1988 PLP 392 (PLC)

2. Brief facts are that the respondent Elite Publishers Employees Union had served a notice of strike under section 26(3), of the I.R.O. 1969 on 11‑3‑1987 following by a number of conciliation proceedings and by consent of the parties at several times and lastly upto 15‑4‑1987 such adjournment was extended, but, during this adjourned proceeding the respondent withdrew its consent on 2‑4‑1987 and thereafter, on 4‑4‑1987, the respondent union went or, strike which was prohibited by this Tribunal or. 7‑7‑1987. Further, it was a case of the applicant management that during the period of this strike, it had charge‑sheeted 12 employees for the misconduct and subsequently after holding proper, fair and impartial domestic enquiries, these 12 employees were dismissed from service on different dates between 21‑5‑1987 and 25‑6‑1987 and these dismissal orders were produced by the union themselves before the learned Labour Court alongwith their application under section 45, I.R.O.1979 as Exhs.C/1 to C /12. The applicant management claimed that out of these 12 dismissed workers, only two such workers, namely, S. Mutahir Hussain and Ehsan had served grievance notice copies whereof were also filed on the record of the Labour Court as Exbts. D/1 and D/2. Further, it was a case that an application under section 45, I.R.O. 1969 filed by the respondent union before Sind Labour Court No.IV, Karachi, was not legally maintainable for want of jurisdiction as the original jurisdiction of a Labour Court for the purposes of the applicants and the respondent union was of Sind Labour Court No.11, Karachi, and the proceedings which were pending before Labour Court No.IV, Karachi were originally instituted in Labour Court No.l l but as it was lying vacant, therefore, they were transferred to Labour Court No.IV, Karachi, under the proper orders of this Tribunal. Further the applicant management claimed that while filing an application. under section 45, I.R.O. 1969 before the Labour Court No.IV the respondent union did not file any separate application under section 34, I.R.0. 1969 and the Labour Court without recording any evidence and merely on the basis of an application and a reply statement thereto came to the conclusion that although the workers, in question, have been dismissed from service, yet, in national interest, it was being ordered that indirect lock‑out may be lifted and the material observations made are as under:‑ "Presently position should remain, as it was till issue of the dismissal is decided by Labour Court and result thereof regarding wages etc. " The applicant management claimed that on this, he had made an application under section 151, C.P.C. asking clarification of the above order dated 30‑7‑1987, on the ground that it appeared that whereas Court had come to the conclusion that dismissal was there but it was indirect lock‑out when it observed that position should remain as it was till issue of dismissal is decided, wherein, the Labour Court, vide its order, dated 10‑8‑1987, held that it was ordering lifting of the lock‑out subject to the right of the employer to justify in proceedings initiated by the employee under section 34, I. R.O. 1969 that dismissal of these workers was justified and it had further ordered that parties should concentrate on application under section 34, I . R.O. 1969 and await orders of the Court in this regard, entire Court order was to be seen to avoid any interpretation of their own. Under these circumstance, the applicant management had sought the intervention of this Tribunal under its suo motu powers to examine the legality, correctness and propriety of the above two impugned orders of the learned Labour Court No.IV Karachi, with a request to set aside the same. A suo motu revision application.

