On the receipt of an undated application from the General Secretary, Modern Tentage and Textile Industries Ltd. Workers' Union. Complaining that 25 workers whose names and designation had been given in` a list appended to the application of the said industries, at 14-Empress Road, Lahore had been locked out illegally by the Management w. e. f. 19-4-1974, the Assistant Director. Labour Welfare (Conciliation), Lahore Region, Lahore, held an enquiry. The Management represented before the Assistant Director that the General Secretary of the said Union was Rafique Butt, but the application had been made not by him but. - unauthorisedly, by a person who had no legal authority to do so, that 14-Empress Road, Lahore, being a residential area, the 52 contractors earlier working there had, in pursuance of an agreement reached on 26-ti-1973 in the presence of Muhammad Younus, Deputy Director, Labour Welfare, vacated the same, that only 4 workers, who had still been working, were, after completing the work, transferred to the Factory at Muridke and that there was no question of any lock-out. The Assistant Director noted in the course of his enquiry that only 4 of the workers had been working at 14-Empress Road, Lahore, while the rest had been working at Muridke, but finding that the identity-cards of the workers working at Muridke had been issued from 14-Empress Road, Lahore and disbelieving that they were contractors as had been urged by the Management, submitted his report to the Labour Court No. 1, Lahore on 23-5-1974, requesting that Court to adjudicate upon the matter.', The, Management contested the proceeding before the Labour Court and took up the preliminary objections on 10-6-1974 that (i) as the dispute related to the establishment situate at Muridke, the Labour Court No. 1, Lahore, had no jurisdiction and (ii) "the precise question" had been raised in 1973 but had been resolved in the presence of officers of the Labour Department in accordance with the undertaking given by the very persons, who had now moved the application. The objection to territorial jurisdiction was, however, overruled by the Labour Court on 11-6-1974 for the reason that "certain tickets" of the workers shown to the Court had been issued in 1973 by the Lahore office. Nevertheless, another objection to the jurisdiction was taken in an application dated 19-8-1974 on the ground that there was no factory at 14-Empress Road, Lahore, and that no workman ever worked at that premises. On 4-9-1975, none appeared on behalf of the Management and as such the Labour Court directed that the proceeding against them be held ex parte. After recording evidence, the Labour Court gave its decision ex parte on 24-9-1975, holding that the establishment at 14-Empress Road, Lahore, was independent and different from that at Muridke, that the number of workers employed at 14- Empress Road, Lahore had always exceeded 50, who, though mostly employed on piece-rated basis, were workers and not contractors and that they had been illegally locked-out since 19-4- 1974. The Labour Court, therefore, directed the Management to "immediately lift the illegal lock-out and also pay the dues admissible to the workers employed by the said management at 14- Empress Road, Lahore, for the period they have been illegally locked-out". The Management filed an application on 30-9-1975 for setting aside the ex parte order but the same was rejected by the Labour Court on 27-12-1975. The Management, thereupon, filed this constitutional petition challenging the validity of the proceeding before the Labour Court and the Assistant Director.
Labour Welfare, Lahore Region, Lahore as well as the report dated 23-5-1974 of the Assistant Director and the orders dated 4-9-1975, 24-9-1975 and 27-12-1975 of the Labour Court.
2. The case of the petitioner is that there is nothing on record to show that there existed any factory at 14-Empress Road, Lahore and as such the entire proceeding under section 46-A of the Industrial Relations Ordinance, which could only be taken with respect to employees of a factory, stood vitiated that there had been no industrial dispute pending before any authority on, before, or, after the date of submission of the report by the Assistant Director, Labour Welfare, to the Labour Court and as such the report made was a nullity, that as admitted by the Assistant Director, Labour Welfare, 21 of the 25 workers worked at Muridke in which case neither the Union at Lahore had any locus standi to institute the complaint in respect of them nor had the Labour Court No. 1, Lahore, jurisdiction over them, that since pay of the employees, their appointment, termination, transfer orders, identity cards and service books are issued ,from the Head-office, it would be a gross- misreading of evidence to draw inference from identity cards that there was factory at Lahore, that as the petitioners had not been bound down as contemplated in section 46-A of the Industrial Relations Ordinance, 1969, they could not be held ex parte, that in any case it had been incumbent upon the Labour Court to have examined the case from all relevant points which that Court had failed to do and, finally, that the proceeding before the Labour Court was ultra vires and of no legal effect for the reason that no notice had been served as required by law on the Collective Bargaining Agent or the registered Trade Union concerned.
