1972 P L C 220

[Sind Labour Appellate Tribunal]

Present: Inamullah Khan, Appellate Tribunal

Appeal No. KAR‑371 of 1971

WORKERS' UNION

Versus

MESSRS INDUS CHEMICALS & ALKALIS LTD., KARACHI

Appeal No KAR‑25 of 1971

MESSRS INDUS CHEMICALS & ALKALIS LTD.

Versus

WORKERS' UNION

Appeals Nos. KAR‑371 and 25 of 1971, decided on 31st May 1971.

(a) Industrial Relations Ordinance (XXIII of 1969)------

----S. 34 read with Ss. 2(iii), 2(xix), 26, 28, 43 & 47‑Application to Labour
Court‑Words "prescribed manner" in S. 43‑Mean prescribed by rules and
not as prescribed in Ss. 26 & 28‑Procedure prescribed in Ss. 26 & 28, held,
not pre‑requisite for an application under S. 34 by Collective Bargaining
Agent seeking redress of violation of rights of workmen guaranteed by
.law, award or settlement‑Exis tence of an industrial dispute envisaged in
S. 43‑Not a condition pre‑requisite for application under S. 34.

An application under section 34 of the Industrial Relations Ordinance,

1969 seeking redress against dismissal of workers during pendency of
conciliation proceedings in 'contravention of section 47 of the Ordinance
was contested as not maintainable due to failure of procedure laid down
in sections 26 and 28 of the Ordinance. 'It was contended that since the
procedure pres cribed in sections 26 and 28 had not been followed there
could not exist any industrial dispute in view of the provisions of section
43 and as such, there being no industrial dispute in existence an
application under section 34 was not maintainable.

Held: According to the definition of "industrial dispute" in section 2(xiii)

of the Industrial Relations Ordinance, 1969 it would appear that the
scope of section 34 of the Ordinance is very limited. It is not in respect of
all industrial disputes that the Collective Bargaining Agent can make an
application under section 34 of the Ordinance. It is only in respect of a
limited kind of industrial dispute, namely, "which is guaranteed or secur
ed to workmen by or under any law for the time being in force or an
award or settlement." It follows, therefore, that the application which can
be made under section 34 of the Ordinance is not in respect of an
industrial dispute as envisaged by section 43 of the Ordinance, but in
respect of relief which the workmen are entitled under any law or award
or settlement. The Collective Bargaining Agent, for instance, cannot raise
an industrial dispute under section 34 of the Ordinance for bonus, house
rent or uniform. These disputes can be raised only as industrial disputes.

The scheme of Industrial Relations Ordinance, 1969, as it stood prior to

its amendment on 17th October 1970, was to recognise the supremacy of
the Collective Bargaining Agent. The individual workman as under 1968
repealed Ordinance could not approach the Industrial Court under the
present Ordinance even if he was dismissed or removed from service
during the pendency of an industrial dispute. The 1969 Ordinance, while
giving importance to Trade Unions divided the industrial disputes into
two parts, namely, industrial disputes as defined under section 2(xiii) of
the Ordinance and the one as stated under section 34 of the Ordinance.
The intention of the Legislature appears to be that in case of industrial
disputes which have no basis under any law, award or settlement, the
Collective Bargain ing Agent should give notice to the employer
conveying its demands. The Legislature provided an opportunity for
negotiations between the Collective Bargaining Agent and the employer
through the intervention of the third party, the Conciliator. When
conciliation failed, the Collective Bargaining Agent was given a right to
bring pressure on the employer through strike notice. The workers could
not go on strike immediately on giving a notice but had to wait for 21
days, providing sufficient time to the employer to consider the demands
of the Collective Bargaining Agent. After the strike notice the conciliation
proceedings were to start again. In case of failure of conciliation
proceedings the Conciliator was to try to persuade the parties to refer
their dispute to an Arbitrator agreed upon by the parties. After every
method to bring about a peaceful settlement between the parties bad
failed, the Collective Bargaining Agent could go on strike in accordance
with the notice of strike. In case the strike continued for more than 30
days, the Provincial Government could by order in writing prohibit the
strike and forthwith refer the dispute to the Labour Court. It is
noteworthy that the Creative Bargain ing Agent could not on its own in
spite of its Demand Notice and Strike Notice approach the Labour Court
for determination of its dispute. On the other band, the Collective
Bargaining Agent could approach the Court directly for redress of the
grievances of the workmen in respect of those industrial disputes which
arose out of any right guaranteed to workmen by or under any law or an
award or settlement. It is important to note that even if the procedure
prescribed for raising an industrial dispute was gone into the Collective
Bargaining Agent could not approach the Court directly, except through
the Provincial Government.

The contents of section 34 of the Ordinance indicate that the Collective

Bargaining Agent could apply to the Court directly without taking
recourse to the detailed procedure for raising an industrial dispute. On
the face of it, where certain right is guaranteed under any law, the
question of negotiation through the Conciliator did not arise. The
aggrieved party could go directly to the Court and get the relief to which
it was entitled under any law. Section 47 of the Ordinance, for instance,
guaran teed that conditions of service would remain anchanged while
conciliation proceedings or proceedings are pending before an
Arbitrator, a Labour Court or Tribunal. An employer could not dismiss a
workman without the permission of the Conciliator, the Arbitrator, the
Labour Court or the Tribunal, while any such proceeding' was pending
before anyone of them. If there was violation of the guarantees provided'
under section 47 of the Ordinance, the Collective Bargaining Agent could
approach the Court under section 34 of the Ordinance without taking
recourse to section 26 or section 28 of the Ordinance. The object of
industrial Relations Ordinance, 1969, is not to create difficulties in the
way of the Collective Bargaining Agent or the workmen to get quick
redress of their grievances.

The conclusion that section 34 of the Ordinance is not depended on the

procedure laid down under section 26 and section 28 of the Ordinance is
further borne out by section 35(5)(a) of the Ordinance. Section 35(5)(a) of
the Ordinance shows that on the one hand, the Court would have
jurisdiction to proceed with an industrial dispute when it is referred to it
by the Provincial Government and on the other hand, it can proceed to
adjudicate the industrial dispute relating to a matter in respect of which
an application is made to it under section 34 of the Ordinance.

Abbas Al: Shah v. WAPDA, Lahore 1970 P L C 376 distin guished.

Muhammad Makki v. Noor Silk Mills 1970 P L C 67 and Modern Sanitary

Fittings Mfg. Co. Ltd. Sramic Union v. Modern Sanitary Fittings Mfg. Co.
Ltd., Dacca 1971 P L C 58 held not applicable.

(b) Industrial Relations Ordinance (XXIII of 1969)----

----S. 2(xxv)‑Strike‑Workers failing to attend due to threat or coer cion by

others or under belief that there was strike returning home to avoid
trouble for one day only and reporting for duty sub sequently ‑ No
evidence of having acted in combination or under some common
understanding‑Such workers, in circumstances, held, cannot be said to
have participated in strike and hence not guilty of any illegal strike.

(c) Industrial Relations Ordinance (XXIII of 1969)-----

----S 2(xvi)‑ Lock‑out‑No evidence that management refused entry of

workers to factory premises in order to compel them to accept terms and
conditions affecting employment or stopping of working because of some
industrial dispute‑No lock‑out.

(d) Industrial dispute‑-----

---- Retrenchment‑Production having gone up‑No plea against bona fide

retrenchment due to re‑organisa tion‑Number of workmen to be
retrenched can be decided by Management.

(e) Industrial Relations Ordinance (XXIII of 1969)-------

----S. 47 --Retrenchment due to bona fide re‑organisation‑Services of work

men, not office‑bearers of Trade Union, during pendency of' conci liation
proceedings terminated due to re‑organisation‑No contra vention of S. 47.

Pakistan Petroleum Workers Federation v. Burmah Shell Oil Storage and

Distributing Co. of Pakistan Ltd. P L D 1961 S C 479 rel.
(f) Industrial dispute-----

----‑Re‑instatement‑Back wages, payment of‑Dismissal due to misconduct

set aside for want of enquiry and violation of principles of natural
justice‑‑Payment of back wages, in circumstances, held, would depend
upon enquiry to be conducted by Management.

Glaxo Laboratories (Pak.) Ltd.'s case 1962 P L C 367, rel.

Ali Amjad for Appellant (in Appeal No. KAR‑371 of 1971).

Ali Ahmad Fazeel and S. A. Shamsi for Respondent (in Appeal No.
KAR‑371 of 1971).

Ali Ahmad Fazeel and S. A. Shamsi for Appellant (in Appeal No. KAR‑25 of
1971).