3. I have heard Mr. Mahmood A. Ghani, the learned Advocate for the applicant management and Mr. Shafique Qureshi, the learned Advocate on behalf of the respondent union and have also carefully perused the record and proceedings of the case, at the very outset I would observe here that it is pertinently clear that for the purposes of Messrs Elite Publishers Ltd., the territorial jurisdiction was of Labour Court No.ll, Karachi, and it was not open for any individual litigant to apply in any Court of Law of his own choice. Therefore, proper course for the respondent union was to approach to the Sind Labour Court No.11, Karachi, having the jurisdiction and thereafter, a separate application was to be made to this Tribunal for transfer, of application under section 45, I.R.O. to Sind Labour Court No.IV, Karachi, thus, institution of proceedings directly before the Labour Court IV, was, therefore, contrary to provisions of Law and of no legal effect. However, Mr. Mahmood A. Ghani, the learned counsel for the applicant management has referred to me the provisions of section 45, I. R.O. 1969, and submitted that on a perusal of this provision of Law, it would be made abundantly clear that proceedings under section 45, I.R.O. 1969, would only be maintainable if there is a strike or a lock‑out which is in pursuance of industrial dispute and it should be in existence at the time when, in respect of such industrial dispute, there is pendency before a Labour Court, of an application under section 34, I.R.O. 1969 and as such the Labour Court can only prohibit continuance of such a strike or lock‑out if the aforesaid two conditions referred to hereinabove are fulfilled by the respondent union. Mr. Mahmood Ghani has thus, invited my attention to the fact that admittedly, no separate application was moved by the union under section 34, I.R.O. 1969 alleging that the lock‑out in pursuance of an industrial dispute had commenced and was in existence in respect of such industrial dispute, therefore, in absence of any such separate application under section 34, I. R.O. 1969 any proceedings under section 45 of I.R.O. 1969 itself was not maintainable. I see much force in these arguments, of Mr. Mahmood. A. Ghani. On the other hand, Mr. Shafiq Qureshi, the learned Advocate on behalf of the responent union has argued that management have earlier instituted proceedings under section 34, I.R.O. which were pending before the Sind Labour Court No.IV, and as such, the union need not to file any separate application under section 34, I.R.O. 1969 alongwith application under section 45, I.R.O. 1969, I see no substance in this argument of Mr. Shafiq Qureshi. Proceedings under section 34 so filed by the management pertains to strike resorted to by the union and these proceedings have nothing to do with the allegations of lock‑out in respect of the 12 dismissed workers and as such union cannot rely upon that application moved by the applicant management.

4. It was next submitted by Mr. Mahmood A. Ghani that in application under section 45, I.R.O. 1969 filed by the respondent union vide its para 10, it was specifically mentioned that 12 persons have been dismissed from service and not only their names were mentioned but, also the relevant dates of their dismissals were given, therefore, it is an admitted position on behalf of the respondent union itself that these 12 workers were dismissed after service of proper charge‑sheets and conduct of lawful domestic enquiries. In support of his pleadings, Mr. Mahmood A. Ghani, the learned Advocate for the applicant management has relied upon a number of Authorities of superior Courts as well as of this Tribunal. He, therefore, submitted that dismissal or termination of service is not a lock‑out within the meaning and contemplation of section 2(xvi) of I.R.0. 1969 and referred to me a decision of the Supreme Court in the case of Workers of Bata Shoe Company Lahore v. Bata Shoe Company, reported in 1971 P L C at page 1, wherein it was hold as under:‑ "Considering the case of the appellant from this angle, this is quite clear that the words used in the definition of 'Lockout' namely the 'refusal by an employer to continue to employ any number of persons employed by him does not cover the case of dismissed employees by the employer." In another case of General Iron and Steel Works Ltd. reported in 1968 S C M R at page 534, the Hon'ble Supreme Court of Pakistan, has observed as under:‑ "Industrial Disputes Ordinance (LVI of 1952), S.20 Industrial Court prohibiting lock‑out under section 20‑‑Not competent while issuing such order to direct simultaneously that workmen whose service had been terminated be re‑instated and wages and emoluments be paid to them. Such a direction can only be given in an award when dispute raised separately as to the validity of termination of service." Mr. Mahmood. A. Ghani, the learned Advocate for the applicant management, in support of his pleadings, has further referred to me two decisions of Division Bench of Sind High Court, reported in 1975 P L C at page 32 and 1970 P L C at page 761 respectively. He has further relied upon two decisions of my learned pre‑decessors. One is of Mr. Justice Inamullah Khan, reported in 1970 P L C at page 1; while the other is of Mr. Justice Ghulam Rasool Shaikh, reported in 1974 PLC page 876 at page 877; and finally to a case reported in PLC 1962 at page

267. It appears that all these authorities on the' point involved, are very well relevant to the present case and they cannot be ignored while deciding the present issue of the case. I would, therefore, hold that the parties are bound by their pleadings The respondent union that these was a lock‑out. The question as tot whether dismissal of these 12 workers was legal, proper and in accordance with law, can only be determined by the Labour Court in: proceedings under section 25‑A, I.R.O. 1969 which proceedings can be initiated only after the aggrieved workmen serve grievance notices' and such dismissal of these workmen, cannot be examined by the Labour Court in proceedings under section 34, I.R.O. 1969.

