1970 PLP 336 (PLC)

2. The Kohinoor Silk Mills Workers' Union, through its General Secretary, made an application under section 34 read with section 45 of the Ordinance on 6th January 1970, before the learned Chairman of the First West Pakistan Labour Court, stating therein that the Union, had sent a Charter of Demands to the respondent‑Management for its consideration. On 5th January 1970, the workmen went to the Mill, but they were locked out through a notice pasted at the gate of the Mill. It was stated that the lock‑out was against the provisions of the Ordinance and was designed to coerce the workmen to drop their demands. It was prayed, on these facts, to prohibit the continu ance of the, illegal lock‑out and to grant full wages for the period of the illegal lock‑out. There was also a general prayer to grant such relief as the Court deemed proper. . The Management cate gorically denied to have received any Demand Notice dated 3rd January 1970, and stated that it was obliged to terminate the services of its workmen because of financial difficulties and that the decision to terminate the services of the workmen was taken as late as on 31st December 1969. A letter to that effect was sent to the Joint Director, Labour Welfare, seeking his permission to terminate their services because of financial difficulties.

3. The learned Chairman, after considering the contentions of the parties; came to the following conclusion:-- "The present application is, therefore, clearly mala fide and the question of illegal lock‑out does not arise. The lock out was properly so declared. The application is accordingly dismissed." 4 The Mill admittedly has two sections, one is Weaving Unit and the other Dyeing and Finishing Unit. It received a notice from the Habib Bank Limited on 27th December 1969, informing it that further financial accommodation could not It be acceded to as it had failed to adjust the existing advances as per arrangement with the Bank. The Bank then requested to adjust the loan of Rs, 10,40,000.00, which was already running in excess of the Limit granted by the Bank to the extent of Rs. 84,000.00. The Mill because of this difficulty had to close one section of the Mill, namely, the Weaving Section. According to the respondents, 104 workmen were affected by closing of the Weaving Unit, while according to the appellants, 115 workmen had to lose their jobs. It was submitted on behalf of the respondents, which has not been denied, by the other side, that 93 workmen of the Weaving Section have received their dues.

5. I will now proceed to dispose of the appeal on merits. A preliminary objection has been taken by Mr. Mahmood A. Ghani, the learned Representative for the respondents, that no appeal lies. In this connection, reference had been made to section 37 of the Ordinance. Under section 37 of the Ordinance, clear distinction has been made between decisions and awards. An appeal has been provided only against awards and not against decisions. The framers of the Ordinance have drawn a distinction between decisions and the awards. That this is so is clear from subsections (3) and (4) of section 37 of the Ordinance. They run as under:‑ "(3) Any party aggrieved by an award given under sub section (1), may prefer an appeal to the Labour Appellate Tribunal within thirty days of the delivery thereof and the decision of the Tribunal in such appeal shall be final. (4) All decisions of a Labour Court, other than awards referred to in subsection (3) of this section, and sentences referred to in subsection (3) of section 36, shall be final and shall not be called in question in any manner by or before any Court or other authority."

6. The accepted position is that a decision under section 34 of the Ordinance would be an award, while that under section 45 of the Ordinance would be a decision. Mr. Ghani, the learned Representative for the respondents, contended that the order passed by the learned Court was only a decision, inasmuch as it refused to prohibit continuance of the lock‑out. In this connection, Mr. Ghani also submitted that the application was primarily an application under section 45 of the Ordinance, inasmuch as, no prayer was made in respect of any dispute between the parties covered by section 34 of the Ordinance. There is much force in the contention of Mr. Ghani, but as no objection was taken by him before the learned Industrial Court that the application under section 45 of the Ordinance was no maintainable as an application under section 45, pre‑suppose the pendency of an application under section 34 of the Ordinance or at least that an application under section 34 of the Ordinance has been made, I would not entertain this objection and hold that the appeal is maintainable. The application being under section 34, as well as of section 45 of the Ordinance, if an objection was taken by the other side that there was no valid application under section 34 of the Ordinance, It was open to the Union to have either withdrawn the application and made another application or may have asked for amendment of the application so as to make a specific prayer asking for a relief within the meaning of section 34 of the Ordinance. At any rate, as .I am of the view that it is not necessary under the Ordinance to make two separate applications, one under silk, section 34, and the other under section 45 of the Ordinance, I Ltd: would take it that the Court disposed of the application under lam section 34 of the Ordinance as well. Mr. Obaidurrehman, the learned Advocate for the appellants, submitted that the decision of the Court amounts to the disposal of both the applications, namely, the one under section 34, and the other under section 45 of the Ordinance. In these circumstances, I would hold the appeal to be maintainable.

