1975 PLP 32 (PLC)

Dates of hearing: 291 August, 1st and 9th September 1975. The circumstances in which this petition has arisen are as follows: ‑

1. The petitioners are manufacturers of sweet‑meats with their factory at S. I. T. E., Maripur Road, Karachi, and have also four shops in the city of Karachi, employing 91 workmen therein. It is alleged that on 16‑12‑72, free sale of sugar in the market was prohibited and rationing system was introduced. The limited supply of sugar had its impact on the business of the petitioners, with the result that on 26‑12‑1972, the petitioners terminated the services of 27 workmen. 18 workmen accepted the notice of termination of services, while the other nine worker refused. The petitioners then sent registered letters at their addresses which were returned undelivered. On 27‑12‑1972, the workmen without resorting to the formality of any notice under section 26 of the Industrial Relations Ordinance started a tool down strike to bring pressure on the petitioners for the withdrawal of the notices. The petitioners sent a letter to the General Secretary of the employees Union to call off the strike and resume the work within 24 hours. As the workmen refused to pay any heed to this letter and the verbal appeals the petitioners filed an application under section 34 of the Industrial Relations Ordinance before the Sind Labour Court for adjudication of the dispute. It was accompanied by a separate application under section 45 of the Industrial Relations Ordinance to prohibit the continuance of the strike, It is alleged that due to the active efforts of the Labour Director, the employees resumed the work on 30‑12‑1972, but that lasted Only for about 10 days. On 10‑1‑1973, there was a fresh tool down strike on the part of the workmen. On 11‑1‑1973, tile petitioners made an application in the Labour Court for antedating the hearing of the application under section 45 of the Industrial Relations Ordinance which was to come up on 31‑1‑1973. The said application came up for hearing on 19‑1‑1973; and on 22‑t‑1973, the Presiding Officer of tile Labour Court prohibited the strike. The said order of the Labour Court was published in the daily Jang, daily Dawn and Nai Roshni, Karachi, and on 25‑1‑1973, the petitioners filed a complaint under section 57 of the Industrial Relations Ordinance against the 45 workmen before the Respondent No.

1. The case was registered and process was issued as prayed.

2. It is alleged that on 23‑1‑1973, the Respondent No. 2 also had filed an application under section 45 of the Industrial Relations Ordinance against the petitioners.

3. The contention of the petitioners before the Labour Court was that there was no lock‑out, but the services of a few workmen had been terminated in view of the non‑availability of sugar which was basic for their industry. The learned Presiding Officer held that the question whether it was a lock‑out or a proper retrenchment would be considered after the evidence had been led. "Meanwhile. I prohibit the management for continuing the lock‑out, if any. The order will be read with my order passed on 22‑1‑1973".

4. On 26‑1‑1973, the respondent No, 3 filed a complaint before the respondent No. 1 for action being taken under section 57 of the Industrial Relations Ordinance against Abdul Hannan, the proprietor of the petitioner's Industry. On 2‑2‑1973, the learned Presiding Officer registered vie case and issued the process against the said Abdul Hannan for appearance on 19‑2‑1973. It is these two orders, namely, the order of prohibition of the lock‑out, and the issuance of process against Abdul Hannan under section 57 of the Industrial Relations Ordinance, which have been called in question in this petition.

5. The salient features of the case are that the petitioners had filed an r‑ application under section 34 of the Industrial Relations Ordinance, 1969, and on their application under section 45 of the Industrial Relations Ordinance, the learned Presiding Officer had prohibited the strike on 22‑1‑1973. On the other hand, the respondents Nos. 2 and 3 had not raised any dispute or filed an application under section 34 of the Industrial Relations Ordinance.

6. Mr. Abdul Karim Lakhan, learned counsel for the respondent3 very hesitatingly stated that the pendency of the dispute had been mentioned in the application under section 45 of the Industrial Relations Ordinance filed by the respondent No. 2 But that has a reference to a charter of demands with a notice under section 25 of the I. R. O. It also appears that the said dispute had been settled and an agreement had been arrived at between the parties on 3‑10‑1972. That would be quite some time before the dispute in question arose.

7. Mr. Abdul Karim has also mentioned that in the instant petition it was categorically stated hat the respondent Nat 2 ad not raised any dispute with regard to the retrenchment of the 21 workmen or to the alleged illegal lock‑out, and there was no specific denial at kill in the counter‑affidavit filed by the respondents. In the circumstances, it can not be said that the respondents had filed an application under section 34 of the industrial Relations Ordinance before the Labour Court. Mr. Naeemuddin, learned counsel for the petitioners, therefore made three submissions. The first submission raised was that the respondent No. 2 could not file an application under section 45 of the Industrial Relations Ordinance in the absence of a dispute raised by them the prescribed manner. The second, submission was that within a few days of tie prohibition of the illegal strike, there could conceiveably be no basis to pass an order prohibiting an illegal lock‑out. The two orders, according to him, were mutually exclusive. The third submission was that otherwise too at the interim stage no order of re‑instatement could be passed against the petitioners. The older of re‑instatement will be a logical corollary of the prohibition of the alleged lock‑out. In support of the last contention, he referred to the case of General Iron & Steel Workmen Union v. Messrs General Iron &c Steel Works Ltd. (1968 S C M R 534). It was held therein "By holding that there was a lock‑out and prohibiting it, the Industrial Court could be understood also to hold that there was no breach in the continuity of the services of the workers affected or any alteration in their terms of service. But a direction for re‑instatement and for payment of wages and emoluments could only be made in an award in a dispute raised as to the validity of termination of services and that could only be raised in a different from." Section 20 of the Industrial Disputes Ordinance, 1959, is almost in identical terms with section 45 of the Industrial Relations Ordinance.

8. The submissions must prevail, and in the circumstances disclosed, I have no hesitation in holding that the order prohibiting the lock‑out was not in the exercise of lawful authority, and therefore of no legal effect. The complaint registered under section 57 of the I. R. O. flows from this order prohibiting the lock‑out, and on the basis of a void order, subsequent orders by the same authority or other authorities will be without any legal foundation and must also be quashed. The petition is therefore allowed and the impugned orders are quashed, but with no orders as to costs. S. Q. Petition allowed.