3. On an application (C. M. 1/76) made by the petitioner in the writ petition, the impugned order of the Labour Court was suspended on 2-1-1976, whereupon, respondent No. 4, who had initiated the complaint before the Labour Officer, made appearance by filing application C. M. 3/76 dated 15-1- 1976 for dismissal of the Writ Petition and C. M. 4/76 dated 18-9-1976 for vacating the suspension order and for early hearing of the petition. The petition was then admitted to a full hearing on 7-2- 1977. All the respondents, other than the Labour Court, filed their written statements. The Assistant Director, Labour Welfare, respondent No. 2, asserted that the establishment of the petitioner at 14- Empress Road, Lahore, was a factory for the purposes of subsection (1) of section 46-A of the Industrial Relations Ordinance, 1969. He conceded that "The Unions at both the establishments at Muridke and Empress Road, Lahore, had independent membership and did not extend from one to another", that "The Collective Bargaining Agent also had been determined only for the establishment at Muridke on 22-8-1974" and that "Collective Bargaining Agent at Muridke had nothing to do with the affairs at the Empress Road, Lahore". He, however; reiterated that the fact that 21 workers stated to have been working at Muridke had been issued identity cards from the establishment at 14-Empress Road, Lahore, went to prove that they were the employees of the establishment at Empress Road, Lahore, and that they, during their such employment, could not be members of the Union of the establishment at Muridke. The case of respondent No. 4, who is General Secretary of the Modern Tentage and Textile Industries Limited Workers' Union, as outlined in his written statement as also 'in his earlier application C. M. 3 of 1976 under section 151, C. P. C. Is that the Management had "its complete factory" at 14-Empress Road, Lahore, that it had also, after 1965, started a factory at G. T. Road, Muridke in Sheikhupura, that the workers at the factory at 14- Empress Road, Lahore had formed into three Trade Unions one after the other, namely, (i) Modern Tentage Industries Labour Union, (ii) Modern Tentage and Textile Industries Ltd. Workers' Union, and
(iii) Modern Tentage and Textile Industries Mazdoor Union, and that these Unions had nothing to do with the factory situate at Muridke. His case was expressed in the following words : "That the writ petitioner wanted to deprive the workers employed at 14-Davis Road, Lahore of their legal dues and also wanted to do away with their Unions. For this purpose he started to lock-out the various sections of the factory and thereby to terminate the services of the workers for which the present petitioner addressed various applications to the authorities including the one before the Chief Minister of Punjab on 25-3-1974 with the reference to other applications copy whereof is attached herewith as Annex. "E". The present petitioner has also submitted another application before the Assistant Director, Labour Welfare, Lahore against the illegal lock-out imposed by the writ petitioner on the workers whereupon the Assistant Director, Labour Welfare called the parties."
Respondent No. 3, which is Modern Tentage and Textile Industries Limited Workers' Union, Muridke, on the other hand, urged that 21 of the 25 workers allegedly locked-out, were actually working at Muridke and had never been stopped from doing their work, that they were members of respondent No. 3 which was the concerned Union as also the Collective Bargaining Agent to- represent their case for the purposes of section 46-A (2) of the Ordinance and that as it had not been served a notice, the proceeding before the Labour Court was without jurisdiction.
4. Section 46-A of the Industrial Relations Ordinance relates to the procedure for reference to and adjudication by the Labour Court of an "illegal lock-out in a factory". A "lock-out" under the Ordinance 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 workmen employed by him where such closing, suspension or refusal occurs in connection with an industrial dispute or is intended for the purpose of compelling workmen employed to accept certain terms and conditions of or affecting employment."
A lock-out will be "illegal" if it is declared, commenced or continued otherwise than in accordance with the provisions of the Ordinance.
5. "Factory" is not defined under the Ordinance and as such its definition as given under the Factories Act, 1934, would be relevant. "Factory" under that Act means "any premises, including the precincts thereof, whereon ten or more workers are working or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on or is ordinarily carried on with or without the aid of power, but does not include a mine, subject to the operation of the Mines .Act, 1923."
