This is an appeal against an award dated 21st February 1969. The award was given by the learned Chairman of the Second West Pakistan Industrial Court, Karachi. The respondents had raised 12Aemands under section 5(5) of the Industrial Disputes Ordinance, 1959. At the time of the hearing the General Secretary of the Union, the respondent, gave up the other demands, except Demand No. 3, which reads as under: ---That the workmen be given full wages and privileges of the period of the lock-out that is from 20th June 1966 to 23rd August 1966, and their privileges and entitlements be paid to them in respect of bonus, annual, casual and medical leave, The workmen who still remain locked-out be instated and paid their full benefits with retrospective effect. Their list is as per Attached `A'.---
2. The learned Chairman of the Industrial Court recorded the evidence of the parties and accepted their demand as to full wages and privileges from 20th June 1966 to 23rd August 1966, as the General Secretary of the Union had given up other part of the demand, reproduced above.
3. Mr. Shahani, the learned Representative for the Management, contended before me that the conclusion of the Industrial Court that the notice terminating the services of the workmen was given not because of shortage of yarn, but to avoid payment of Excise Duty, is not based on evidence and is also contrary to the provision of Standing Order 11 of the Industrial and Commercial Employment (Standing Orders), Ordinance, 1960.
4. In order to appreciate the contention of the learned Representative for the appellant, it would be useful to reproduce Standing Order 11(3) of the Standing Orders Ordinance. It reads as under:- "In cases where workmen are laid off for short period on account of failure of plant or a temporary curtailment of production, the period of unemployment shall be treated as compulsory leave either with or without pay, as the case may be. When, however, workmen have to be laid off for an indefinitely long period, their services may be terminated after giving them due notice or pay in lieu thereof."
5. Mr. Shahani submitted that the termination of the services of the workmen was in complete accord with Standing Order 11(3). The notice (Exh. R. W. 1/1), dated 16th May 1968, reads as under:-- ---All the workmen are hereby informed that due to non---availability of Cotton Yarn in the market, it is not possible to run the Weaving Section.
This Management is therefore, laying off the workmen of Weaving Section from 20th June 1966, in accordance with Order 11(3) of the Industrial and Commercial(Standing Orders) Ordinance, 1960, for an indefinite period and request all the workmen to treat this as one months' notice as per Order 11(3) of the Standing Orders, 1960, as termination of services till further orders.---
6. On the face of it, the notice reproduced above is quite legal. The services of the workmen could be terminated ort one month's notice because of non-availability of Cotton Yarn. The question, however, is whether the notice, reproduced above, is bona fide. It is always open to the workmen to challenge the bona fides of the Management in terminating their services. It, can be contended by the workmen that the ground stated in the A r notice terminating their services was a mere device to meet the requirement of law. The ground doing away with their services) did not exist. In the present case, I find that the witness for the Management himself gave another reason for terminating the services of the workmen than the one mentioned in the notice, already reproduced above. Shaikh Mohiuddin, who is Group Manager in the appellant's concern, stated as under:- "From 20th June 1966 to 23rd August 1966, there was a lay--- oft: This was due as Excise Duty was imposed on Cotton Yarn and the Government had not evolved any procedure for the clearance of the yarn from the Mills. The closure was beyond the control of the Management."
7. The statement of Shaikh Mohiuddin clearly makes out quite a different ground for lay off.
According to Shaikh Mohiuddin, the workmen, of the Company were laid off because of the imposition of Cotton Duty by the Government. This is not the same thing as shortage of Yarn.
Moreover, Shaikh Mohiuddin admitted that the Management had got its own Spinning Mill, though it was also purchasing yarn from other Mills. If the Company has got its own Spinning Mill, the shortage of yarn could hardly arise. Mr. Shahani, however, contended that the Management asked the workers to resume their duty after yarn was available. In this connection, he relied on the statement of Sheikh Mohiuddin, which reads as under: "We had sent individual notices to the workers to join the Mills after the lay off."
It does not follow from this statement that the workers were called to join the Mill after the yarn was available. There is nothing in the statement of Shdikh Mohiuddin to make out a case that the Mill was closed because of the shortage of yarn: I am clearly of the view that the notice dated 16th May 1966, was only a device to terminate the services of the workmen, as, the Management was resisting payment of Excise Duty imposed by the Government. The appeal is dismissed.