Ali Amjad for Respondent (in Appeal No. KAR‑25 of 1971).

Date of hearing: 15th May 1971.

DECISION

These are two connected appeals against an award dated the 27th of
February 1971, whereby the learned Chairman of the Second Sind
Labour Court, Karachi, ordered the re‑instatements of S. I. Raza and
Masood Hasan Jdani, who were the President and General Secretary,
respectively, of the Indus Chemical and Alkalis Limited Workers' Union
(hereinafter called the Union) and 167 workmen and refused to re‑instate
other 8 workmen. The workmen were to be re‑instated with back wages,
benefits and continuity in their service. Appeal No. KAR‑371/71, is by the
Union against the order refusing to re‑instate 8 workmen, while Appeal
No. KAR‑25/71, is by the Management against the order of re‑instatement
of 169 workmen. The facts giving rise to the appeals briefly put are these.

2. Messrs Indus Chemicals and Alkalis Limited (hereinafter called the

Company) went into production in 1966. Indus Chemicals and Alkalis
Limited Workers' Union was recognized by the Company in December
1968. On 20th April 1970, the Union sought to amend its Constitution by
op‑.ring its member ship to other industries belonging to the Company. It
sought permission of the Registrar, Trade Unions to approve its amended
Constitution. The Registrar by its letter dated 25th May 1970, refused to
grant permission to amend the Constitution of the Union. The Company
on the same date, i.e. 25th May 1970, informed the Union that it had
become illegal because of the amendment of its Constitution. The Union,
however, after receipt of the letter from the Registrar, Trade Unions, held
a General Body Meeting on 29th May 1970 and withdrew the amendment.

3. The Union, on 27th April 1970, gave a notice under section 26 of the
Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance)
On 16th May 1970, the conciliation proceedings having failed, the Union
gave a Notice of Strike under section 28 of the Ordinance. Thereafter,
conciliation meeting was held on 26Th May 1970. The Company, on the
plea of re‑organization, on 30th May 1970, terminated the service of 9
surplus employees including S. I. Raza and Masood Jilani, President and
General Secretary of the Union. Notice of termination of service was
served on 8 of the employees, except S. I. Raza, on 30th May 1970.

4. According to the Company, on 31st May 1970, S. I. Raza and Masood

Jilani went to the Chief Engineer, Mr. Siddiqi, at about noon time and told
him that they will go on strike from 1st June 1970. In the afternoon, they
had a scuffle with Mr. Shaft, Security inspector of the Company. A report
was lodged with the police on the same date about the incident. On 1st
June 1970: Raza and Mani came to the factory and stopped the workers
from going to work. They also went to two Bus Stops where they stopped
the buses of drivers Nazir Ahmad and Chand Zaheer and told the
workers, who were coming to the factory that there was a strike and that
they should go back to their houses. The Company, on 1st June 1970
informed the Labour Director that there was an illegal strike. On 2nd
June 1970, the Company posted a notice on the board informing the
workers to resume duty or to submit explanations otherwise action will
be taken against them. Some persons did submit their explanations,
which were found to be unsatisfactory and they were dismissed from
service on 12th June 1970. In all 167 workmen according to the Union
were dismissed.

5. The Union made an application under section 34 of the Ordinance on

20th June 1970, praying for re‑instatement of the workmen, whose
services had been dispensed with during the pendency of conciliation
proceedings, to withdraw the lock‑out and pay the workmen their
salaries for the period of lock‑out. The learned Labour Court on 21st
November 1970, after recording the evidence of the parties, dismissed
the application of the Union on the ground that it was not a Collective
Bargaining Agent. This conclusion was based on the ground that there
was another Union and no referendum had been held to determine the
Collective Bargaining Agent. On appeal, however, relying on section 52 of
the Ordinance I did not agree with the conclusion of the learned Court
and remanded the case for determination on merit.

6. The Company raised several pleas. It contended that the Union by

amending its constitution became illegally constituted and, therefore, the
application was not maintainable. That on 5th December 1969, an
agreement effective for 18 months was signed by the parties, one of the
terms of agreement was that no demand involving financial liability
could be raised during the period. The striken notice containing
demands, which could not be raised, was bad in law. The services of 9
persons were terminated in the course of bona fide re‑organization of the
Company, which was in contemplation of the Management since a long
time. So far as the incident of 1st June 1970 is concerned, it was alleged
that there was a fight between the rival Unions, the Union urging for the
strike while the rival Union resisted the same. The police had to be
summoned to maintain law and order. Disciplinary action was taken
against the persons, who had gone on illegal strike and those who were
absent from duty. The Company, it was urged, did not violate any law or
withdrew any rights guaranteed under the law and, therefore, the
petition was not maintainable.

7. On behalf of the Union, three witnesses were examined namely, S. I.

Raza, the President of the Union, Masood Jilani, the General Secretary of
the Union and Shamim Asghar. The Company examined 9 witnesses,
namely, Abdul Shakoor, Assistant Sub‑Inspector of Police, Chand Zaheer,
Bus Driver Nazir Ahmad, Bus Driver, Khalid Rashid Siddiqi, Chief
Engineer, Javed Anjum, Assistant Manager, Mohammad Abdul Jaleel,
Assistant to the Managing Director S. Sikandar Ali Shah, whose bus was
intercepted, Ghulam Rasool. worker, who was present in the Canteen
when S. I. Raza is said to have addressed the workers and Mohammad
Shafi, Security Inspector of the Company.

8. The learned Court, on the contentions of the parties framed the

following points for determination :‑

(1) Whether the petitioners were entitled to raise the industrial dispute?

(2) Whether the settlement entered into between the parties on 5‑12‑1969
would bar the dispute now raised?

(3) Whether the re‑organization carried out and the subsequent

dismissals were colourable and mala fide?

(4) Whether there was a strike or a lock‑out, and whether the same was
legal?

(5) Whether the petition as framed would be maintainable?

(6) Whether the petitioners were entitled to any relief?

9. In respect of the 1st ground, Mr. Shamsi, the learned Advocate for the
Company on two‑fold grounds, contended that the Union was not entitled
to raise an industrial dispute. He contended, in the first place, that there
being no evidence to show that the demands raised by the Union, were
approved by the Members in a General Body Meeting. The learned Court
came to the conclusion that it was not necessary for a notice under
section 26 of the Ordinance that the same should have been approved in
a General Meeting. In the second place, Mr. Shamsi had contended that
the Constitution of the Union having been amended, the Union lost its
entity. The learned Court came to the conclusion that the amended
Constitution having not been approved of by the Registrar of Trade
Unions, the Union cannot be said to be not duly constituted one.

10. On the second issue, the learned Court came to the conclusion that
the agreement dated 5‑12‑1969, did not bar the present dispute.

11. The learned Court tried Issues Nos. 3 and 4 together and came to the
following conclusion :‑

"I am clearly of the opinion that S. I. Raza and Masood Gilani who were
allegedly retrenched, and 167 workers (as mentioned In the Schedules)
who were dismissed were deprived of their jobs, as a result of
victimization and unfair labour practice in a colourable exercise of the
power. The lock‑out was illegal, because an industrial dispute had been
raided; a conciliation meeting had already been held and the next one
was fixed for 2‑6‑1970. It was the inalienable right of the workers to go on
strike, after fulfilling the requirements of law. They lead pursued their
course in accordance with law."
12. On Issue No. 5, the learned Court held that the Petition was
maintainable.

13. In the result, as already stated, S. I. Raza and Masood Jilani alongwith
167 workmen were ordered to be re‑instated with back wages benefits
and with continuity of their service While the relief in respect of Majid
Husain Zaidi and 7 others was disallowed.

14. Before I consider the contentions raised by Mr. Ali Ahmad Fazeel, the
learned Advocate for the Company and Mr. Ali Amjad, the learned
Advocate for the Union, it would be useful to clarify the position as to the
number of workmen the Union wanted to be re‑instated. In this
connection, a reference may be made to the application of the Union
under section 34 of the Ordinance. The relief runs as under :‑

"It is, further prayed that the Court may be pleased to order the
re‑instatement of the General Secretary and the President of the Union
petitioner and of the workmen whose names are included in the List
Schedules I and II to declare that the lock‑out effected by the respondent
and change in the service conditions is illegal, to require the respondents
to withdraw the lock‑out and to pay to all workmen their due salary for
the period of lock‑out."