6. The Assistant Director, in his evidence before the Labour Court had admitted "I received the list of 25 persons along with the application for lock-out received from the Union. I had ascertained as to where the said 25 workers were working. I found that four were working at 14- Empress Road, while 21 were working at Muridke, District Sheikhupura."
It was contended on behalf of the petitioner that as the number of persons working at the Lahore establishment was only 4, that establishment could not be a factory. Their case was that they had only one factory which was at Muridke and that they only maintained the Head-office at 14- Empress Road, Lahore, where they bad earlier engaged some contractors who had later agreed, by an agreement, to move to the factory at Muridke, which they had done. It is to be noted that for the purpose of ascertaining whether a premises was a factory or not, we have to see the number of persons working "on any day preceding twelve months". According to Syed Rashid Ahmad Andrabi (P. W. 6), the number of persons working at the Lahore premises at the time of his visit on 28-5-1973 had been 87. In the petitioners' own application made before the Assistant Director (Exh. P. 7 of the Labour Court's record), it had been stated that 52 "contractors" who had been working at the Lahore premises had agreed to vacate the premises in terms of agreement dated 26-t-1973. As the lock-out had been allegedly declared on 19-4-1974, it is obvious that more than ten employees had worked at the premises within the preceding twelve months. On the question whether those employees were workers, we may look to the definition of the term given in section 2 (xxviii) of the Ordinance, which reads: "(xxviii) `Worker' and 'workman' means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be expressed or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off, or removal has led to that dispute but does not include any person
(a) who is employed mainly in a management or administrative capacity, or
(b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature."
The definition is wide enough to cover even persons working on contract so long as they work in a premises in which manufacturing process is being carried. "Manufacturing process", according to the Factories Act, means : "any process
(i) for making, altering, repairing, ornamenting, finishing, or packing, or otherwise treating any article or substance with a view to its use, sale, transport, delivery or disposal ; The Management has called those employees as contractors but has not specified in the petition or in their pleadings before the Labour Court, the precise nature of their employment. On the other band, Syed Rashid Ahmad Andrabi (P. W. 6) bad described them as "workers" "working in the factor is of Modern Tentage at 14-Empress Road, Lahore." The material on record, therefore, does not bear out that the employees were not workers, and as such the Management must be held to have failed to establish its contention that the premises at 14-Empress Road, Lahore, was not a factory.
7. In order to bring a situation within the definition of "illegal lockout" reproduced in para. 4 above, we must, however, see whether the said lock-out was "(i) in connection with an industrial dispute" or (ii) "intended for the purpose of compelling workmen employed to accept certain terms and conditions of or affecting employment." The first point is certainly not available in the present case because the Assistant Director, Labour Welfare (P. W. 3) had testified "When I received the Application under section 46-A, there was no industrial Dispute." On the second point, we have the assertion of the petitioner that 24 of the 25 persons, on whose behalf the complaint had been made, had actually been working at Muridke. This fact, as already noted, was admitted by the Labour Officer (P. W. 3). This is also the stand taken by the Union at Muridke i. e. Respondent No. 3, which claims these 21 persons to be its members. The Referendum Register produced before this Court by H. R. Haider of the office of the Registrar of Trade Unions (photostat copy of the relevant portion of which has been supplied and which bears the acceptance of its correctness by the concerned Union, dated 15-8-1974) shows that the following of the said 25 persons had been duly enrolled as members of the Modern Tentage and Textile Industries Limited. Workers' Union, Muridke, i.e., respondent No. 3, from the dates shown against each : There is nothing in the impugned order of the Labour Court to show that this Referendum Register had been seen. In spite of the admission of the Assistant Director, Labour that these 21 men were working at Muridke, the Labour Court had by its interlocutory order dated 11-6-1974 rejected the objection to the territorial jurisdiction on the ground that "the Headquarter of the Modern Tentage and Textile Industries Ltd. Is at 14-Empress, Road, Lahore" and that "certain Tickets of the workers" had been shown, the contents of which indicated that the tickets had been issued by the Lahore office. No particulars of these tickets were noted except the fact that the same had been issued in 1973. In its final order dated 24-9-1975, the Court did refer to four identity cards produced as Exh. P.