7. Mr. Obaidurrehman, the learned Advocate for the appellants, in the first place, submitted that the lock‑out was mala fide. There is no force in this submission. Mr. Obaid urrehman submitted that the workers were locked out only after the Management had received a Charter of Demands, on 3rd January 1970. On the other hand, the Management categorically denied to have received any Charter of Demands dated Std January 1970. It was very easy for the Union to have dis proved the assertion of the Management that they had not received any Charter of Demands by producing the Registration Receipt of the despatch of the Charter of Demands. The Union submitted in its application that they had sent the Charter of Demands through Registered Post. I would hold, in the absence of any good evidence, that the Management had not received the Charter of Demands; as alleged by the appellants, dated 3rd January 1970.

8. In the second place, it was submitted that under the Settlement arrived at between the Management and the Union on 18th March 1969, the Management was bound to consult the Workers' Representatives before retrenching the workers. Mr. Ghani, the learned Representative for the respondents, candidly accepted that in fact it was executed by the parties on 18th March 1969. Para. 15 of the agreement reads as under:‑ "Management when deciding to retrench workers who are permanent will do so with the consultations of the workers' Representatives."

9. The short question is as to whether it was a retrenchment as mentioned in para.15 of the Agreement or a closure of the Weaving Section of the Mill, because of financial difficulties. Para. 15, reproduced above, contemplate retrenchment of some of the workers and not closure of one section of the Mill. I have come to the conclusion that the Mill was not bound to consult the Representatives of the workers, while closing on section of the Mill.

10. Mr, Obaidurrehman, the learned Advocate for the appellants, contended relying on section 26 of the Ordinance, that the employer, namely, the respondents was bound to communicate its views to the Collective Bargaining Agent that an industrial dispute was likely to arise. In this connection, the learned Advocate submitted that the Management knew because of the Charter of Demands that was served on it, t ha industrial dispute would arise and, therefore, before taking any step to lock‑out the workers, it should have communicated its decision to the Collective Bargaining Agent. There is no much force in this submission. In the first place, as I have already held that there is not sufficient evidence to hold that any Charter of, Demands was served on the Management, dated 3rd January 1970. In the second place, the closure of the business bona fide can hardly be said to amount to an industrial dispute. In this connection, reference may be made to a Division Bench decision of the West Pakistan High Court in the case of the Colony Textile Mills Limited v. Assistant Director, Labour Welfare. (1964 P L C 605). The relevant observation runs as under:-- "It is the unqualified right of an employer to stop or to discontinue his industry at any time if he does not feel satisfied with its prospects and the Management cannot in law be compelled to continue it against its wishes. The workers have no say in the matter and they cannot object to the closure, stoppage or discontinuance of his business by the employer. Strictly speaking there cannot be any lis or dispute between the employer on the one hand and employees on the other as regards the continuance or discontinuance of the business itself and such a question is outside the purview of an "industrial dispute" within the meaning of the Industrial Disputes Ordinance, 1959."

11. It was submitted by Mr. Obaidurrehman, the learned Advocate for the appellants, that the services of the workers had been terminated against the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, inasmuch as, that none of the provisions of Standing Orders Ordinance specifically covers the present situation. The learned Advocate read out Standing Orders 11, 12 and 13 of the Standing Orders Ordinance, 1968. Standing Order 11, contemplates temporary stoppage of work, as well as for an indefinite period. In the present case, the Management had closed the weaving section of the Mill for an indefinite period. Mr. Ghani, the learned Representative for the respondents, relied on Standing Order 11(3), in support of hi contention that the termination of the services of the workers of the Weaving Section is covered by the said Standing Order. Standing Order 11(3) reads as under:-- "In cases where work‑men are laid off on account of failure of plant or a temporary curtailment or 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 third of their daily wages during the following seven days as compensation. 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 lieu thereof."

12. In the present case, the Management was of the view that they had to close a service of the Mill for an indefinite period. They were willing to pay one month's pay to the workers and other dues. Ninety‑three of the workers have already received their dues. According to Mr. Obaidurrebman, 26; workers have not yet received their dues, while according to the Management only 11 persons have not yet approached the Management to receive their pay and other dues. Whatever the position as to the number of the persons who have not yet received their dues, may be one thing is quite clear that the Management bas bona fide closed its Weaving Unit by paying off a large number of its workers their dues. It is not the case of the Union that the workers of the Weaving Section were being victimized because of their Union activities. The case of the Union, as would appear from their application under section 34 read with section 45 of the Ordinance, was tfat they had made certain demands to the Management. This surely cannot be urged to be a legitimate ground for closing the business for good. 13.No other point was urged by Mr. Obaidurrebman, the learned Advocate for the appellants.

14. For the reasons that I have already given, I dismiss the appeal.