1970 PLP 757 (PLC)

Z. ARMED (CHAIRMAN).‑This is an application by the Tajuddin Silk Mills Workers' Union under Order XXXIX, ales 1 and 2, C. P. C. and section 15l, C. P. C. seeking a temporary injunction against the respondent‑Mills prohibiting them from disposing of, by sale or otherwise the machinery of the Mills during the pendency of the industrial Dispute between the parties. It appears that the applicant‑Union who is Bargaining Agent in respect of the respondent‑Mills served a Notice of Demands on the respondents dated 19‑6‑1970, under section 26 of the Industrial Relations Ordinance, 1969, that on 20‑6‑197,), the respondents served a notice of counter‑demands on the applicant, that on 2 1‑6‑1970 the respondents locked out 46 workers of the Mills, that, therefore, the applicant‑Union served a notice of strike dated 26‑6‑1970, upon the respondents under section 28 of the Industrial Relations Ordinance, 1969, that, in turn, the respondents served upon the Union a notice of lockout effective from 23‑7‑1970, and that on 30‑6‑1970, the respondents put up a notice of total closure of business with effect from 1‑7‑1970 on the ground of "lack of demand and slumpness in the market." The result was that with effect from 1‑7‑1970, all the remaining workers numbering about 254 also went out of employment. These facts are stated by the applicant‑Union in their application under section 34 of the Industrial' Relations Ordinance, 1959, which they submitted to this Court on 22‑7‑1970, in consequence of the above action taken by the respondents. That application is still pending disposal. The‑ present application under Order XXXIX, rules 1 and 2, C. P. C. has, therefore, been made to prevent .the respondent from disposing of the Mills machinery pending decision of the Industrial Dispute under section 34 of the Ordi nance. I have heard Messrs Wasi Ahmad for the applicant rind Mahmood A. Ghani for the respondents at length and the issues that arise in the matter are: ‑ (1) Whether this application is competent under Order XXXIX, rule 1, C. P. C. in the given circumstances of the case. (2) Whether the applicant‑Union is entitled under the Labour Laws to claim an order from the` Court prohibiting the respon dents from closing down their business and disposing of the business property. The contention of Mr. Mahmood A. Ghani for the respondent is that the provisions of Order XXXIX, rules 1 and 2, C. P. C. are not attracted to the facts of the case and there is no authority under the Labour Laws for prohibiting the respondents from closing down their business and disposing of the business property. According to him the machinery and other property of the Mills in question is not "property in dispute" within the meaning of rule 1 of Order XXXIX, C. P. C. The dispute between the parties is over certain demands which the applicant has made on behalf of the workers of the Mills in relation to their employment and non‑employment. In such a dispute the property of the Mills such as machinery, equipment, structure etc., is not involved and, therefore, the provisions of Order XXXIX, rule 1, C. P. C. are wholly inapplicable to the situation like the present one. The workers of the Mills have no direct or indirect proprietary interest in the property of the Mills and the right of ownership in this property vests entirely in the respondents. The workers have only a right to operate the machinery of the Mills in accordance with the terms of the contract made by them with the employer for the purpose: In the absence of any contract to the contrary, this right of the workers is co‑existent with and dependent upon the will of the Mill‑owner to run the Mill for such time as is convenient and profitable to him. With the bona fide decision of the owner to stop running the Mill and close down his business he right or the workers to work in the Mill comes to ail end. The applicant has net shown any term of the contract of employment by which the respondents have bound themselves to continue operating the Mills for a specified period, Similarly, it is also not suggested by the applicant that there is a term in the contract of employment which debars the respondents from closing business and disposing of the machinery, whether during the pendency of the Industrial Dispute or otherwise, without the permission of the workers. In such circumstances, therefore, neither the provisions of rule 1 nor of rule 2 of Order XXXIX, C. P. C. are attracted to the present case. I would, there fore, accept the contention of Mr. Mahmood A. Ghani to that effect. As regards the second question whether the applicant can on the authority of any law or contract place a restriction ‑with the aid of the Court on the right of the respondents to dispose of their machinery and other property of business involved in this case, the answer is clearly in the negative. It has already been pointed out that there is no contract between the parties by the terms of which the respondents are either bound to operate the Mill for a specified period or they are bound not to close down their business and dispose of the business property without the prior consent of the workers.. Similarly there is no provision under Industrial Relations Ordinance, 1969, or any other law which places any restraint on the right of the owner of an Establishment or Industrial Unit to close down his business, whether in the course of the proceedings under the Ordinance or otherwise. By now it has become settled law that a complete closure of business does not amount to lockout within the meaning of section 2(xvi) of the Ordinance, 1969 because lockout contemplates a temporary closing of place of employment or part of it or the suspension wholly or partly of work for an unauthorised purpose and this is quite different from a permanent and irrevocable closure of a place of business or of the business itself. The applicant has alleged in paras. 5 and 7 of his affidavit that the respondents are selling away the machinery and other materials of the Mills, alternatively, that they are attempting to shift the machinery and other materials to some other place with a view to re‑install them. These allegations are met by the respondent in their affdavit, sworn through one Mr. Abdul Hameed, a Director 6f the Mills, and in para. 1 of the affidavit, it is affirmed That ‑ the respondents have closed down their Milis and the services of the employees have been terminated on the‑ payment of legal does and in para. 7, it is denied that the machines and looms are being shifted to some other place for the purpose of re‑installation. Therefore, from the affidavits of the parties, it is quite evident that the respondents have in fact closed down their business. Having closed down the business, they are entitled in law to dispose of the property of the business in the manner they like and the 2 workers in such circumstances have no right to prevent the closure of the business and the disposal of the business property by the respondents. They are at the most entitled to the payment of such compensation, wages and other dues from the respondent in accordance with the law and contract of employment. Some of their claims on that account are awaiting adjudication under section 34 of the Ordinance. Accordingly, this application is not maintainable and is, therefore, dismissed. Announced in open Court.