15. Schedule I is at page 41 of the record of the learned Court. It gives the
names of 9 persons including S. I. Rata, the President of the Union and
Masood Hasan Jilani, General Secretary of the Union. Schedule II is at
page 47 of the record of the learned Court. It gives the names of 29
workmen. If the application under section 34 of the Ordinance was
strictly construed, the Union would not be entitled to claim reinstate
ment of more than 38 persons. It is, however, noteworthy that in para. 13
of the application under section 34 of the Ordinance, there is an addition
of "and others" in the handwriting of someone which is not initialled.
Para. 13 runs as under :‑

"That subsequent to the lock‑out the respondents have issued

charge‑sheets to a large number of workmen falsely alleging that they
have gone on an illegal strike from 1st June 1970, and have also mala fide
and illegally terminated the services of workmen whose names are given
in the Schedule II and others (the latter two words are in the handwriting
of someone without any initial) without recourse to the provisions of law
and/or holding any enquiry, and when in fact they had been locked‑out."

16. I would not, in the circumstances which I would presently mention,

bind the Union to the relief which they have claimed, i.e., the
re‑instatement of only 38 workmen. In the first place, no objection has
been taken that the Union is not entitled to anymore relief than what it
has claimed. In the second place, as would appear from the statement of
Mr. Abdul Jaleel, Assistant Managing Director of the Company, who
produced Exh. R. W. 6/14, which is a list of persons, who had been
dismissed from service. It appears from Exh. R. W. 6/14 that 101 persons
were dismissed from service on the ground of continuous absence from
duty for more than 14 days, 13 persons were dismissed from service on
the ground that they were on an illegal strike and 24 persons were
dismissed from service on the ground of absence from duty the wore
than 10 days and also because they had gone on au illegal strike. The
total number thus comes to 138 persons, who had been dismissed from
service. It is worth mentioning at this stage that according to Masood
Haan Jilani, General Secretary of the Union 167 persons were dismissed
by the Company. Jilani stated as under :‑

"The persons who had been locked‑out on the 1st are 159 in number. I
produce the list as Exh. A. W. 3/2. Apart from these 159 workers, the
services of 8 other workmen had been terminated on 30th of May or
thereafter."

17. It was necessary to refer to the statement of Jilani as the learned

Court had ordered as under :‑

"The termination of the services of S. I. Raza and Masood Jilani and the
dismissal of the other 167 workmen (other particularised in the
Schedules on different dates in the month of June cannot be upheld."

18. There are three Schedules, two have been filed along with the
application under section 34 of the Ordinance and the third is Exh. A. W.
3/2. The names of 159 workmen are given therein. There is on the face of
it, some confusion in the operative portion of the order. At best, the
Union was claiming for re‑instatement of 159 persons together with 8
others. The total came to 167 workmen. The Court granted relief to 169
persons after refusing to grant relief to 8 persons. In these circumstances,
namely, that no objection was taken by the Company that the relief
claimed is limited to only 38 persons and the case of the Company also
being that it had dismissed 138 persons, I would not limit the Union to
the relief it has claimed.

19. I would now proceed to consider the contentions raised by Mr. Ali
Ahmad Fazeel, the learned Advocate for the appellant Company. It was
very strenuously contended in the first place, that the application under
section 34 of the Ordinance was not maintainable as the pre‑requisites
for an application under section 34 of the Ordinance were not fulfilled. In
this connection, he relied on section 43 of the Ordinance, which reads as
under :‑

"No industrial dispute shall be deemed to exist unless it has been raised
in the prescribed manner by a collective bargaining agent."

20. The learned Advocate submitted that in order that an industrial

dispute may be deemed to exist it was necessary that the provisions of
section 26 and section 28 of the Ordinance should have been complied
with. Under section 26 of the Ordinance if the Collective Bargaining
Agent finds that an industrial dispute is likely to arise it shall
communicate its views in writing to the other party. If the negotiations,
which may start after the notice, fail, the Collective Bargaining Agent will
give 21 days' notice of strike to the employer under section 28 of the
Ordinance. It was only after these preliminaries have been gone into, it
was contended, that an application under section 34 of the Ordinance
could be made.

21. The argument of Mr. Fazeel appears to be plausible as under section

34 of the Ordinance no industrial dispute could be deemed to exist unless
it was raised in the prescribed manner.

But on a careful analysis of the provisions of the Ordinance, I am clearly

of the view, for the reasons which I would mention presently, that it is
not necessary for an application under section 34 of the Ordinance to
have recourse to the provisions of sections 26 and 28 of the Ordinance.

22. Prescribed has been defined in section 2(xix) of the Ordinance, which
means, "prescribed, by rules." No Rules have so far been prescribed
specifically for raising an industrial dispute. At any rate, even if the Rules
had been prescribed for raising an industrial dispute it would not have
been necessary to follow the Rules prescribed for raising an industrial
dispute in order to make an application under section 34 of the
Ordinance. A clear distinction exists between section 43 and section 34 of
the Ordinance. It would be useful to reproduce section 34 of the
Ordinance, as it stood before its amendment on 17th October 1970. It
runs as under :‑

"Any party to an industrial dispute relating to a matter arising out of any

right guaranteed or secured to an employee or workman by or under any
law for the time being in force or an award or settlement may apply to
the Labour Court for, adjudication of the dispute."

23. Industrial dispute is defined under section 2(xiii) of the, Ordinance,

which means : ,

"any dispute or difference between employers and employers or between

employers and workmen or between workmen and workmen which is
connected with the employment or non -employment or the terms of
employment or the conditions of work of any person ;"

24. It would appear from the above definition of industrial dispute that
the scope of section 34 of the Ordinance is very limited. It is not in
respect of all industrial disputes that the Collective Bargaining Agent can
make an application under section 34 of the Ordinance. It is only in
respect of a limited kind of industrial dispute, namely, "which is
guaranteed or secured to workmen by or under any law for the time
being in force or an award or settlement." It follows, therefore, that the
application which can be made under section 34 of the Ordinance is not
in respect of an industrial dispute as envisaged by section 43 of the
Ordinance, but in respect of relief which the workmen are entitled under
any law or award of settlement. The Collective Bargaining Agent, for
instance, cannot raise an industrial dispute under section 34 of the
Ordinance for bonus, house rent or uniform. These disputes can be
raised only as industrial disputes.

25. The scheme of Industrial Relations Ordinance, 1969, it stood prior to

its amendment on l7th October 1970, was recognize the supremacy of the
Collective Bargaining Agent. The individual workman as under 1968
repealed Ordinance could not approach the Industrial Court under the
present Ordinance even if he was dismissed or removed from service
during the pendency of an industrial dispute. The 1969 Ordinance, while
giving importance to Trade Unions divided the industrial disputes into
'two parts, namely, industrial disputes as defined under section 2(xii) of
the Ordinance and the one as stated under section 34 of the Ordinance.
The intention of the Legislature appears to be that in case of industrial
disputes which have no basis under any law, award or settlement, the
Collective Bargaining Agent should give notice to the employer conveying
its demands. The Legislature provided an opportunity for negotiations
between the Collective Bargaining Agent and the employer through the
intervention of the third party, the Conciliator. When conciliation failed,
the Collective Bargaining Agent was given a right to bring pressure on
the employer through strike notice. The workers could not go on strike
immediately on giving a notice but had to wait for 21 days, providing
sufficient time to the employer to consider the demands of the Collective
Bargaining Agent. After the strike‑notice the conciliation proceedings
were to start again. In case of failure of conciliation proceedings the
Conciliator was to try to persuade the parties to refer their dispute to an
Arbitrator agreed upon by the parties After every method to bring about
a peaceful settlement between the parties had failed, the Collective
Bargaining Agent could go on strike in accordance with the notice of
strike. In case the strike continued for more than 30 days, the Provincial
Government could by order in writing prohibit the strike and forthwith
refer the dispute to the Labour Court. It is noteworthy that the Collective
Bargaining Agent could not on its own in spite of its Demand Notice and
Strike Notice approach the Labour Court for determination of its dispute.
On the other hand, the Collective Bargaining Agent could approach the
Court directly for redress of the grievances of the workmen in respect of
those industrial disputes which arose out of any right guaranteed to
workmen by or under any law or an award or settlement: It is important
to note that even if the procedure prescribed for raising an industrial
dispute was gone into the Collective Bargaining Agent could not
approach the Court directly, except through the Provincial Government.

26. In the present case, some assistance can be derived from the Marginal
Note to section 34 of the Ordinance, which runs as under :‑

"Application to Labour Court."

