1973 PLP 54 (PLC)

An application under section 45 of the I. R. O., 1969 (Application No. 39/1972) was filed on behalf of the applicant along with the main application under sec tion 34 of the Ordinance. In the said application they prayed for prohibitory order against the respondents restraining them from effecting, the Illegal strike and preventing the willing workers from resuming their work pending decision of main application under section 34 of the I. R. O., 1969. This application is support ed by the affidavit of Mr. Munawar Malik Jamal, Managing Director of the applicants. Notice was given to the other side. Reply statement has been filed on behalf of the respondents in which all allegations made in the application and in supporting affidavit have been vehemently denied. This reply is supported by an affidavit of Gulab Khan, Joint Secretary of the respondent Union. It is contended that strike resorted to by them was legal. I had then heard the learned Representatives of the parties. Mr. M. A. Shahani who appeared for the applicants had following contentions to make:-- (a) That the respondent-Union had served notice under sec tions 26(1) and 26(3) respectively to the applicants. The Manage ment raised objection before the Conciliator about the main tainability of the notice and also raised the objection about their being, true collective bargaining agents. (b) The Workers' Union had already made an application before the Registrar of Trade Unions, Karachi for holding the referendum in order to determine the collective bargaining agent, which is already pending. (c) That during the pendency of the said application there are about 15 workers of the Employees' Union who had gone on illegal strike in contravention of the provisions of the

1. R. O., 1969 and have also prevented 75 % of the willing workers from their duty. (d) That the above strike was illegal and it effected 250 wor kers including thousand poor fishermen and also there was loss of valuable foreign exchange to the country. (e) That the aforesaid strike was effected from 7th September 1972 and all the workers had been prevented from their work and consequently the applicants had suffered a monetary loss by forcible closure of the factory. Mr. A. Khan who appeared for the respondent-Union has denied all the allegations made by the applicants in their applica tion as well as the accompanying affidavit. According to him strike was not illegal. That during the conciliation proceedings before the Conciliator the applicants did not raise any' objection to the effect that this Union was not collective bargaining agent 0r there was any other Union in the establishment. That the appli cants employed about 50 workers as permanent and the rest of the workers were casual and temporary. The workers of the later category had no right of voting in determining the collective bargaining agent. That during the pendency of the conciliation proceedings before the conciliator the applicants got registered its own pocket Union on 5th September 1972 with the help of a contractor who is not a workman and other casual workers who are not on the permanent list of the Management. That fn order to save the stuff, the Union was keeping the freezing plant of the Fishery Products Ltd., in working order, that the Management had thrown out the office-bearers-and active members of the res pondent-Union without any notice, charge-sheet or enquiry. I have gone through the application, the reply and the res pective supporting affidavits. I have considered the arguments advanced by the learned Representatives of the parties. As a matter of fact order under section 45 of the Ordinance is of tem porary nature hence if I express my opinion whether the strike was illegal or not I will be prejudging the whole case. All the points raised by the applicants as well as the respondents require adjudication which can be determined while disposing of the main application under section 34 of the Ordinance. There is definitely a dispute between the parties for which applicants pre ferred an application under section 34 of the Ordinance. It is said A that the services of some of the workers had been terminated by the Management without proper enquiry. All these facts will be determined after the evidence is recorded in the main case under section 34 of the Ordinance. For the reasons given above, I prohibit the continuance of the strike under section 45 of the I. R. O., 1969 and order the workers to resume work.