5. Lastly, it was very correctly argued by Mr. Mahmood A. Ghani, the learned Advocate for the applicant management that the learned Labour Court without examining the evidence of the parties and even without determining the question as to whether these 12 workers have served any grievance notice, had verbally ordered the re‑instatement of these workers by directing the management to lift the lock‑out in respect of these 12 dismissed workers.

6. On the other hand Mr. Shafique Qureshi, the learned Advocate for the respondent union has contended that in view of the order of this Tribunal, the union called off the strike on 7‑7‑1987, but, the applicant management did not allow the entry of office‑bearers of the union and other active members and also demanded signatures on blank papers and also forced the workers to disassociate from the union, which resulted in continuance of the illegal lock‑out, and on an intervention of the Administration, there was a compromise between the parties, so, in view of the said compromise, an application under section 45, I.R.O. 1969 for an illegal lock‑out of all the office‑bearers of the union, namely the above‑referred 12 dismissed workers, was submitted before the learned Labour Court resulting in the impugned orders, which are quite in consonance with the Law. Hence, not to be set aside in the present application. In support of his contentions, Mr. Shafique Qureshi, the learned Advocate on behalf of the respondent union has referred me to two authorities, reported in 1974 P L C page 194 at page 201 and 1982 S C M R at page 651‑

653. However, I see no force in any of the arguments of 11r. Shafique Qureshi, the learned Advocate for the respondent union. The authorities relied upon by him are quite distinguishable to the facts and circumstances of the present case.

7. As regards the contentions of qtr. Shafique Qureshi, the learned Advocate for the respondent union that an industrial dispute under section 32(1‑A), I.R.O. 1969 to determine the relations and terms of employment between the employer and employees were pending, application by the employer for a declaration that the strike be declared as illegal was also pending before N.I.R.C. and Labour Court prior to the so‑called dismissal indirect lockout and the fact that the relationship between employer‑employees stand suspended during the course of strike, goes on proving that there was no so‑called dismissal and the employer had no power to dismiss and or remove any worker during the said period of strike, I would observe here that there is also no substance in this contention of Mr. Shafique Qureshi. The authority, reported in P L D 1958 S C (Pak.) at page 418 is also distinguishable and not at all applicable to the factual and legal position of the present case. '

8. The issue for consideration is as to whether dismissal of the 12 workers was legal, proper and in accordance with law. This issue can only be determined on the basis of evidence that is to be led by the parties in appropriate proceedings before the Court having territorial jurisdiction. No sooner the union admits the position that these 12 workers have been dismissed, at the same time, it is not open for the union to simultaneously plead that it was case of lockout. Superior Courts have repeatedly held that dismissal from service is not lockout, proceedings under section 45, I.R.O. 1969 are summary proceedings where no evidence of the parties are recorded. Without examining the dismissed workers or management and without recording evidence and producing relevant documents by parties pertaining to; charge‑sheets domestic enquiries etc. , it is not open for the Labour: Court to come to the conclusion that the dismissal of these 12 workers, constitutes illegal lock‑out. Impugned order of the learned Labour Court, therefore, is neither correct, proper nor in accordance with law. The proper forum for redressal of grievance of dismissed workers, is proceedings under section 25‑A I.R.O. 1969.

9. For the reasons discussed by me above, the present suo mote revision application is allowed and the impugned order, dated 30‑7‑1987 and subsequent order, dated 10‑8‑1987, in application No.2 of 1987 under section 45, I.R.O. 1969 passed by the learned Sind Labour Court No.IV Karachi are incorrect and improper, hence, set aside accordingly. A. E. /1109/Lb.S Revision allowed.