1. ' The applicant-Union filed the application under section 34 of Industrial Relations Ordinance, 1969 alleging therein that the respondents are in the babit of contravening the provisions of law and had unlawfully withheld the amount of bonus which was granted to the workers under Standing Order 10-C of the West Pakistan Industrial and Commercial Employment (Standing Orders)
2. Ordinance, 1968.
3. ' The applicant-Union therefore filed 37 cases under section 25-A of I. R.
4. 0., 1969, on behalf of the concerned workmen before this Court. The respondents, in order to do away with the services of the workers, invited the concerned workers to their establishment to receive the aforesaid bonus and also asked the applicant to withdraw the cases. On this, the applicant-Union withdrew all the 37 cases and advised the workers to go to the respondent's Establishment in compliance with their instructions. The respondents paid the required bonus, but at the same time impressed upon the workers that they were compelled to effect retrenchment in their establishment necessitated by slumpness in the market, paucity of work orders and overdraft etc. On 25-2-1976, the respondents dispensed with the services of all the workers and brought the production to standstill under the garb of retrenchment. The applicant-Union alleges that the respondents have unlawfully closed down their establishment in contravention of the provisions of law as laid down in Standing Order 11-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
5. ' The applicant Union has also filed the application under section 45 of I. R.0., 1969, with the prayer to prohibit the illegal lock-out in the respondent establishment.
6. ' The respondents have controverted all the allegations of applicant Union. They contended that they have paid the bonus as per settlement. According to the respondents, the Union pressed that the company should accept the resignations of workers, so that, they could find better job elsewhere. While pressing this-demand, the Union- also demanded that the workers be paid gratuity as well as notice pay by accepting the resignations at once, which were accepted by the respondents. It is also the case of the respondents that the workers tendered their resignation on 24-2-1976 and 26-2-1976 which were accepted by the respondents on the same day. The workers who resigned, received all their dues in full and final settlement of their claim, including gratuity, notice pay and bonus for the financial year 1975-76, as agreed by the parties. The respondents have further contended that they have not locked out the workers as alleged by the applicant- Union, but it was by the workers themselves that they had voluntarily resigned from their services.
7. ' The applicant-Union examined Mohammad Shaib, General Secretary of the Union, on its behalf, while the respondents examined Haji Abdul Matin on their behalf. On the application of respondents, this Court also examined Mohammad Husain Qureshi as a Court witness.
8. ' I have heard Mr. S. M. Yaqoob, learned Representative for the respondents and I have perused the written arguments submitted by him. Mr. Mustafa Kemal Mirza, learned Representative for the applicants, expressed his inability- to argue the matter. He submitted an application that order be passed on the basis of evidence brought on record. I have carefully gone through the record of the case.
9. ' According to the application filed under section 34 of 1. R.0., 1969, the points which were raised by the applicant Union are :-
(1) That the respondents dispensed with the services of all the workmen in their establishment under the garb of retrenchment and brought the production to standstill.
(2) That the respondents have unlawfully closed down their establishment in contravention of the provisions of Standing Order 11-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
(3) That the respondents have declared illegal lock-out in their establishment with effect from 25- 2-1976.
(4) That the rights guaranteed or secured to the applicants under Standing Order 11=A have been encroaced upon.
10. ' In the application under section 45 of I. R.
11. 0., 1969, the applicants have prayed to prohibit the illegal lock-out w. e. f. 25-2.76 in the respondent's establishments.
12. ' It was contended by Mr. S. M. Yaqoob, the learned Representative for the respondents that the Silk Industry had been going through the serious crisis due to which many silk factories have to be closed down and the respondents also being a Silk Unit had to face hardship. The volume of work which had been considerably reduced, resulted in lower piece rate wages of workers and due to less work applicant-Union pressed for acceptance of resignations of the workers so that the workers could find out better jobs elsewhere. It was further pointed out that the applicant-Union was also demanding gratuity as well as notice pay by accepting the resignations at once. The respondents at first refused to pay the same as a result of which the workers filed number of cases against the respondents who subsequently agreed to pay gratuity and notice pay as well as bonus and accepted the resignations of all the workers. The learned Representative for the respondents also referred to agreement dated 21-2-76 (Exh. 6) which admittedly bears the L. T. I. Of applicant's witness and is not disputed by other side. According to the above settlement, it was agreed upon that the Management would pay all legal dues upto 25-2-1976 and the Union would withdraw all the cases. He further contended that thereafter, the workers tendered their resignations which were accepted and full and final payment was made to the workers who were also given the letters of acceptance of resignations, as well as service certificates. He referred to three sets of such documents Annexures B/1 to D/3, pertaining to the President, General Secretary of the Union and one other workers. The above documents show the acceptance of the resignations, receipt of all legal dues executed by the above three workers, payment vouchers and service certificates, issued by the respondents in favour of workers. Similarly a copy of letter addressed to the respondents by the Union, whicn is Annexure E to the counter affidavit, also shows that all the workers had received their dues and nothing was outstanding against A the respondents.
13. ' The applicants have alleged that services of workers were done away with by means of retrenchment. I do not find any force in the above contention as the above documents very ,clearly show that all the workers had themselves terminated their services by tendering resignations and under no circumstances, their services were terminated by the respondents.
