1973 PLP 104 (PLC)

7. The operative portion of the order of the learned Court reads as under:- "Since evidence has come on record to show that the respondents had locked out the workers without any notice or without recourse to legal procedure, the affected employees are entitled to be re-instated with immediate effect."

8. The order, it may be said at once, is not quite clear. Does the order mean that all the 28 persons, who were alleged to have been locked out, are to be re-instated or only those who appeared before the Court, i.e. 18 persons? On the face of it, those who did not appear before the Court would not be entitled to re-Instatement. Mr. Riaz Bokhari, the General Secretary of the Union, it appears from the record was not cross-examined. There is nothing in the Order Sheet to show why he was not produced for cross-examination by the Union.

9. Mr. Kadir Bakhsh Bhutto, the learned Advocate, who appeared for the appellant, contended in the first place that the Written Arguments were filed in December 1970 and 27th March 1971 was fixed for orders. The order, however, was pronounced on 28th February 1972. Die learned Advocate contended that this long delay of about a year vitiates the award. There is no fore in this contention. In the first place, the Court being over-worked could not dispose of the application earlier. In the second place, the learned Advocate was entitled to urge all the points before the that he could urge before the learned Chairman of the Labour Court. I have allowed him to do so.

10. In the second place, the learned Advocate contended that the Union could not be granted relief for which it did not pray. In short, the contention of Mr. Bhutto was that In the absence of any plea of lock-out in the application under section 34 of the Ordinance, the learned Court had acted with out jurisdiction In granting the relief for re-instatement to the employees. , Them is much force in this contention. On a perusal of the application, which I have already reproduced in para. 1 of my order, it would appear that the case of the Union was that the Management was not complying with the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance. 1968 and that it should be ordered to comply with the same. There is no allegation of lock-out on the part of the Management and therefore, the question of re-instatement of workmen did not arise.

11. In the third place, it was contended that the Union had failed to make out a case of lock-out. In this connection, it was urged that had the Management locked out its workers on 19th December 1969, as alleged by the Union, the Union would have approached the Labour Directorate or at any rate, would have disclosed this fact prominently in its application of 31st December 1969. It is further stated that the plea of lock-out Is only an afterthought. What actually happened was that there was quarrel between two groups of workmen on 19th December 1969, which resulted in criminal case under sections 107 and 117 of the Cr. P. C. The police bad arrested some of the workmen ton the same day, i.e. on 19th December 1969. The Hotel 'remained closed for 3 days. Many of the workmen because of this trouble and police interference did not like to work. The plea of lock-out appears to be only an after thought. According to A. W. 18, Saeed who was Second Cook in Cafe Millet, Seth had slapped one Shahji and picked up a quarrel with him After half an hour of this quarrel the police came and arrested some of the workmen. As some of the work men had been arrested naturally they could not attend to their work. It cannot be, therefore, said that those workmen, who were arrested and could not come to the work, had been locked- out by the Management.

12. The case made out by 17 of the workmen in their affidavits, as would appear from paras. 1 to 7, which is common to all the affidavits of 17 witnesses, that the Management had locked them out because they had become members of the Union. The relevant paragraphs run as under:- "(1) That I was employed in the Establishment of Caf Millat, Liaquatabad, Karachi as. . . . . . . . . since . . . . . and am a member of the Karachi Hotel Workers' Union, Karachi since seven months. (2) That annoyed and displeased the Management did not take me on work from 19th December 1969 though I was entitl ed to be taken on my duty."

13. The other statement which is common to all the 17 affidavits of the workmen is as under:- "That the Hotel Management did not take me on duty and so capriciously and in fact instituted a false case in police and which is now subjudice before the Magistrate."

14. It is clear from the above statement of 17 persons that they were all involved in police cases by the Management. In fact they were implicated in Criminal cases by the Management. It would not be unreasonable to infer that they did not come to work on their own. On the other hand, it does not appear from the affidavit of Mr. Riaz Bokhari, dated 11th March 1970, that the Management had locked-out 28 workmen not because they were members of the Union or because of the quarrel, which took place on 19th December 1969. The affidavit of Mr. Bokhari dated 11th March 1970 does not disclose any particular reason for lock-out on 19th December 1969. The relevant paragraphs of the affidavit are 5 and

6. They run as under:- "That as per the term of the settlement dated the 27th November 1969, which is in force it was undertaken that no worker will be victimized on account of strike and they will be permitted to resume work. That the twenty-eight workmen who were the workmen concerned and have the protection of settlement were arbitrarily not admitted to duty on and after 19th December1969."

15. The burden to prove that the Management had locked out these workmen lies heavily upon the Union. It must clearly allege the circumstances In which the lock-out took place.

16. At any rate lock-out 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 intended for the purpose of compelling workmen employed to accept certain terms and conditions of or affecting employment."

16. It is not mere closing of a place of employment which among to lock-out. The closure must be in connection wit an industrial dispute or is intended to compel workmen t accept certain terms affecting employment. The Union, has failed to establish either of the two ingredients of lock-out.

17. I for the reasons given above, allow the appeal and set aside the award of the learned Court dated 28th February1972.