This is indicative of the intention of the Legislature read along with the
contents of section 34 of the Ordinance that the Collective Bargaining
Agent could apply to the Court directly without taking recourse to the
detailed procedure for raising an industrial dispute. On the face of it,
where certain right is guaranteed under any law, the question of
negotiation through the Conciliator did not arise. The aggrieved party
could go directly to the Court and get the relief to which it was entitled
under any law. Section 47 of the Ordinance, for instance, guaranteed that
conditions of service would remain unchanged while conciliation
proceedings or proceedings are pending before an Arbitrator, a Labour
Court or Tribunal. An employer could not dismiss a workman without
the permission of the Conciliator, the Arbitrator, the Labour Count or the
Tribunal, while any such proceeding was pending before anyone of
them. If there was violation of the guarantees provided under section 47
of the Ordinance, the Collective Bargaining t Agent could approach the
Court under section 34 of the Ordinance without taking recourse to
section 26 or section 28 of the Ordinance. The object of industrial
Relations Ordinance, 1969, is not to create difficulties in the way of the
Collective Bargaining Agent or the workmen to get quick redress of its
grievances.
27. The conclusion that section 34 of the Ordinance is not depended on
the procedure laid down under section 26 and section 28 of the
Ordinance is borne out by subsection (5) of section 35 of the Ordinance. It
runs as under :‑

"(5) A Labour Court shall‑

(a) adjudicate and determine an industrial dispute which has been

referred to it under section 32 or section 33 or relating the a matter in
respect of which an application is made to it under section 34 ;

(b) . . . . .

(c) . . . . .

(d) . . . . .

28. On the one hand, the Court would have jurisdiction to proceed with
an industrial dispute when it is referred to it by the Provincial
Government and on the other hand, it can proceed to adjudicate the
industrial dispute relating to a matter in respect of which an application
is made to it under section 34 of the Ordinance.

29. Mr. Fazeel, the learned Advocate for the Company relied on the case
between Abbas Ali Shah v. WAPDA, Lahore (1970 P L C 376) in support of
his contention that there must exist an industrial dispute before the
Collective Bargaining Agent can move the Court under section 34 of the
Ordinance. That case does not help the learned Advocate as the question
before the Tribunal in that case was as to whether an individual could
move the Court under section 34 of the Ordinance or not. In order that
industrial dispute may exist it must be raised by a Collective Bargaining
Agent and not by an individual workman. At any rate, no Rules have so
far been prescribed for raising an industrial dispute within the meaning
of section 43 of the Ordinance. The procedure prescribed under section
26 or section 28 of the Ordinance is quite different from what may be
prescribed under any of the Rules for raising an industrial dispute
relating to a matter guaranteed under any law. It cannot be said in the
absence of Rules for raising an industrial dispute relating to a matter
guaranteed under any taw that no dispute exists. The case of the
Collective Bargaining Agent under the; application under section 34 of
the Ordinance is that the Company has violated the provisions of section
47 of the Ordinance. Mr. Fazeel also relied on two cases of the Labour
Court of East Pakistan, reported in 1970 P L C 67 and 1971 P L C 58. These
cases are of no assistance as the point raised before me was not in issue
before the learned Court.

30. For the reasons given above, I have come to the conclusion that the
application under section 34 of the Ordinance; as it stood prior to 17th
October 1970, is maintainable.

31. It was contended by Mr. Ali Amjad, the learned Advocate for the
Union, that in case the Court were to hold that section 34 of the
Ordinance, as it stood prior to 17th October 1970, was not applicable, the
application may be treated under the present section as it stands after
the amendment. The amended section 34 reads as under :‑
"Any collective bargaining agent or any employer or workman may apply
to the Labour Court for the enforce ment of any right guaranteed or
secured to it or him by or under any law or any award or settlement."

32. Mr. Fazeel, the learned 'Advocate for the Company relied on a number
of authorities in support of his contention that right to sue cannot be
given retrospective effect ; it is only the procedural right which can be
given retrospective effect. Having held that the application under section
34 of the Ordinance, as it stood prior to 17th October 1973, is maintain
able, it is not necessary to determine the exact scope of the amended
section 34 of the Ordinance.

33. It was next contended that no valid industrial dispute can be said to
have been raised for the following reasons :‑

(1) That the notice under section 26 of the Ordinance contained demands
of financial nature which could not be raised an agreed upon by the
settlement dated 5th December 1969, up to 4th June 1971.

(2) That all the demands under the notice under section 26 of the
Ordinance, except Demands Nos. 4 and 5, were covered by the settlement
dated 5th December 1969 and therefore, could not be raised during the
operation of the settlement, up to 4th June 1971.

(3) That Demands Nos. 4, 5, 14 to 19, in a notice under section 26 of the

Ordinance did not constitute an industrial dispute, as they were not
raised in the prescribed manner.

34. The short answer to these contentions is that the application under
section 34 of the Ordinance is not directed against any of the demands
raised in the notice under section 26 of the Ordinance. The application
relates to the violation of the Provisions of section 47 of the Ordinance. It
may be mentioned that para. 14 of the application does not specifically
refer to section 47 of the Ordinance, but the contents of the same would
disclose that it had reference to section 47 of the Ordinance,

35. It was very strenuously contended by the learned Advocate for the
Company that the Union having amended its Constitution on 20th April
1970, whereby it opened its member, able to more than one
establishment and more than one industry disqualified itself to be legally
constituted body and, therefore it was not entitled to make the
application under section 34 of the Ordinance. Before considering the
contention of the learned Advocate for the Company, it would be useful
to recapitulate certain facts. The amendment of the Constitution took
place on 20th April 1970 subject to the approval by the Registrar, Trade
Unions. The Registrar, Trade Unions refused to accord approval by its
letter dated 25th May 1570 (Exh. A. W. 3/1). The Union held a General
Body Meeting immediately thereafter on 29th May 1970. (Exh. A. W. 3/3).
Exh. A. W. 3/3, is the record of the Proceeding of the General Body
Meeting of the Union dated 29th May 1970. It appears from a perusal of
Exh. A. W. 3/3 that the amendment of the Constitution was not acted
upon and it was further resolved that the amendment should not be
given effect to as the Registrar of Trade Unions had not approved the
same. This fact is supported by the statement of Masood Hasan Jilani (A.
W. 3). The only question that was put to him, in the cross‑examination
was that no General Body Meeting was held on 29th May 1970, That a
General Body Meeting was held on 29th May 1970, is supported by the
statement of S. I. Raza, President of the Union. The factual position
appears to be that the Constitution was sought to be amended subject to
the approval of the Registrar of Trade Unions. The Registrar having
refused the amendment, the General Body withdrew the amendment. At
any rate, there is nothing on the record to show contrary to whet is
recorded in Exh. A. W. 3/3 that the amendment was acted upon.

36. The point that requires consideration is as to whether the mere

amendment of the Constitution of the Union, even though it may not be
proper, would have ipso facto effect of cancelling the registration of the
Union. I am of the opinion that mere amendment of the Constitution
whereby the member ship of the Union was opened to more than one
industry would not operate as cancellation of the registration of the
Union. Industrial Relations Ordinance, 1969, has created various
functionaries, who have to perform their own functions as provided
under the Ordinance. One of the important function aries under the
Ordinance is the Registrar of Trade Unions, who is appointed by the
Provincial Government under section 12 of the Ordinance. His function is
given under section 8 of the Ordinance. When he is satisfied that the
Trade Union has complied with all the requirements of this Ordinance,
the 'Registrar under section 9 of the Ordinance shall register the Trade
Union in a prescribed register and issue a registration certificate in the
prescribed form. Under section 9 of the Ordinance, the Certificate of
Registration would be conclusive evidence that the Trade Union has been
duly registered under the Ordinance. The power to cancel the
registration of the Union has been conferred on the Registrar under
section 10 of the Ordinance. The amended section 10 is more elaborate
and gives more grounds for cancellation of the registration. It reads as
under :‑

"(1) The registration of a Trade Union shall be cancelled if the Labour

Court so directs upon a complaint in writing made by the Registrar that
the Trade Union has

(i) contravened any of the provisions of this Ordinance or the rules ; or

(ii) contravened any of the provisions of its constitution ; or

(iii) made in its constitution any provision which is inconsistent with this
Ordinance or the rules.

(2) Where any person who is disqualified under section 7‑A from being
elected as, or from being, an officer of a Trade Union is elected as an
officer of a registered Trade Union, the registration of that Trade Union
shall be cancelled if the Labour Court, upon a complaint in writing made
in this behalf by the Registrar, so directs."

