I propose to dispose of these appeals by a common order, as the question of fact and law involved is the same. The learned Chairman of the 1st West Pakistan Industrial Court, Karachi, had also disposed of the applications of the Appellants under section 31 of the Industrial Disputes Ordinance, 1959 (herein--after called the repeal Ordinance), by one order. The impugned order was passed on October 18, 1968, on an application under section 31 of the repealed Ordinance. The facts giving rise to these appeals are these.
2. The appellants were all Members of Messrs Brooke Bond Workers' Union (Registered). The Union had raised Industrial Dispute No. 55/67, against the respondent-Company in respect of certain demands, which need not be mentioned here. They submitted applications under section 31 of the repeated Ordinance, on 30th September 1967. The allegation was that the Management had become vindictive and started victimizing, the workers due to the industrial dispute and for their legitimate Union activities. The Management stopped 8 workers on 25th September 1967, from "attending to their usual duties": that the remaining workers "became sensitive and apprehensive" and made protest to the Management "over the humiliation and victimization" of the 8 workers: that, therefore, the Management illegally effected lock-out of the appellants with effect from 25th September 1967. The appellants in conclusion submitted that the Management having contravened the provisions of section 30.of the repealed Ordinance during the pendency of Industrial Dispute No. 55/67, the appellant were entitled to their re-instatement with full back wages with effect from 25th September 1967,
3. The Management contested the applications of the appellants and stated that the appellants and the 8 workers were all temporary workmen, and were employed each year in the month of August/September and- discharged in the mouth of March/April next year. They were employed to raise the output of production to meet their additional demand of consumption of tea in winter season. It was urged that on 21st September 1967, the 8 workmen, referred to in the applications, started go-- slow tactics with the result that the normal production was reduced from 125 cases to 25 cases per day. The Management therefore, terminated the services of the said 8 workmen on 25th September 1967. It was further alleged that the appellants resorted to illegal strike on the morning of 26th September 1967, in sympathy with the discharged workers. The strike continued up to 3rd October 1967, when through the intervention of Mr. Moosa Khan, Conciliation Officer, the workers agreed to call off the strike and the Management agreed to take back the 8 workmen, who had been earlier discharged. The 8 workmen along with the appellants resumed their duties with effect from 4th October 1967. Thus it was submitted that the question of the re-instatement of the appellants did not arise, as they had already resumed duty and contended that as the appellants had resorted to illegal strike, they were not entitled to wages.
4. The learned Chairman of the Industrial Court posed two questions before himself, namely, (1) whether the appellants were entitled to claim one week's wages, and (2) whether the Industrial Court could grant them the relief claimed for in an application under section 31 of the repealed Ordinance. The learned Chairman on both the questions held against the appellants.
5. Mr: A. Majeed, the learned Representative for the appellants, contended that the learned Chairman having held that the applications were not maintainable under section 31 of the repealed Ordinance, he should not have gone into the question as to whether the appellants were locked-out on 26th September 1967, or not.
6.The impugned order passed on October 18, 1968, i.e. much after the West Pakistan Industrial Disputes Ordinance; 1968, (hereinafter called the Ordinance), came into force. The Ordinance was promulgated by the Governor of West Pakistan on the 8March 1968, which was approved by the Provincial Assembly of West Pakistan with amendments on 20th May 1968, under clause 3, of article 79 of the Constitution and assented to by the Governor of West Pakistan on 8th June 1968. Under section 46 of the Ordinance the Industrial Disputes Ordinance, 1959, was repealed in its Pakistan. It was application to the province of West Pakistan. It was, however, provided in the said section that applications made on the Court shall be continued as if they were made under the Ordinance of 1968. The section equivalent to section 31 of the repealed' Ordinance is section 38 of the Ordinance.
Section 30 of the repealed Ordinance is equivalent to section 37 of the Ordinance. It may be mentioned here that there are certain additional safeguards to the interest of the workmen than were provided in section 30 of the repealed Ordinance. These additional safeguards are, however, not important for the purposes of disposal of these appeals. Under section 37 of the Ordinance as under section 30 of the repealed Ordinance no employer could, during the pendency of an industrial dispute, alter to the prejudice of the workman, concerned in such dispute the conditions of service applicable to them immediately before the commencement of conciliation pro-- ceedings. The employer further could not discharge, dismiss or otherwise punish any such workman. He could do so only with the permission of the Conciliation Officer during the pendency of conciliation proceedings and with the permission of the Court during the pendency of proceedings before it. An ordinary workman, who was not an officer of the Trade Union, could be discharged, dismissed or otherwise punished. for misconduct not connected with the pending industrial dispute without the permission of the Court. An officer of the Trade Union could not be discharged or dismissed for the misconduct not connected with the dispute without the permission of the Court. Where an employer contravened the provisions of section 30 of the repealedth Ordinance during the pendency of proceedings before the Court, any workmen aggrieved by such contravention could make a complaint in writing to such Court. The Court on receipt of the complaint could dispose it of as if it were an industrial dispute.
