1972 PLP 388 (PLC)

(a) The incident of 20th January 1971, was not a more censor of work. It was an illegal strike resorted to by the workmen without adopting the procedure laid down for it. (b) At no time did the respondent‑Management refuse to take the workmen back on work. In fact 1800 and odd workers of the mill had gone on strike and the Management took as many of them as chose to resume work and it is only in the case of those workers who continued to be on strike after 27th and 28th of January 1971, that the Manage ment issued charge‑sheets and ultimately dismissed them. (c) If it had been a fact that the respondent‑Management had not allowed the workmen to resume work on 27th January 1971, the workers would have certainly come to this Court immediately, thereafter, on that cause. The workers in this case whose cause has been espoused by the Union did not bring it in writing to the notice of any authority that the Management was insisting upon the workers to tender apology and hence this Court may hold that the Management did not attach any condition. (d) The Management bad sent charge‑sheets to the workmen concerned under registered post arid also under postal certificate and hence it has to be presumed that the charge‑sheets had been received by the workmen. (e) Even if it is granted that the enquiry is not proper this Court is not competent to give any relief to the workmen because in that case the workmen have to observe the grievance procedure and then come to this Court either individually or through the collective bargaining agent. The concerned workers knew at least in the month of February 1971, that they had been dismissed and in this application which was filed on 6th April 1971, by the applicant‑Union the act of dismissal of the workmen has been suppressed. (f) This Court is not competent to grant the relief prayed for by the applicants because it has not arisen out of an industrial dispute or under any award or settlement or any law. The above contentions raise following points for determina tion of the application: (1) Did the Management stop the workmen from work unless they tendered apology? (2) Did the workmen struck work illegally? (3) Is this Court competent to go into the dismissal of the individual workmen in this application? From the side of the applicants the workmen have filed affidavits to the effect that when they went to work the Management required them to tender an apology and on their refusal to do so they refused to give job. In addition Mr. S. P. Lodhi has taken support from the statement of Mr. Shafiq Ahmad Khan, S. D. M., Harbour. In the cross‑examina tion the learned S. D. M. stated that the workers had told him that the Management was demanding apology for taking part in the illegal strike and that he had asked them to give apology because their strike was illegal. On the side of the respondents Mr. M. A. Khan has referred me to the statement of workers Qasim Jan and Painda Khan in cross‑examination to the effect that a hen they went to work on 27th January 1971, no one asked them to put their thumb‑mark on any statement or paper. In addition he takes support from the affidavit filed by General Manager Mohammad Ehtesham that he did not prevent any one from resuming work. Labour Officer Rabat Ali, Head Gate Jamadar Bukhtiaruddin and Incharge Time Office Birjees Ahmad Siddiqi have also filed affidavits to the effect that all the workmen who reported for duty were taken back on the job without any condition. According to Mr. M. A. Khan the statement of Mr. Shafiq Ahmad Khan the then S. D. M., Harbour that the workers complained to him about the demand of the apology letters could not be attached any weight because the fact was not verified by the learned S. D. M. himself and it may be that those workmen who wanted to continue to be on strike might have told him falsely. I am of the opinion that the plea of apology letters is not sustainable for the following reasons :‑ (a) It was not taken in the application under section 34 which was presented to this Court as late as on 6th April 1971. (b) The workmen did not come to this Court or contacted any authority concerned in writing in this regard. This is not a case where an individual workman is prosecuting his remedy. Here the matter is being perused by the collective bargaining agent. Further the Union who is the collective bargaining agent could have certainly produced some of the workers who continue to work in the mill to say that they had been allowed to resume work only after tendering apology. The plea of apology letters therefore, is not correct and in this view of matter I have to hold that it was not the Manage ment who prevented the workmen to resume work. I may add that the statement of Mr. Shafiq Ahmad Khan, S. D. M., Harbour also shows that all the workers had not agreed to join 'work. The relevant portion of this statement is as follows :‑ "One group did not agree to the terms of the agreement. Other group wanted to resume work. Mr. Usman Baloch representing the Labour Union represented this position to me and informed me that any worker may resume work at his own choice. Some workers went to resume work. They were prevented by the other group from going in." (2) In the above view of matter it follows that all the work men did not go to resume work and that