37. It would appear from the perusal of the above section that the
Legislature has provided an elaborate procedure for cancellation of
registration of the Trade Union. The jurisdiction has been conferred on
the Registrar and on a specific ground on the Labour Court. Under
section 11 of the Ordinance an appeal against a decision given under
section 10 of the Ordinance lies to the Labour Appellate Tribunal. On the
face of it, this Tribunal cannot usurp the function of the Labour Court
and that of the Registrar. The Appellate Tribunal is as much the creation
of the Ordinance as the Labour Court and the Registrar of Trade Unions.
The Tribunal is an Appellate Tribunal under section 11 of the Ordinance
against an order passed under section 10 of the Ordinance or against an
award given by the Labour Court. On appeal in either case the Tribunal
can confirm, reject or modify the decision under sec tion 11 of the
Ordinance or the award under section 37 of the Ordinance. Mr. Ali
Ahmad Fazeel, the learned Advocate for the Company had not shown me
any provision of law under which I could usurp the function of the
Labour Court and the Registrar. I cannot have more power than that has
been conferred on me under the Ordinance. So long as the registra tion is
not cancelled under section 10 of the Ordinance I will go by the
presumption under section 9 of the Ordinance that the Union has been
duly registered. At any rate, it was open to the Union to withdraw the
amendment that it had made on 20th April 1970, in its General Body
Meeting held on 29th May 1970. It was contended on behalf of the
Company that no such General Body Meeting was held on 29th May 1970.
Mere assertion on behalf of the Company is not sufficient to disbelieve he
General Secretary and the President of the Union, who are Supported by
Exh. A. W. 3/3. In that view of the matter, the union cannot be said to be
not a Collective Bargaining Agent on with April 1970, when it moved the
application under section 34 of the Ordinance.

38. The contention of the learned Advocate for the Company was that
there being no provision under the Ordinance for approval of the
Constitution of the Union by the Registrar, the Registrar's refusal did not
confer any right on the Union. In view what I have stated above, this
contention has no force.

39. Mr. Fazeel, the learned Advocate for the Company contended that
there was illegal strike. He took me through the evidence of Mohammad
Shafi, Security Inspector, Abdul Shakoor, Assistant Sub‑Inspector, Chand
Zaheer, Bus Driver, Nazir Ahmad, Bus Driver, Khalid Rashid Siddiq, Chief
Engineer, raved Anjum, Assistant Manager, Mohammad Abdul Jaleel,
Assistant Managing Director, Ghulam Rasool, worker and Sikar Ali Shah,
a worker, in support of his submission that there was an illegal strike on
1st June 1970. In order to appreciate the contention of the learned
Advocate for the Company, it would be useful to reproduce the definition
of strike. It runs as under.‑

"'strike' means a cessation of work by a body of persons employed in any

establishment acting in combination or concerted refusal, or refusal
under a common understanding of any number of persons who are or
have been so employed to continue to work or to accept employment ;"

40. It would appear from the above definition of strike that the main
ingredient is that the cessation of work should be in combination or
under a common understanding. In other words, a body of workers must
stop the work under a common understanding or act in combination
with each other. If an individual workman does not attend the factory, it
will not be come a strike. There must a body of persons who refuse to
attend the factory.
41. Keeping the essential ingredients of strike in view, I would now
proceed to examine the witnesses‑produced by the Company. The most
important witness is Mohammad Shafi. He is working as Security Officer
in the factory. He stated as under :‑

"On 1st June 1970, I was on duty at 7 a.m. When the workers of the night
shift were coming out of the factory at about 7 a.m. they were stopped by
Messrs S. I. Raza and Masood Hasan Jilani. While those who wanted to
get inside for the morning shift were being stopped by them."

42. This is all that Mohammad Shafi stated about what took place on 1st
June 1970. He does not state that a body of workmen joined hands with S.
I. Raza and Masood Hasan Jilani, the President and General' Secretary of
the Union, respectively, and refund to work on 1st June 1970. It is
important to note that Mohammad Shafi, who is the Security Inspector of
the factory, does not state that the other workers had joined S. I. Raza and
Masood Hasan Jilani in stopping the people from going to work.

43. The next important witness is Mohammad Abdul Jaleel. He is

Assistant Managing Director in the Company.

The relevant portion of his statement about strike reads as under :

"On 1‑6‑1970, I had reached the Factory at about 7‑00 a.m. On reaching
the gate, I had seen a gathering of the workers, some of whom were
trying to enter the premises of the Factory while the others were
stopping them. When I had entered the Factory, I had seen some
Policemen there. Outside the Factory gate, I had seen Messrs S, I. Raza
and Masood Gilani. There are 2 buses on hire bringing the workers to the
Factory from Kalaboard and Korangi No. 6 respectively. The workers in
neighbourhood come on their own. The workers who had not reported
on duties on that date were removed from service. I produce the copy of
the notice put on the Notice Board of the Company on 2‑6‑1970 as Exh. R.
W. 6/12. Some of the workers who had struck the work on 1‑6‑1970 had
started reporting for duty, on different dates later on."

44. Three things are clear from his statement. He does not assign any
specific part to S. I. Raza and Masood Hasan Jilani, though they were at
the gate. He also does not give, the names of the workers who were
stopping others to go inside the factory. Thirdly, it is also clear that some
of the workers who had not gone to attend the work on 1‑6‑70, had done
so under pressure, as they had started reporting for duty later on. I
conclude, after reading the evidence of Mohammad Shafi that what
Mohammad Abdul Jaleel means by "some workers" stopping others from
going in the factory is S. I. Raza and Masood Hasan Jilani. Mohammad
Abdul Jaleel does not state that any body of workers in combination or
under a common understanding had ceased to attend to their duties. If
some of the workers did not go to attend to their work under threat of
coercion brought about by S. I. Raza and Masood Hasan Jilani, it would
not mean strike within the meaning of the definition of strike.

45. Another important witness is Abdul Shakoor, Assistant Sub‑Inspector

of Police, who was on duty on the 1st of June 1970. He stated in his
examination‑in‑chief as under :‑
"I had gone to the factory on 1‑6‑1970 at about 6‑30 a.m., I was
accompanied by a Police Party. I had noticed a gathering or workers of
the respondents outside the factory at about 7.00 a.m. I see 2 persons
who are present in the Court now. I know them, i.e. Masood Gilani and S.
I. Raza. The two were standing outside the premises alongwith other
workers and were armed with lathis and dandas."

46. This is all he said about the incident of 1‑6‑1970. He does not state that
any number of persons had refused to work on the 1st of June 1970. The
impression one gets from the statement of the Sub‑inspector is that S. I.
Raza and Masood Hasan Jilani were at the factory to stop people from
going to work. S. I. Raza and Masood Hasan Jilani may have others also
along with them, but one does not know whether those others were
workers of the factory.

47. Khalid Rashid Siddiqi is the Chief, Manager (Produc tion) of the
Company. He stated that on 31st May 1970, S. I. Raza and Masood Hasan
Jilani had walked into his office and had threatened him with knife." It is
noteworthy that Khalid Rashid Siddiqi does dot mention the presence of
Masood Hasan Jilani and S. I. Raza on the 1st of June 1970. when he came
to the factory at about 8 a.m. All that he stated was that the workers were
raising slogans and that some workers were stopping others from going
inside the factory. In cross -examination, he stated that he could not give
the names of any of the workmen, who were stopping others from going
inside the factory. He does not say as to what was the slogan that the
workers were raising. No other witness has stated that the workers were
raising slogans. The statement of Khalid Rashid Siddiqi does not make
out a case of refusal to work under a common understanding.

48. Javed Anjum is the Assistant Manager, Time Office in the Factory. He
was the General Secretary of the rival Union up to 9th June 1970. It is
noteworthy that he did not state that there was any strike on 1st June
1970.

49. Chand Zaheer and Nazir Ahmad are Bus Drivers. It appears from the
statement of Chand Zaheer that S. I. Raza had stopped his bus near
Gulberg Textile Mills and had told the passengers that there was a strike
and that in their own interest they should get down from the bus. He
stated that when he reached the factory, "he told the Security Officer,
namely, Mohammad Shafi that some of the workers had been made to get
down on the way."

50. Similarly, Nazir Ahmad stated that his bus was also stopped on 1st
June 1970 by Raza who told the passengers that there was a strike. The
statement of those two Bus Drivers does not make out any case of strike.
If some of the workers did not go to attend the work under the belief that
there was a strike, it cannot be said that these workers had acted in
combination or under some common understanding not to go to work. If
there was a strike and peace‑loving workers wanted to avoid trouble and
went back home it cannot, be said that they participated in a strike.

