1972 PLP 394 (PLC)

HIDAYAT HUSSAIN (CHAIRMAN).‑The applicant‑Union are the collective bargaining agent with the respondent‑Manage ment. An agreement was entered into between the parties on 28th December 1970, in terms of which certain demands of the workers had been acceded to by the Management. The allegation of the applicant‑Union is that in order to nullify the effect of the agreement the respondent‑Management resorted to illegal practice of coercion, intimidation and victimisation of the workmen. Criminal complaints have been filed by the General Secretary of the Union against the respondent‑Management for committing breach of the terms of the agreement in the months of June and July. It is the case of the applicants that as a measure of retaliation the respondent‑Management closed down their 'C' shift requiring the workers to report for duty in the other shifts but when they reported for duty the Management refused to take them back on their previous terms and insisted on their accepting the job as Badli workers. Ultimately they closed down 'A' and 'B' shifts also. The applicant‑Union preferred Application No. 50/71, under section 45 of the I. R. O., 1969 against that closure and this Court through its order dated 22nd September 1971, hold that the closure of work in 'A' and 'B' shifts appeared to be a measure of retaliation against the action taken by the Union against the Management. This Court through its order had prohibited the continuance of that closure of work. In this application the applicants have prayed for the prohibition of the closure of 'C' shift. Alongwith this application an Application No. 511/71 under section 34 of I. R. O., 1969 has also been preferred. Mr. Fayyaz Muhammad Azad appears for the applicants and Manager Mohiuddin Shaikh of the Management appears for the respondents. Contentions of Mr. Fayyaz Muhammad Azad are as follows:‑‑‑ (a) The Management has failed to fulfil the terms of the agreement arrived at between the parties on 28th December 1970. (b) The Union filed criminal complaints against the respon dent‑Management in the month of June. (c) The closure of 'C' shift came about on 23rd/24th August 1971. (d) The procedure laid down under section 11 has not been followed. (e) These circumstances clearly indicate victimisation on account of lawful Trade Union activities. (f) In the cloak of closure of fhb shifts the office-bearers of the Union have been thrown out. Manager Mohiuddin Shaikh replies as under :‑‑ (a) The closure was on account of circumstances beyond the control of the Management. (b) This was a case of indefinite closure of a section of the Mill (weaving section) and the rest of the departments of the Mills are still working. (c) There is no victimisation. It is correct that this Court through its order dated 22nd September 1971, found that the Management resorted to closure of work after the bargaining agent moved the authorities for the enforcement of the agreement dated 28th December 1970. It is also correct that the Union filed criminal complaints arising out of that agreement in the month of June and July. It is also a fact that the closure came into effect in the month of August and hence prima facie it appears that through closing down these shifts the Management aimed at coercing the Union not to pursue the remedies according to law. The con tention of Manager Mohiuddin Shaikh that this was a case of indefinite closure and, therefore, other subsections of section 11 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 do not come into play does not appear to be correct. Section 11(3) reads as under :‑ "In case where workmen are laid‑off on account of failure of plant or a temporary curtailment of production, they shall be paid by the employer an amount equal to one‑half of their daily wages during the first seven days of lay‑off, and one‑thirds of their daily wages during the following seven days as compensa tion. When, however, the workmen have to be laid‑off for an indefinite period beyond the above‑mentioned fourteen days, their services may be terminated after giving them due notice or pay in lion thereof." The subsection is clear. Indefinite closure can be resorted to only after the expiry of 14 days mentioned in the first part of the subsection. If it were the intention that the indefinite closure may be resorted to from the very beginning there was no need of mentioning 14 days in the last portion of the subsec tion. In that case the subsection might have read as under :‑ "When, however, the workmen have to be laid‑off for an indefinite period their services may be terminated after giving them due notice or pay in lieu thereof." It has, therefore, to be held that closure for indefinite period cannot he resorted to before the expiry of the 14 days mention ed in the subsection. Again in taking recourse to this closure the Management has failed to follow the procedure laid down in section 26 of the I. R. O., 1969. The contention of Manager Mohiuddin Shaikh is that in, such a case provisions of section 2 of I. R. O., 1969 were not attracted in view of the decision of the Labour Appellate Tribunal, Karachi reported in L. L. C. p.

380. That view is based on the opinion expressed by the Division Bench of the High Court in the year 1964. Obviously in the year 1964 the West Pakistan Industrial and Commercial Employ ment (Standing Orders) Ordinance, 1968 and the Industrial Rela tions Ordinance, 1969 were not in existence. These enactments have brought about marked changes in the relationship of the Employer and the Employees. In the circumstances of this case it appears to this Court that the closure of the shifts was designed at suppressing the lawful Trade Union activities. This is, therefore, a case of illegal lock out and the closure appears to have been used only as a cloak to remove the office‑bearers during the pendency of the industrial dispute. Continuance of the lock‑out is therefore, prohibited.