14. ' It has also been alleged by the applicant-Union that the respondents have declare I illegal lock- out in their Establishment since 25.2-1976. The respondents have however denied the above allegations. The respondents have examined D. W. Haji Abdul Matin in support of their case and filed his affidavit on 21.6-1976. Time and again, the case was adjourned on the request of applicant's representative, who ultimately made an application on 18-5.1977 that he did not want to cross-examine the respondent's witness in view of the admissions made by the applicant's witness during his cross-examination by Representative for the respondents and therefore the case may be fixed for arguments. Thus the evidence of respondent's witness has gone unchallenged and unrebutted.
15. ' According to section 2(xii) of I. R.0., 1969, the lock-out has been defined as under :- " 'Lock-one 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."
16. ' According to the above definition, lock-out means closing down of a place of business or refusal by an employer to employ the persons employed by him. There is not an iota of evidence on the record to suggest that the respondents had declared the lock-out from 25-2-1976. On the contrary, there is ample evidence on record to suggest that the workers of the respondents' establishment had voluntarily resigned from the job. By any stretch of imagination, acceptance or resignations of workers by respondents or even the termination of services of the workers cannot be termed as lock-out.
17. ' It was next contended by learned Representative for the respondents that all the workers of the respondent's establishment, after acceptance of their resignations, received the dues in full and final settlement of their claim and received the service certificates and, therefore, they cannot be said to have felt any grievance and the relationship of Master and Servant does not axist any more and all the workers ceased to continue as members of the Union and the Union automatically stands dissolved and therefore it had no locus stands to file the case. He further urged that under the present circumstances, adjudication under section 34 of I. R.
18. 0., 1469, is not permissible and application should be dismissed. He referred to the observation of Division Bench of High Court of Sind & Baluchistan in the case of Mirza Majeed Baig and 3 others v.
19. Messrs Fatehally Chemical Limited and 2 others in which it was observed as under :- "Now though it may not be strictly correct to say that by accepting the dues the petitioners have precluded themselves from filing this petition. It certainly stands to reason, that having done so, they cannot be said to be a party aggrieved by the impugned orders within the meaning of the expression used in Article 98 of the late Constitution of 1962. I am. Therefore, inclined to come to the reluctant conclusion that notwithstanding my disagreement with the impugned orders the present1 petition must fail and it would even otherwise be improper to grant the discretionary relief in favour of the petitioners."
20. ' It has also been alleged by the. Applicant-Union that respondents have unlawfully closed down their establishment in violation of S.
0. 11-A of the Standing Orders, 1968. But this has been denied by the respondents. It has been argued on behalf of the respondents that the provisions of S. O. 11-A have not been violated and the respondents had not closed down their establishment or retrenched the workers, as alleged, but they themselves tendered the resignation as per S.
0. 12(1) of Standing Orders Ordinance, 1968. However I would make it very clear that in case the respondents wanted to close down their establishment due to any reason, it shall be necessary for C the respondents to seek prior permission of Labour Court in this behalf under S.
0. 11-A of Standing Orders Ordinance, 1968.
21. ' Mr. Yaqoob also challenged the maintainability of application under section 45 of I R.
22. 0., 1969, filed by the union. He contended that in absence of any industrial dispute raised dispute raised by the Union, the Union could not file any application under section 45 of I. R.
23. 0., 1969.
24. ' Section 45. Powers of Labour Court and Tribunal to prohibit strike etc.- (1) When a-strike or lock- out in pursuance of an industrial dispute has already commenced and is in existence at the time when, in respect of such industrial dispute, there is made to, or is pending before, a Labour Court, an application under section 34 the Labour Court may, by an order in writing prohibit continuance of the strike or lock-out.
(2) When an appeal in respect of any matter arising out of an industrial dispute is preferred to a Tribunal under section 38 the Tribunal may, by an order in writing, prohibit continuance of any strike or lock-out in pursuance of such industrial dispute which had already commenced and was in existence on the date on which the appeal was preferred."
25. ' The words "Industria1 Dispute" have been defined under section 2(xiii) of I R. 0:,1969, which reads as under :- "'Industrial dispute' means any dispute or difference between employees and employers or between employers and workmen or between workmen and workmen, which is concerned, with the employment or non employment or the terms of employment or the conditions of work of any person; and is not in respect of the enforcement of any right guaranteed or secured to him by or '.Rider any law, other than this Ordinance, or any award or settlement for the time being in force."
26. ' Similarly the words "raising of industrial dispute" have been defined in section 45 of the I. R.
27. 0., 1969, which reads as under :-- "43. Raising of infustrial dispute.--No industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner by a C. B. A. Or an employer."
28. ' Now what is the prescribed manner, in which the industrial dispute can be raised has been described under section 26 of the I. R.
29. 0., 1969. From the perusal of the record, I do not find any evidence on record as regards the raising of an industrial dispute by the Union with regards to the D retrenchment of workers. In the circumstances of the cases as there is no industrial dispute, the application under section 45 of I. R.
30. 0,, 1969, is note maintainable and no prohibitory order can be issued by this Court. Reliance is placed on the judgment report in 1976 PLC 31.
31. ' In view of the reasons given above. I do not find any substance n the above applications which are hereby dismissed. 1973 PLC 2971