51. Sikandar Ali Shah is a worker, who was in the bus of Chand Zaheer,
which was stopped near Gulberg Factory. He stated that on 1st June 1970,
S. I. Raza after stopping the bus said that they were observing a strike
and that the workers should not go to the factory in their own interest.
On his appeal some people had got down from the bus. Sikandar Ali Shah
was at one time the General Secretary of the Labour Union, but was
working as Plant Operator in the Company at the time when he gave his
statement. In the face of it, Sikandar Ali Shah appears to have some
motive in appearing against the Union, as otherwise being at one time
the General Secretary of the Union, would have refrained from making a
statement against S. I. Raza.

52. The last witness is Ghulam Rasool. He is a Junior Assistant in the

Company. He did not depose anything about the incident on 1st June
1970. He stated that on 31st May 1970, S. I. Raza and Masood Hasan Jilani
bad addressed the workers to go on strike on the 1st of June 1970. It is
noteworthy that in cross‑examination, he stand that he had not told
about the speech of S. I. Raza and Masood Hasan Jilani to any officer of
the Company. It is then surprising how lie was produced as a witness for
the Company to report about the speech of S. I. Raza and Masood Jilani.

53. The conclusion one draws from the statements of the various
witnesses who had been produced by the Company is that S. I. Raza and
Masood Hasan Jilani, who had been dismissed by the Company on 30th
May 1970, were trying to bring about a strike on 1st June 1970. It does not
appear from the statement of the witnesses that they had succeeded in
their effort. The workers were coming to the factory to perform their
duties. S. I. Raza and Masood Hasan Jilani at the factory gate had
threatened some of, the workers not to go inside the factory and S. I. Raza
persuaded some workers, who were in two buses that they should go
back to their houses as there was a strike at the factory. This to my mind
does not make out a case that the workers, who went away to their
houses, went with the intention of joining the strike. They would have
gone to the factory had not S. I. Raza stopped their buses and given them
a wrong impression of the happenings at the factory. That these workers
had gone back to their houses only to avoid trouble for themselves, is
supported by the statement of Mohammad Abdul Jaleel, Assistant
Managing Director of the Company, who stated is his
examination‑in‑chief that, "some of the workers, who had struck work on
1st June 1970, had started reporting for duty on different dates later on."

54. I have, for the reasons given above, come to the conclusion that there,
was no strike legal or illegal within the definition given under section
2(xxv) of the Ordinance.

55. The question now is as to whether there was any lock out by the
Company. Lock‑out is defined under section 2(xvii) 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
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."

56. On an analysis of the definition, it would appear that the main

ingredients of lock‑out are
(1) Closing of a place of employment or part of such place ;
Or

(2) Suspension, wholly or partly, of work by an employer

Or

(3) refusal to employ any number of workmen employed by him;

Or

(4) such closing, suspension or refusal must occur in connection with an

industrial dispute ;
Or

(5) such closing, suspension or refusal is intended for the purpose of

compelling workmen employed to accept certain terms or conditions
affecting employment.

57. On behalf of the Union three witnesses have been examined namely,
S. I. Raza, Masood Hasan Jilani and Shamim Asghar. S. I. Raza stated as
under :‑

"About 167 workers, who were refused admission into the factory
premises on 1st June 1970, and thereafter have not b; en allowed to join
their duties till today. To my knowledge about 127 workers have not been
served with any charge‑sheet or dismissal letter at all."

58. On the face of it, S. I. Raza does not say as to why the Company had
refused admission to the workers into the factory. He does not say that it
was because of some industrial dispute or because the Company wanted
to force these workers to accept some terms affecting their employment.

59. Masood Hasan Jilani stated as under :‑

"The persons who had been locked‑out on the 1st are 159 in number. I
produce the list as Exh. A. W. 3/2. Apart from these 159 workers, the
services of 8 other workmen had been terminated on 30th May or
thereafter."

60. It is noteworthy that what Jilani means by lock‑out is termination of

service by the Company, At any rate, Jilani does not state that the
Company bad locked‑out 159 persons with a view to force them to accept
some terms affe,ting their employ ment or in connection with an
industrial dispute.

61. The last witness is Shamim Asghar. He is the Plant Operator. He

speaks about himself alone. He stated that when he went on the 2nd of
June 1970, he wanted to join in the Night Shift, but was not allowed by
the Security Inspector. He was, however, offered by the Security
Inspector to go inside only if he stopped his Union activities.

62. On the face of it, none of the three witnesses for the Union
established, even remotely, the ingredients of lock‑out.
63. Mr. Ali Amjad, the learned Advocate for the Union, however, very
strenuously contended that the Company having failed to reply to a letter
sent by Shamim Asghar on behalf of 66 workers, the Court should
presume that the Company had locked‑out these workmen. It is stated in
the letter that the "undersigned workers had been reporting for duty on
1st and 2nd, but that they had been refused admission in the factory and
that they had been threatened that they will be beaten, if they were to
enter the factory." It is stated that this means a lock out. The contention
of Mr. Ali Amjad is that the Company having received the letter, they
should have replied the letter and should have told the workers that,
they were not being locked out. There is not much force in this
contention. In the first place, the letter which is on the record of the case,
does not give any address to which the reply, if any, should have been
sent. In the second place, the question is as to whether this letter was
received by the Manager of the Company. On behalf of the Company, the
receipt of this letter has been denied. Shamim Asghar in
examination‑in‑chief admitted that the Acknowledge ment Due Receipt
had been lost by him. He had, however, produced a copy of the
Acknowledgement Due Card from the Post Office. He has also produced
the Registration Receipt of the letter. The only presumption that can be
drawn is that a letter was sent to the Company. There is no presumption
as to the contents of the letter. The letter that had been produced by
Shamim Asghar is on the record. Names of 66 persons are given in this
letter. It is signed by 28 or 29 persons and the rest have thumb‑impressed
the letter. Shamim Asghar, on the other hand, stated that he had got it
signed by about 67 workers. There is a great difference between the
signature and thumb-impression. Shamim Asghar is a literate person. He
had himself-drafted the letter. He should know the difference between
signature and thumb‑impression. However, even if the letter was
received by the Management, it was not incumbent on them to send a
reply to the same in the absence of any address given in the letter. The
Company had already pasted a General Notice on the Notice Board on
2nd June 1970 that "the workers were directed to resume duty
immediately or submit their explanations within 48 hours of the receipt
of this general notice, failing which the Management would take
necessary disciplinary action according to law."

64. In the face of this notice, it was not necessary to reply to the letter,
which had no address. The Notice Board admittedly is outside the factory.
If the workers, who are said to have signed the letter had been visiting
the factory, they must have seen the General Notice on the Board. At least
some of the workers, who were literate, must have read it. In these
circumstances, I cannot conclude the existence of lock‑out by the mere
fact that the letter, Exh. A. W. 2/2 was sent to the Manager (Personnel) of
the Company.

65. It is noteworthy that none of the workmen, who are said to have been
locked‑out by the employer, have been examined, except Shamim
Asghar, who stated that when re went on 2nd June 1970 to the factory, he
was not allowed to work by the Security Inspector. He does not state
about the other workmen who are said to have been locked‑out. At any
rate, Shamim Asghar also does not depose that the Management bad
locked‑out some of the workers in order to compel them to accept certain
terms and conditions affecting their employment or that they had been
stopped to work because some industrial dispute was pending. I would
hold that there was no lock‑out, as alleged by the Union.

66. The question that now requires consideration is as whether the

retrenchment of some of the employees by the Management was
colourable and main fide. A reference para. 5 of the application under
section 34 of the Ordinance dated 20th June 1970 would disclose that the
Management during the pendency of conciliation proceedings
terminated the services of Masood Hasan Jilani and S. I. Raza, who are
the General Secretary and the President of the Union, respectively. The
letters terminating their services had been attached to the petition,
marked 'D' and 'E'. These letters state that their services were being
terminated as a result of re‑organization with effect from 1st Jane 1970.
Under para. 6 of the application, it is alleged that the Company
terminated the services of some more persons, whose list is given in
Schedule I to the Petition. Schedule I gives the names of 9 persons,
including S. I. Raza and Masood Hasan Jilani. It is noteworthy that the
application does not disclose the reason why the services of other
persons, beside Raza and Jilani who are mentioned in Schedule I, had
been terminated by the Management, except that their services were
terminated during the pendency of conciliation proceeding. A reference
to the reply by the Management dated 10th August 1970, would show that
the services of these 9 parsons were dispensed with as a result of
re‑organization. The Management took the stand that no conciliation
proceedings were deemed to have been pending because the notice
under section 26 of the Ordinance was bad in law. The fact that the
conciliation proceedings were pending at the time when the services of
these 9 parsons were terminated has not been denied.