W. 7/1 to Exh. P. W. 7/4. The first two are in respect of Noor Ahmad son of Muhammad Ibrahim, the third is of Abdul Hamid son of Feroze Din and the fourth of Ghulab Din son of Mehr Din. But as none of these persons figures in the list of the 25 workers afeged to have been locked-out, these identity cards had no relevance. The Labour Officer (P. W. 3) had also. Referred to identity cards as the basis for his statement that :- "These 21 persons were shown in the strength of 14-Empress Road, Lahore, as their identity cards were issued from the Empress Road, Lahore."
But no such identity cards are in evidence nor is it known as to the period to which they related. If these 21 or so workers were actually working at the relevant time at Muridke, which is in Sheikhupura District, and were also enrolled as members of the Union there, the question of jurisdiction of Labour Court No. 1, Lahore, needs to be examined further particularly in view of its own finding that : "It is amply proved that the Modern Tentage - & Textile Industries, 14Empress Road is an independent and different establishment vis-a-vis the Modern Tentage & Textile Industries, Muridke."
It is to be noted that the jurisdiction of Labour Court No. 1, Lahore, under Notification No. S. O. (Lab- VI) 3/4-73 Vol-11, dated 24th February, 1977, covers the area comprised by "Moghalpura, Lahore Cantt., Police Stations Nawankot, Chung, Ichhra, Gulberg, Baghbanpura, Mozang, Kahana, Wahdat Colony, Old Anarkali, New Anarkali, Lohari and all cases of Punjab Road Transport Board, relating to Civil District of Lahore."
Muridke is not in the area given above.
8. Another defect in the exercise of jurisdiction is the absence of notice to the concerned Union/Combined Bargaining Agent in respect of those workers who were working at the relevant time at Muridke. Subsection (2) of section 46-A of the Industrial Relations Ordinance, requires that the Labour Officer after completing the enquiry "shall serve a notice on the employee and the Collective Bargaining Agent or the Registered Trade Union concerned with the dispute to appear before the Labour Court". Since this is requirement of law, its compliance was necessary. The Labour Court had, in fact, on 23-5-1974 (vide Order-sheet of that date) directed "to serve notice on the employer and the Collective Bargaining Agent". The Assistant Director Labour (P. W. 3) in his evidence had stated, "The application complaining about the lock-out was made by the bargaining agent. As there was one Union in the establishment there was no certificate of C. B. A.
As there was no other Union functioning at 14-Empress Road, 1, therefore, did not summon any other Union". This statement cannot apply to workerswhich as admitted by the witness himself, had been working at Muridke and as shown from the register of Registrar of the Trade Unions, been enrolled as members of the Union at Muridke i.e. Respondent No. 3. It is to be noted that Muridke Union had asserted that it had not been served which assertion had gone uncontradicted.
Obviously if the two establishments i. e. One at Muridke and the other at Lahore are as held by the Labour Court, "independent and different", the Union at Lahore could not represent the workers working at Muridke and enrolled as members of Union there.
9. Ch. Ghulam Qadir, learned counsel for respondent No. 4, urged that the labourers working at Muridke had gone there from Lahore as a temporary measure and with the understanding that they would be brought back to Lahore which was subsequently refused, which refusal would amount to lock-out in regard to them. The difficulty, however, is that there is no proper material on which to hold that the workers working at Muridke had gone there under some sort of agreement, according to which they were to revert to Lahore. At least no such case is made out in the original application which had been moved before the Assistant Director Labour. All that was said therein is that the Management of the Modern Tentage and Textile Industries Limited, 14-Empress Road, Lahore, had illegally locked out the workers from 19-4-1974 without giving any written reason.
Moreover, there is nothing to show that the workers had been refused to work at Muridke. That being so, their grievance could be against the Management's refusal to transfer them back to Lahore. In that event, and there admittedly having been no industrial dispute, the Management, upon proper showing, can be held guilty, if at all, of unfair labour practice under section 15 and liable therefor under the penal provision of section 53 of the Industrial Relations Ordinance. This could apply also to the 4 persons who had been working at Lahore but had been transferred to the factory at Muridke. All these points require a thorough scrutiny before jurisdiction under section 46- A could be invoked by the Labour Court and unless jurisdictional facts are resolved, the order, as. At present passed by the Labour Court, cannot be sustained. 1, therefore, declare the impugned orders dated 4-9-1975, 24-9-1975 and 27-12-1975 of the Labour Court to be without lawful authority and of no legal effect. The result is that the matter will be decided afresh by the Labour Court. There should be no order as to costs.