7. The fundamental question for determination, in the first place, is as to whether the application under section 31 of the repealed Ordinance or the application under section 38 of the Ordinance, would be maintainable in the circumstances alleged therein. The learned Chairman of the Industrial Court has rightly held that the applications were not maintainable under section 31 of the repealed Ordinance. The short question would be, even if it was held -that the appellants were locked out, could the provisions of section 38 of the Ordinance be attracted. This would depend on the answer to the question whether the lock-out had, (1) in fact altered the conditions of service of the workmen to their prejudice, or (2) had the effect of discharge, dismissal or (3) amounted to punishment of the workmen.
8. Lock-out is defined under section 2(1) 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 persons employed by him, where such closing, suspension of refusal occurs in connection with an industrial dispute, or is intended for the purpose of compelling persons employed to accept certain terms or conditions of, or affecting employment.
9. It would appear from the aforesaid definition that lock--out did not mean discharge or dismissal of a workman from service. There is no severance of the relationship of master and servant in a lock-out. The relationship of employer and employee continues. The workman in a lock-out is pot permitted continue to perform his duties. The workman, therefore, cannot be said, in a lock-out to have been discharged or dismissed from service. Lock-out also does not amount to punishment, as it pre-supposes an offence or misconduct. The important question, however, is as to whether lock-out can mean an alteration in the terms and conditions of service of the workman to his prejudice. I am of the view that lock--out, as defined under the Oidinance, does not have the effect of altering the terms and conditions of service, of the work--man. By terms and conditions of service, we understand something definite. It may be said that a workman is entitled to his wages, that during the continuance of lock-out, he will not receive his daily or weekly wages and thus lock- out affects his terms and conditions to his prejudice. The argument may appear to be plausible, but would not stand the test of scrutiny. This would imply that lock-out simpliciter alters the terms and conditions of service of the workman. This is not so. Under section 28 (2) of the Ordinance, "a lock-out declared in consequ--ence of an illegal strike or a strike declared in consequence of an illegal lock-out shall not be deemed to be illegal." What is permissible in law cannot be said to have the effect of changing the terms and conditions of service of a workman. A lock-out is generally adopted as a secruity measure, and may in certain cases be used as a weapon corresponding to what the employees have in the shape of a strike. Lock-out by the employer, therefore, in order to be a term of service must directly alter the same. The possibility whether the workman may or may not get his pay would not depend upon, whether lock-out is legal or illegal. It cannot, therefore, be said that lock-out as defined and resorted to alter the terms and conditions of service of a workman. Moreover, if lock-out is illegal, remedy is provided under section 30 (2) of the Ordinance.
The employer can be punished for illegal lock-out- by imprisonment or with fine. The employees affected by a lock-out would be entitled to refer the matter as industrial dispute arising between themselves and employer for adjudication by adopting the proper procedure provided in the Ordinance. An application under section 38, of the Ordinance is also to be adjudicated upon as if it was an application under subsection (8) of section 6 of the Ordinance. In fact, the workmen will be better off by treating lock-out as an industrial dispute. They can jointly pursue the application through their Trade Union or through their Five Elected Representatives. On the other hand, they have to make separate applications for redress of their grievances under section 38, would be cheaper and more convenient.
10. The learned Chairman of the Industrial Court relied on the decision of the Supreme Court of India in the case of Lakshrni Deli Sugar Mills Limited v. Pt. Ram Sarup and others (1) in support of his finding that the application was not maintainable. I agree with the conclusion of the learned Judges of the Supreme Court of India.
11. Mr. Majeed did not urge anything as against the finding that application under section 31 of the repealed Ordinance was (1)AIR1957SC82 not maintainable. 14e, however, very streneously contended that the learned Chairman having found that the application was not maintainable, he should have dismissed the applications and not proceed to adjudicate on the question as to whether there was any '` Lock-out or not. There is substance in this contention. An application under section 31 of the repealed Ordinance was maintainable only when there was contravention of section 30 of the repealed Ordinance. The appellants had claimed wages for the period that they were alleged to have been locked-out. As an application, even if there was lock-out, is not maintainable under section 31 of the repealed Ordinance, the question of payment of wages for the period there was lock-out, does not arise. In this connection, it was submitted by Mr. Majeed that there is an industrial dispute pending between the parties in respect of wages on the ground that the appellants had been locked-out. It is submitted that the decision in this case might affect the merit of their demands in the industrial dispute, which has not yet been adjudicated. I would hold that it was not necessary to go into the question of lock-out in view of the finding that the application under section. 31 of the Ordinance was not maintain--able. The finding of the learned Chairman that there was no lock-out would not, therefore, be deemed to bind the parties in the pending industrial dispute. With these observations, I would dismiss the appeals.