67. The case of the Union, as made out in the application was that no
officer of a registered Trade Union shall be dismissed discharged or
otherwise punished during the pendency of the conciliation proceedings
without the permission of the Conciliator. Similarly, it was alleged in
para. 6(ii) of application under section 34 of the Ordinance that no
workman could be discharged daring the pendency of conciliation
proceedings without the permission of the Conciliator.

68. Mr. Ali Ahmad Fazeel, the learned Advocate for the Company
contended that the services of 9 workmen mentioned in Schedule I were
dispensed with as a result of bona fide reorganization by the Company. In
this connection, the learned Advocate contended that the reorganization
of the services of the Company was in contemplation ever since 1968. He
referred to Exh. R. W. 6/11, which is a notice by the Managing Director,
dated 29th October 1968. The relevant portion reads as under :‑

"The Union should be explained clearly (and I have explained to their

officials already) that the total strength should be brought down to an
economic level and overtime brought down very substantially. I have
already requested the General Manager to work out in collaboration with
Dr. Barth the permanent strength of the sty (under normal circumstances
prevailing after the frequent mechanical break‑downs have been
eliminated."
69. The learned Advocate next referred to Exh. R‑9, dated 14th March
1969. This is a letter by the General Manager to the President of the
Union. The General Manager requested the president of the Union to
agree to a number of proposals including retrenchment of staff
whenever it was considered necessary by the Management. The General
Secretary by a letter of the same date, Exh. R‑8, addressed to the General
Manager, agreed to the proposal regarding retrenchment.

70. The first phase of retrenchment took place on 4th December 1969. as
it appears from Exh. R‑10. The number of persons in various categories
of service were to be retrenched on the principle of first‑come‑last‑go are
mentioned is Exh. R‑10. This retrenchment was to take effect from 8th
December 1969. There is nothing on the record to show that the Union
objected to bona fide retrenchment on the part of the Company. The
second phase of retrenchment was proposed on 22nd March 1970, which
is Exh. R. W. 6/8 by some one whose resignation is not given therein to be
General Manager. The relevant para. of the said proposal, which affects
the 9 employees, who have been retrenched, runs as under :‑

"All supervisory posts will be abolished with effect from 1st June 1970. All
members of supervisory staff, who are not given an appointment to a
managerial post, including Foreman and Jamadars, will be given one
month's notice of termination of service."

71. I have come to the conclusion for two‑fold reasons that the
reorganization schemes by the Management was a bona fide one. In the
first pace, the scheme was in contemplation of the Management ever
since 1968 and the Union had agreed to it presumably because the Union
thought that it was a reasonable one. In the second police, the second
phase of re-organization was thought of as late as 22nd March 1970. i.e.
much before the notice under section 26 of the Ordinance was given by
the Union to the Company.

72. The question, however, is as to whether the scheme had been mala
fide made use of is order to terminate the services of 9 persons, who are
mentioned in Schedule 1 of the application. This is action of fact, which
has to be determined on the evidence led by the parties.

73. I will take up the case of S. I. Raza, the President and that of Masood
Hasan Jilani, General Secretary of the Union together. The learned
Labour Court has come to the conclusion m respect of these two workers
that it was a colourable exercise of power by the Company and that their
services were dispensed with ulterior motive. So far as the other 7
persons are concerned, the finding reads as under :‑

"There is no evidence about the other 8 persona affected by the

re‑organization. It also cannot be said that there were others junior to
them. No interference is called for in their case. So far as S. I. Raza and
Masood Hassan Jilani are concerned patently they were thrown out with
ulterior motive."

74. It may be mentioned here that there is a mistake in the order of the
learned Labour Court about the number of persons affected by the
re‑organization, besides Raza and Jilani. According to Schedule I to the
application only 9 persons were discharged as a result of mala fide
re‑organization Therefore, the number of persons besides Raza and Jilani
will be only 7, and not 8, as mentioned in the order. The circum stances,
which I would presently mention regarding the retrench ment of S. I.
Raza acid Masood Hasan Jilani are such which leads one to one
conclusion that the Management dispensed with the services of these two
persons under the colourable exercise of the power of retrenchment. In
the first place, it would appear that S. I. Raza and Masood Hassan Jilani
are not covered by the scheme of re‑organization. It appears from their
statement that they were not Supervisors. S. I. Raza stated that his duty
was "to prepare reports on the daily clearance condition of the plant, to
get machinery spares, repair or manufacture from the local market, if
not available from Shershah Market." He was also given clerical work. He
was not cross‑examined, as to the duty that he used to perform in order
to bring his case within the general scheme of retrenchment of
Supervisors. Similarly, Masood Hasan Jilani stated that his duties were
"analysing the samples and making the reports about the same". He was
also not cross‑examined so as to show that he was performing any
Supervisory duty. It is also important to note that according to Exh. R‑7/A,
the Union and the Manage ment had agreed that the permanent
establishment was to be worked out by the Management and the
workmen were to be placed in their respective Scales of Pay by 30th
April 1969. Mr. Ali Amjad, the learned Advocate for the Union also relied
on the statement of Mohammad Abdul Jaleel, who admitted that the
production of the Company had gone up. His suggestion was that if the
production had gone up, there was no necessity for re trenchment. I,
however, do not agree with this contention if the production had gone
up, the number of people to the retrenched could be reduced in
proportion to the need of the Company. S. I. Raza and Masood Hasan
Jilani are active members of the Union. The Demand Notice and the
Strike Notice were given prior to their retrenchment. This is also a
circumstance in favour of these two persons that the company did not
retrench them bona fide. At any rate, the cases of S.I. Raza and Masood
Hasan Jilani are clearly covered by section 47 of the Ordinance. The
admitted position is that conciliation proceeding was fixed for 2nd June
1970. They two persons are officers of a registered Trade Union. Thee
could not be discharged during the pendency of the conciliation
proceedings without permission of the Conciliator. This is a very
valuable protection afforded to an officer of a registered Trade Union.
This has been clearly violated. It was, no doubt, contended by Mr. Fazeel
that no conciliation proceedings could be deemed to be in existence
because the notice under section 26 of the Ordinance was bad in law and
that the Union could not raise the dispute which it already had raised in
1969. This submission has no force. The Company had submitted to the
jurisdiction of the Conciliator earlier and it would have attended the
meeting tired for 2nd June 1970 but for the aligned strike. The Company
had written a letter to the Conciliator that because of the strike, there
way no use to attend the meeting, which was fixed for 2nd June 1970. In
fact, conciliation proceeding was to existence. Therefore, the Company
should have observed the procedure prescribed under section 47 of the
Ordinance before discharging the President and the General Secretary of
the Union.

75. So far as the other 7 workmen, who are mentioned in Schedule I to

the application, are concerned, in the absence of any specific evidence it
is difficult to hold that they were the victim of any colourable exercise of
power on behalf of the Management. The case of Shamim Asghar is also
covered by the principle laid down under section 47 of the Ordinance.
He had appeared before the learned Court and stated in
examination‑in‑chief that he was a member of the Executive Committee.
That he was a member of the Executive Committee, has not been
challenged in cross‑examination. His services, therefore, also could not
be dispensed with by the Management without complying with the
provisions of section 47 of the Ordinance. He is an officer of the Trade
Union within the meaning of the definition given in the Ordinance.

76. S. I. Raza, Masood Hasan Jilani and Shamim Asghar, who appeared
for the Union, did not state that any of the other 7 persons was an officer
of the Union or that their case was not covered by the re‑organization
scheme dated 22nd March 1970. Mr. Ali Amjad, the learned Advocate for
the Union, contended that the burden lay on the Management to prove
that they acted bona fide. There is not much force in this contention. The
Management, on the evidence led by it, did make out a case for
retrenchment. The burden of proof lies on the person who would lose if
no evidence was led. It was for the Union to establish or at least to make
out a prima facie case that the Management acted mala fide in termina
ting the services of the other 7 persons. None of the 7 persons appeared
before the Court to state that the Management acted mala fide in
terminating their services. The case of the said 7 persons is not covered
by the provisions of section 47 of the Ordinance. In this connection,
reference may be made to the case of Pakistan Petroleum Workers'
Federation Karachi (P L D 1961 S C 479). In that case their Lordships of
the Supreme Court of Pakistan held that certain Motor Drivers, who were
discharged as a result of bona fide re‑organization during the pendency
of an industrial dispute their discharge was not affected by section 331 of
the Industrial Disputes Act, 1947, which is almost similar, to the
provisions of section 47 of the Ordinance. In the present case also these
workmen cannot be said to have been discharged for misconduct
connected with the industrial dispute, which was the subject‑matter of
negotiations before the Conciliator.

