1972 PLP 414 (PLC)

HIDAYAT HUSSAIN (CHAIRMAN). Workmen of the respondent establishment proceeded on legal strike on 3rd March 1970. The Government of West Pakistan in the Labour Department prohibited this strike through order dated 14th March 1970, and referred the demands of the workers to this Court. After the strike was prohibited the workers reported for work. It is the case of the applicant‑Union that 90 workers included in the list annexed to the application were refused work by the Manage ment hence this application under section 45 of the I. R. O., 1969 by the applicant Union. Mr. Fayyaz Muhammad Azad appearing for the applicant‑Union submits as follows: (a) The strike was legal and after it had been prohibited by the Government of West Pakistan the Management was bound to take all the workers back on work. (b) The fact that the Management refused to take these workers back on work goes to show that there is a lock‑out. Mr. Muzaffar Ahmad Khan for the respondent‑Management contends as follows:- (a) The strike was legal but it was only partial. (b) Those workmen who had gone on strike attempted to prevent those who were willing to work and then the Manage ment had to take disciplinary action during the pendency of the strike. (c) The Management was prepared to take all the workers back except 19 workers who had been dismissed during the pendency of the strike. (d) The list filed by the applicant‑Union also includes 4 workers who had been dismissed or otherwise removed from employment before the strike had commenced. (e) 22 workers included in the list have resigned. (f) Refusal to take the workers back on work does not amount to lock‑out because the services of the workers were terminated after adopting the prescribed procedure. (g) The application is highly belated. The dispute was referred to the Court on 15th April 1970 and the workers alleged that they were refused work within a couple of days and they have filed this application on 15th September 1970. (h) No affidavit was filed in support of the application under section 45 and it ass only after the Management had filed the affidavit that the applicants came up with their affidavit. During the course of hearing of this application Labour officer Muzaffar Ali Shah was examined on 28th August 1971. The relevant portion of his statement is as follows :‑ "I found that the Management was prepared to take 16 workers on]; and they were not prepared to take back 75 workers." Prima facie there does not appear any reason why the statement of the Labour Officer maybe thrown away and in the face of this statement the stand of the Management that they were prepared to take back all the workers except 19 workers does not appear to be correct. The position, therefore, appears to be that the Management was not prepared to take any workman except the 16 workers. The contention of Mr. Muzaffar Ahmad Khan that 19 wor kers were dismissed after due enquiry also does not appear to be correct prima facie because admittedly the proceedings have taken place ex parts and the Management has hurried through the proceedings. According to Mr. Muzaffar Ahmed Khan the Management had to act swiftly so that these workers who bad gone on strike did not succeed in preventing the willing workers from work. I am afraid, that this appears to be a case of hoe haste. The contention of Mr. Muzaffar Ahmad Khan that the Management was not bound to take the workers back on work after the strike had been prohibited by the Government also appears to be devoid of forced because the only conclusion which follows from the prohibition of the strike is that the workers have to resume work. Mr. Shaukatali A. Nanji the dined Member of this Court feels that this application may be decided after the Management is allowed an opportunity to produce the evidence to the effect that they have dismissed the workers properly. It does not appear necessary in this case because the Management appear to have been unwilling to allow the workers to resume work even after the strike had bees prohibited by the Government and also because the proceedings resulting in the dismissal of some of the workmen were conducted in hot haste. It, therefore, appears that the workmen were refused work when they went to resume work after the strike was prohibited by the Government. According to Mr. Muzaffar Ahmad Khan 22 workers have resigned since then and 4 workers had already beer; removed from the employment before the commencement of the strike. The Management has so far taken back 15 workers. Two persons named in the list are not in the employ of the Manage ment according to Mr. Muzaffar Ahmad Khan. Further accord ing to Mr. Muzaffar Ahmad Khan 21 workers had resumed work after the strike had been prohibited or during the conti nuance of the strike and they absented themselves thereafter and proceedings were taken against them and they were removed from service in October 1970. Such statement does not appear in the written statement and, therefore, for the purpose of this appellation it may not be taken into consideration. The position there fore, appears to be that out of the 16 workers whom the Management had always been prepared to take back they have already taken back 9 workers. About the 7 workers the Management says that they did not report for duty in spite of the direction of this Court to report for work. Mr. Fayyaz Muhammad Azad says that he took sometime to contact these workers and it was for this reason that they want to report for work a couple days later. The name of these 7 workers are Noor Gul, Muhammad Hussain, Firdous, Muhammad Rafiq, Muhammad Naeem, Abdul Jaleel and Muhammad Din. It appears that work has been refused to them. 21 workers shown in sub‑para. 3 of para. 5 of the reply statement except the one at S. No. 70 have been refused work. The workers shown in sub‑para. 3 in para. 5 of the reply statement except those at S. Nos. 18 and 25, 19 in num bers, have also been refused work. For this view I have been reasons earlier. There is lockout in the case of above workers and continuance of this lock‑out in the case of these workers is prohibited. Mr. Muzaffar Ahmad Khan rises to say that the Management has right to proceed against the workers whom they have dismissed ex parte. The Management may proceed against the workers according to law.