by their counter-affidavit dated 1st of February 1960, on record. It was submitted in para. No. 2 that:- "2. Statements made in paragraphs 10 to 13 of the affidavit are wholly false and denied. The encumbrances on the Mills are existing much prior to the said claim trade by the West Pakistan Government against the Mills. Again the Mills are specifically encumbered with the Central Rank of India Ltd., and the Muslim Commercial Bank Ltd., Karachi. Both the Banks have filed suits in the High Court. In the Central Bank suit, the Court granted our prayer for payment of the amount claimed in instalments. The applicant-Company has not been able to pay even the instalments. It is submitted that the Mills have been suffering losses wholly on account of the inequitable spilling charg,~s fixed by the Government. It is wholly false that the Mills have done any acts whereby they have allegedly acquired unsuitable market reputation. It is alleged that the milling capacity is more than 9000 maunds a day, but the fact is that the Mills can do only such amount of milling as the Government would permit them and subject to market condition."
The parties have not produced any other evidence but have relied on the affidavits-on-record. It is undisputed that the respondent had effected the closure of the Mill with effect from 27th of June 1958, i.e. about 7J months back. It is also undisputed that the Mill is under the attachment of the Food Department of the Government of West Pakistan, was scheduled to be auctioned on 19th of February 1968, for the unpaid dues of Rs. 64 lad to the Government. The auction had been postponed for the time being. The question which remains for determination is whether the closure was effected "bona fide" or it was effected to deprive the workers of their legitimate rights. I have carefully perused the affidavits and have come to the conclusion that the respondent was forced to close the Mill with effect from 27th of June 1968, due to financial stringency. The closure was not effected to deprive the workers of their legitimate dues or to deprive them of benefits permissible to them under the law.
Since the Mills have been indefinitely closed with effect from 27th of June 1968, and since the Mills is under the attachment of the Food Department of the Government of West Pakistan which may be auctioned at any time the industrial dispute brought by the present petitioners has become infructuous. The dispute is hereby dismissed. In case the Mills restart functioning, the petitioner can bring another industrial dispute for the vindication of their rights.