77. For the reasons given above, I would dismiss Appeal No. KAR‑371 of
1971.

78. According to Masood Hasan Jilani, the total number of persons who
had been dismissed from service comes to 167,

including 8 persons who are mentioned in Schedule I to the application.

The witness had filed a list of the persons, who, according to him, were
locked‑out. It is Exh. A. W. 3/2. On the other hand, according to
Mohammad Abdul Jalil Assistant Managing Director of the Company the
number of workmen, who lost their jobs, comes to 138. He produced Exh.
R. W. 6/14, which contains the list of the workmen who lost their jobs.
This, of course, does not include the names of persons, who were
discharged as a result of re‑organization. There is thus a difference
between the version of Muhammad Abdul Jalil and Masood Hasan Jilani,
According to the former only 138 workmen lost their jobs, while
according to the latter 159 workmen lost their jobs. Only one question
seems to have been put in cross‑examination to Mohammad Abdul Jaleel
in respect of Exh. R. W. 6/14. The answer runs as under :‑

"I do not think any charge‑sheet was issued against any one of the
workmen mentioned in Exh. R. W. 6/14."
79. I would, however, accept the list of persons, who were dismissed
from service, given by Masood Hasan Jilani, as he has not been
cross‑examined in respect of the list given by him. If the list given by
Masood Hasan Jilani contains names of workmen, who had been in the
service of the Company, but have not been dismissed, the Company will
not be prejudiced. I will, therefore, proceed on the assumption that 159
workmen were dismissed from service, besides 9 workmen, whose
services had been terminated on account of reorganization, as
mentioned in Schedule I. to the application. The admitted position is that
no charge‑sheet was issued against 138 workmen, who are mentioned in
Exh. R. W. 6/14, According to Mohammad Abdul Jaleel, some workmen
had, in response to the charge‑sheets, submitted their explanations, but it
seems that no regular enquiry was held against them also. Their
explanations were found to be unsatisfactory and they were dismissed
from service.

80. It is now well‑settled principle of law that no one can be condemned

without being heard. Standing Orders also prescribe procedure for
enquiry against a person, who is changed fore any misconduct. It is not
the case of the Company that any enquiry, much less a regular enquiry,
was held against the 15 workmen, who are mentioned in the list given by
the Genera Secretary of the Union. There being violation of the principles
of ‑natural justice and total disregard of the Standing Orders, the
termination of services of 159 persons is bad in law: They are entitled to
re‑instatement.

81. The next question is as to whether these workmen are entitled to

back benefits their re-instatement. The order of dismissal against these
159 workmen is being set aside on the ground not that these workmen
are not guilty of any misconduct, but that the employer has failed to
observe the principles of natural justice and the provisions of the
Standing Orders in regard to enquiry. In that view of the back benefits
that the workmen may be entitled to get will depend upon the result of
the enquiry by the Company to be not guilty will be entitled to full back
benefits. In this connection, it would be useful to reproduce a certain
passage from the judgment of the Supreme Court of Pakistan an Glaxo
Laboratories (Pakistan) Ltd. (1962 P L C 362). It runs as under :‑

"The rights of a workman are, by no means, improved by ‑'misconduct"

of which he may be guilty and for which he may be liable to be dismissed
by the Company after due enquiry. If a direction is given for
re‑instatement of such a workman on account of want of due enquiry
preceding his dismissal, it does not destroy the right of the Company
after re‑instatement, to proceed against him, in accordance with the
mode permitted by law."

82. It would be unfair to penalize the Company to pay back benefits

without giving it an opportunity to hold an enquiry against the
workmen, who, according to it, bad com mitted misconduct. The Union,
however, must be compensated for coming to the Court for redress on
behalf of these workmen. But for the efforts of the Union, the workmen
could not have been re‑instated and got an opportunity to be heard
against the charges that may be levelled against them by the Company. I
would award costs of Rs. 3;000.00 (Rupees three thousand only) to the
Union. This is to be paid within two weeks.

83. Of the 159 workmen, who have been dismissed without proper
enquiry, a distinction must be made between those workmen against
whom the Company can legitimately hold an enquiry and against others,
who, according to my finding, cannot be held to be guilty of misconduct.
Mohammad Abdul Jaleel. Assistant Managing Director of the Company,
has produced a list, Exh. R. W. 6/14. According to this list 101 workmen
were dismissed from service because they were absent from duty for
more than 14 days, twenty‑four workman were dismissed because they
took part in an illegal strike and were also absent from duty for more
than 10 days and 13 workmen were dismissed from service on the
ground that they took part in an illegal strike. It will be futile to permit
the Company to hold an enquiry against 13 workmen mentioned in Exh.
R. W. 6/14, who had been dismissed because they took part in an illegal
strike. In view of my finding that there was no strike and, therefore, the
question of illegal strike does not arise. At this stage, it would be
necessary to clarify as to whether the Union has claimed any relief in
respect of all these 13 workmen. The Union in its application under
section 34 of the Ordinance has asked for relief in respect of only 38
workmen mentioned in Schedules I and II to the application. The list Exh.
A. W. 3/2, produced by Masood Hasan Jilani, General Secretary of the
Union, stating the number of workmen, who have been dismissed from
service comes to 159 workmen. This list, of course, does not include the
names of those 9 workmen, who are mentioned in Schedule I to the
application. The Union would, therefore, be entitled, with all the judicial
discretion that. I have given in its favour, to the relief in respect of only
159 workmen, whose names are given Exh. A. W. 3/2. I have checked the
names of 13 given in Exh. R. W. 6/14, produced by Mohammad Jaleel,
Assistant Managing Director, with that of Exh. A. W. produced by the
General Secretary of the Union, I find the 13 workmen, who have been
dismissed from because they took part in an illegal strike, only workmen
appear in Exh. A. W. 3/2. It appears to me shat Union does not claim any
relief in respect of 3 workmen. The workmen whose names appear in
Exh. A. W 3/2. are following : ‑‑

(1) Ayub Khan Jamadar.

(2) Mohammad Sabur Attendant.
(3) Khalid Alvi Fitter.
(4) Shamsul Haq Fitter.
(5) Mohammad Amin Helper.
(6) Ahmadullah Khan JPO.
(7) Mohammad Yousuf JPO.
(8) Ehsanul Haq Helper.
(9) Nisar Mehdi Ali Fitter, and
(10) Akhtar Baig Helper.

84. The names of (1) Mohammad Jameel, J. P. Siraj‑ul Muneer, Assistant

Store Keeper, and (3) Abdul Fitter, do not appear in the list Exh. A. W. 3/2.
The therefore, is not entitled to any relief in respect of these workmen,
who are not mentioned in Exh. A. W. 3/2.
85. There are workmen, who have been charge‑sheeted by the Company
for an illegal strike and for being absent from duty for more than 10
days. The Company cannot be permitted charge‑sheet these workmen for
an illegal strike. It can, however, hold an enquiry against them for being
absent from duty for more than 10 days.

86. In the result, the award of tae learned Chairman of the Labour Court
is maintained in respect of S. I. Raza and MasoodHasan Jilani and is
modified to this extent that 159 work men, mentioned in Exh. A. W. 3/2,
would be re‑instated forthwith, but of these 159 workmen, only 11
workman, namely, (1) Shamim Asghar, (2) Ayub Khan, (3) Mohammad
Sabur, (4) Khalid Alvi, (5) Shmsul Haq, (6) Mohammad Amin, (7)
Ahmadullah Khan, (8) Mohammad Yousuf, (9) Ehsanul Haq, (10) Nisar
Mehdi Ali, end (11) Akhtar Baig, would be entitled to full benefits on their
re‑instatement, as the Company is not hold an enquiry against them. So
far as the rest are concerned, the back benefits and other emoluments
depend upon the result of the enquiry that the Management hold against
them. If the workmen are found to be not they would be entitled to full
back benefits.

87. If the Company does not start enquiry against the workmen
mentioned in Exh. A. W. 3/2, who had been dismissed by it; within three
weeks, the workmen will be entitled to full back benefits and no further
3 enquiry can be held against them. The Company pay Rs. 3,000.00
(Rupees thousand only) as costs, as already observed, to the Union within
two weeks.

88. For the reasons that I have already given, Appeal No. KAR‑371 of
1971, is dismissed.
;