they had taken recourse to the strike since 20th January 1971 and that they continued to be on strike after 27th January 1971. For this view no evidence is required because it is in the application presented by the applicants itself that the workmen of the mills wanton spontaneous strike. At the time of arguments Mr. S. P. Lodhi contended that this cessation of work was not a result of any preconceived plan and, therefore, it may not be termed as a strike. Strike is defined in the I. R. O., 1969 as follows :‑ "Strike' means a cessation of cork by a body of persons employed in any establishment acting in combination or con certed refusal or refusal under a common understanding of any number of persons who ate or have been so employed to continue to work or to accept employment." It would thus appear that the contention of Mr. S. P. Lodhi that the incitement caused by the outsiders worked as a catalytic agent has no relevance. In this case what has happened is that a group of workers has refused to work under a common understanding. Common understanding is, apparent from the plea of the workers that the behaviour of the respondent Management was causing ill‑feeling amongst the workmen. I have, therefore to hold that this is a case of strike. Admittedly no notice of strike was given and hence the strike was illegal. From the findings on the above points I arrive at the conclusion that there was no lock‑out by the Management and the workers had taken recourse to the strike which was illegal. (3) Now I pass on to the 3rd point whether this Court is competent to go into the dismissal of an individual workman. The contention of Mr. S. P. Lodhi is that workman did not know about his dismissal when this application had been filed. He adds that at least an individual worker did not know about the dismissal before this application was filed in this Court. To meat this situation Mr. M. A. Khan takes me through the application under section 34 flied by the applicants. Para. 12 reads as under :‑ "That the employers‑respondents are reported to have Issued so‑called charge‑sheets and by staging drama of so‑called enquiry given their action the cover of dismissal from service but in fact the same is lock‑out and unlawful and unwarranted denial or right of employment which is guaranteed and secured to the workmen." Then he takes me through the affidavits filed by workmen Abdul Haleem etc. It appears from these affidavits that the workers had come to know about the dismissal a few days after 27th January 1971. Again it is the statement of Mr. Bakar Ali Khan, Deputy Director Labour that the workers pressed for the re‑instatement of 80 workers who had been dismissed for resorting to illegal strike by the Management. I have, therefore, to hold that the workers had coma to know about their dismissal long before they filed this application under section 34 in this Court. I may clarify that by the word workmen I mean those workmen who actually took part in the strike and have been dismissed for their part in the strike. Amongst the applicants names of workmen Sardar, Israrul Haq, Gul Muhammad, Amir Rehman, Waheed Manion, Shaheen, Rasheed Khan, Muhammad Ayaz, Rashidullah, Nisar Gul, Fazal Karim, Shamsher Qulender, Munawar. Bukhtipur Khan and Shamshad also appear and it is admitted before me by Mr. M. A. Khan that the Management has not dismissed them. Then there are cases of workmen Muhammad Khan, Muhammad Jan, Muhammad Rehman, Abdul Haleem, Behran, Shah Gulanber, Qasim Jan and Painda Khan who were either not present on the day of the strike or had come to attend the work on 27th January 1971. It is the case of the Management itself that they have taken back on duty all the workmen who reported for duty on 27th January 1971 or 28th January 1971. I am, therefore, of the opinion that the dismissal of these workman is not based on their alleged part in the strike of 20th January 1971 and since that is the only charge in the charge‑sheet their dismissal cannot be sustained. I will, therefore, order the re‑instatement of these 24 workman. As regards back benefits the Management had offered to take back the first group in the month of March before Mr. Baqar Ali Khan, Deputy Director, Labour Welfare and again in this Court in April 1971. I will, therefore, allow them wages for the period of two months. Their absence shall be treated as leave without pay. So far as remaining 8 workmen are concerned I have ordered their re‑instatement in view of the statement of the Management that they had taken back on duty all the workers who reported for duty on 27th January 1.971. Instead of allowing them back benefits for the entire period of unemployment I will allow them wages for two months. Their absence shall also be treated as leave without pay. As regards other workmen included in the applica tion I am not satisfied that they were prevented from performing their duties by the Management. They are, there fore, entitled to legal dues only. As to the prayer that they may be held to be in the employment of the respondents it cannot be allowed because the Management claims to have dismissed or terminated them from service. For the same reason their prayer for directing the Management for negotiation with the Union as regard the wages for the strike period cannot be granted. Parties will bear their own costs.