1. SHAH NAWAZ KHAN (CHAIRMAN): The Karachi Hotel Workers' Union, 29-K. M. C. Building, Lea Market, Karachi No. 2, has moved this Court with an application purporting to be under section 3 4 of the Industrial Relations Ordinance, 1969 complaining against the conduct and attitude of the Management of Hotel Metropole, Club Road, Karachi, for contemplating to close down the Catering Sections of the Hotel for an allegedly ulterior motive to coerce, and compel the supporters of the Staff Union who were to prepare for a secret ballot with the rival Union named and styled Hotel Workers' Union, Club Road, Karachi (respondent No. 2). It has been prayed in that application that the Management be restrained to terminate the services of the workers. This application was filed in Court yesterday i.e., on 27-2-1970.
2. Another application. i.e. the present application was simultaneously filed by the General Secretary -of the Karachi Hotel Workers' Union with a prayer that an ad interim injunction be issued to the Management of the respondent-hotel, not to" terminate the services of the workmen.
3. Notice was issued to the opposite-party for the hearing of that application for today. The Managing Director of the respondent-hotel along with Mr. Mahmood A. Ghani, Representa--tive of the respondent-hotel appeared. On the side of the applicant, Mr. Riaz Bukhari, General Secretary of the applicant-- Union with Mr. M. A. Majeed, Representative appeared. The respondent filed Reply Statement supported by an attested affidavit in which the allegations of the applicant-Union have been controverter. The competency of the applicant-Union, to have this Court through the present application as also throw the application purporting to be under section 34 of the Industrial Relations Ordinance, 1969, referred to above, has been challenged. It is further averred, that necessity for terminating the services of the workmen of those Sections, which are desired to be closed by the respondent, has arisen because the respondent is closing down for good that part of the Industry and the affected workmen have already been issued one month's clear notice each as required under the Standing Orders Ordinance. Further that they are being also paid all their legal dues to which they may be entitled under the Law, for the time being in force. It is further stated that this action was being taken, not with a view to victimize any body but because the respondent is obliged to close do a portion of their business.
4. Arguments were addressed by the learned Representatives of the parties learned Representative of the respondent as also the Managing Director of the respondent-hotel tried to show through, their record, which was placed for the perusal of the Court that the business which the respondent had decided to close down was uneconomical and that the Management had already suffered heavy losses on that account. Further that the Catering Sections of the Hotel have already been closed down and no further orders are being received with effect from today for future booking.
5. The Management have also tried to show that out of the affected workmen, members of both the Unions are involved and that no discrimination has been made for giving effect to the contemplated action.
6. The applicant-Union has expressed apprehensions that for the time being, the respondent may show to have closed down the Catering Business, but that actually it would be restarted with new staff after the Management is able to get rid of the present incumbents and that this device is being resorted to by the-- Management with a view to take revenge from the workers of the Staff Union who had decided to join the Karachi Hotel Workers' Union, contrary to the expectations of the Management.
7. The application of the Union under section 34 of the Industrial Relations Ordinance, 1969 is yet to be considered to determine as to whether the action of the Management is based on good intentions 'or that the respondent was actuated by any malice. Further as to whether the Karachi Hotel Workers' Union i.e., the applicant-Union, which is admittedly not the collective Bargaining Agent in the Establishment is competent to raise a dispute or to submit an application under section 34 of the -Industrial Relations Ordinance 1969 on behalf of the Workmen of the respondent-hotel. There are 2 Registered Trade Unions of the Workmen of the respondent-hotel, in which, as indicated above, it is yet to be determined through a referendum as to which one of these 2- Unions, is the collective Bargaining Agent, under section 22 of the Ordinance.
8. For the present, we are required to decide as to whether an ad interim injunction staying the respondent from terminating the services of the affected workmen or from closing the business should be issued or not. The Management had served one month's notice on each one of the affected workers and the period of that notice has since expired. According to the learned Representative of the respondent, the Catering Sections of the respondent Hotel has already ceased functioning with effect from yesterday and the, part of the business is being closed for good from today and that no new order has been accepted for future booking.In these circumstances, if the respondent is stayed from proceeding further with his designs, it would mean that he is being obliged to carry on the business in respect of which he has already taken a decision. The respondent might face further complica--tions if after some time the ad interim injunction is vacate because he will then have to undergo the whole process again, I.e., in the form of giving one month's notice to the workers etc. etc. In case the contemplated action of the Management is later held to be mala fide then the workmen have the remedy to enforce their rights not only for their re-instatements but also for continuity of service with past benefits. It follows that the balance of convenience, which matters very which in such like proceedings, is more in favour of the respondent. It is obvious that the employer cannot be forced to carry on the business or not to close the industry. All that we have to ultimately consider is as to whether the closure is mala fide or not.
9. In these circumstances, I do not think that the ends of justice will be better served if the request of the applicant- Union is granted. In fact it should be, the other way round.
10. The result is that I am constrained not to issue an ad interim injunction as prayed for in this application.
11. Announced in open Court.