1976 PLP 418 (PLC)

(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)

S. O.11-Lay off -Right of Management-Not dependent upon applicability of Ordinance-Every employer has right to resort to lay off irrespective of fact whether provisions of Ordinance applicable to establishment or not-Such right however subject to limitation that it should not be exercised to victimize workmen but done bona fide keeping in view circumstances of particular case-Lay-off challenged by the Workers' Union as illegal lock-out for victimization of workers-Mere allegation, held, not sufficient-Fact forming basis of claim must be supported by evidence. Zamirul Hasan for Appellant. This is an appeal under section 37 (3) of the Industrial Relations Ordinance, 1969. 2. The appellant is engaged in the canning of shrimps for export. 23 persons were employed. On account of shortage of shrimps workers were laid off and, therefore, the charter of demand dated 23-10-1974 under section 26 (1) of the I.R.O. was served upon the appellant for prohibition of the lock-out. This charter of demand was signed by Muhammad Jabbar, who claimed to be the General Secretary. A meeting was called and status of Muhammad Jabbar. General Secretary, was challenged. Since there was no agreement the strike notice deted 6-11-1974 under section 26 (3) .of the I.R.O. was submitted by Muhammad Jabbar. After the failure of the conciliation proceedings failure certificate was issued and the dispute was filed in the Labour Court. An objection was taken that the demand notice and strike notice were illegal as Muhammad Jabbar who claimed to be -the General Secretary of the Union and had signed the two notices was not, in fact, the General Secretary. According to the appellant Ghulam Muhammad was the General Secretary and he had not signed the notices. The application which was made to the Labour Court for adjudication of the dispute was also signed by Muhammad Jabbar and not by Ghulam Muhammad. 3. Evidence was tendered by both the parties. On the assessment of the evidence the learned Labour Court came to the conclusion that Muham mad Jabbar was the General Secretary and the workers had been victimized by wav of the weapon of lay off. Demand was, therefore, allowed. Aggriev ed by this the present appeal had been filed. 4. I have heard the learned counsel for the appellant while none appeared on behalf of the respondent. On the perusal of the record and proceedings I am of the view that the conclusion reached by the learned Chairman of the Labour Court is not sustainable. It was all along agitated by the appellant that Muhammad Jabbar was not the General Secretary and, therefore, the proceedings initiated by him were illegal. The respon dent in order to refute this contention did not lead sufficient evidence Admittedly Ghulam Muhammad was the General Secretary and Muhammad Jabbar was the Treasurer. Copy of letter dated 10-10-1974 addressed to the Registrar of Trade Union was produced in which it was stated that consequent upon the resignation of Ghulam Muhammad, General Secretary of the Union, Muhammad Jabbar, Treasurer of the Union, had been appointed as General Secretary while Ghulam Muhammad had taken over as Treasurer of the Union. The Union was asked to produce documents but till today no document has been produced nor any evidence has been brought on record that the Registrar t has accepted the change. A General Secretary could not be appointed unless he was duly elected and no documentary proof was furnished to show that any meeting was called and Muhammad Jabbar was elected as General Secretary. It is not known by whom and under what authority Muhammad Jabbar was appointed as General Secretary. It can not be denied that regular register is maintained whenever meeting of the Union is called but no such register was produced. In the absence of such a proof it is not possible to hold that Muhammad Jabbar was elected as Ganeral Secretary and that being so the proceedings initiated by him were illegal and no relief could be granted on the basis of those proceedings. 5. The learned Chairman also entertained the view that the workmen had been victimized by way of weapon of lay off. I am constrained to observe that this conclusion is not supported by any evidence. A vague allegation was made by the workers that the lay off was effected to harass them but no details of harassment were furnished nor any reason or motive for the Management to harass the workers was given. A fact which forms the basis of the claim must be supported by evidence. Mere fact that there was lay off B does not justifiy to reach the conclusion that this was done in order victimize the workmen. The workers had not agitated any other demand or done anything to the Management in order to indicate that the Management had used this weapon to harass or victimize the workmen. No substantial ground had been pleaded in support of the evidence. 6. The learned Chairman was of the view that since the Standing Orders Ordinance did not apply the Management could not effect the lay off. This is contrary to the concept of relation between the Industrialist and the Labour. It is the right of the Management to effect the lay off irres pective of the fact whether Standing Orders Ordinance is applicable not but this right according to the modern concept of relationship is subject to the limitation that this right is not exercised in order to victi mize the workmen but is done bona fide keeping in view the circumstance of a particular case. 7. In the result the appeal is allowed and the order of the Labour Court is set aside.