1973 P L C 104

[Sine Labour Appellate Tribunal]

Present: Inamullah Khan, Appellate Tribunal

MESSRS CAFE MILLAT

Versus

KARACHI HOTEL WORKERS' UNION

Appeal No. KAR-10 of 1972, heard on 25th August 1972.

Industrial dispute-Lock-out- Essential ingredients--Closure must be in

connection with industrial dispute or with Intention to compel workmen
to accept certain terms affecting employ ment-Mere closing of place of
employment Does not amount to lock-out-Place of employment (Hotel)
remaining closed for 3 days e due to quarrel resulting In police
interference and registration criminal case-Essential ingredients of lock-
out, in circumstances; I held, not established sad case not that of lock-out-
Industrial Relations Ordinance (XXIII of 1969).

Kadir Bakhsh Bhutto for Appellant.

Riaz Bokhari, General Secretary for Respondents.

Date of hearing: 25th August 1972.

DECISION

This is an appal against an award dated February 28, 1972, whereby the
learned Chairman of the Second Labour Court ordered that "the affected
employees are entitled to be re-instated with immediate effect." The facts
giving rise to the appeal briefly put are these. The Karachi Hotel Workers'
Union (hereinafter called the Union) made an application under section
34 of the Industrial Relations Ordinance, 1969 (herein after called the
Ordinance), on 31st December 1969. It would be useful for the
consideration of the contentions of the learned Advocate for the
appellant to reproduce the whole of the applica tion, which runs as
under:-

"(1) That the respondent named above, hereinafter referred to as

respondent, are an establishment serving as a public hotel and
there have been employed and are at present employed about 40
workmen.

(2) That in view of the position explained in para. (1) above, the
provisions of the West Pakistan Industrial and Commercial
Employment (Standing Orders) Ordinance, 1968 are applicable to
the respondent-Establishment.

(3) That out of a total of 40 workmen employed by the respondent

28 workmen had joined the applicant-Union by November 1969,
 and one of them namely Anzar Gul was elected as Chief
Representative.

(4) That the respondent, have hitherto failed to faithfully comply

with the provisions of the West Pakistan Industrial and
Commercial Employment (Standing Orders) Ordinance, 1968 and
even on repeated requests and reminders by the workmen have
not yet implemented the said law in respect of service record,
casual leave with pay, classification of workmen etc.
secured/guaranteed to the workmen under the said law, hence this
application to this honourable Court.

It is, therefore, prayed that this honourable Court be pleased to

adjudication upon the said dispute and pass an award
accordingly."

2. Alongwith the under ordinance, the Union also made an application

under section 45 of the Ordinance for ordering Messrs Cafe Millat to
withdraw the lock-out of 28 workers. The application under section 45 of
the Ordinance was dismissed for non-prosecution on 5th January1970.
The application dismissed for non-prosecution, however, was restored
and disposed of on merits on 20th April 1970. The learned Court refused
to grant the application.

3. The cast of the Management was that the workers of the Hotel did nut
stick to their job and used to leave after short employment. The Hotel
was obliged to employ new men. It would appear from the affidavit of
Haji Mamoon dated 11th August 1970, that the Management did not lock-
out any of its workers on 19th December, 1969. What happened was that
on 19th December 1969, some quarrel arose between two groups of
workers and the police challenged them under sections 107 and 117 of
the Cr. P. C. The Hotel remained closed for three day s and that the
Management did not lock-out any of its workers.

4. On behalf of the Union, 21 workers filed their affidavits: The General

Secretary of the Union, Mr. Riaz Bokhari, also filed his affidavit. It is not
worthy that out of the 21 persons, who filed their affidavits, 18 persons
were cross-examined, while as would appear from the application of Mr.
A. Majeed, for the Union, dated 13th September 1970, that 3 of the
witnesses, namely, Dawood, Sharif sad Sadiqqi were given up, as they
were not available. In the impugned order, therefore, the statement that
the Union examined 21 witnesses is not factually correct. This fact
however is not important.

5. On the other hand, the 'Management examined Mohayuddin, one of

the Partners of the Hotel.

6. The learned Court relying on the statement of the witnesses produced

by the Union, came to the conclusion that they were locked out and
ordered their re-instatement.

7. The operative portion of the order of the learned Court reads as

under:-
 "Since evidence has come on record to show that the respondents
had locked out the workers without any notice or without recourse
to legal procedure, the affected employees are entitled to be re-
instated with immediate effect."

8. The order, it may be said at once, is not quite clear. Does the order
mean that all the 28 persons, who were alleged to have been locked out,
are to be re-instated or only those who appeared before the Court, i.e. 18
persons? On the face of it, those who did not appear before the Court
would not be entitled to re-Instatement. Mr. Riaz Bokhari, the General
Secretary of the Union, it appears from the record was not cross-
examined. There is nothing in the Order Sheet to show why he was not
produced for cross-examination by the Union.

9. Mr. Kadir Bakhsh Bhutto, the learned Advocate, who appeared for the
appellant, contended in the first place that the Written Arguments were
filed in December 1970 and 27th March 1971 was fixed for orders. The
order, however, was pronounced on 28th February 1972. Die learned
Advocate contended that this long delay of about a year vitiates the
award. There is no fore in this contention. In the first place, the Court
being over-worked could not dispose of the application earlier. In the
second place, the learned Advocate was entitled to urge all the points
before the that he could urge before the learned Chairman of the Labour
Court. I have allowed him to do so.

10. In the second place, the learned Advocate contended that the Union
could not be granted relief for which it did not pray. In short, the
contention of Mr. Bhutto was that In the absence of any plea of lock-out
in the application under section 34 of the Ordinance, the learned Court
had acted with out jurisdiction In granting the relief for re-instatement to
the employees. , Them is much force in this contention. On a perusal of
the application, which I have already reproduced in para. 1 of my order,
it would appear that the case of the Union was that the Management was
not complying with the provisions of the West Pakistan Industrial and
Commercial Employment (Standing Orders) Ordinance. 1968 and that it
should be ordered to comply with the same. There is no allegation of
lock-out on the part of the Management and therefore, the question of re-
instatement of workmen did not arise.

11. In the third place, it was contended that the Union had failed to make
out a case of lock-out. In this connection, it was urged that had the
Management locked out its workers on 19th December 1969, as alleged
by the Union, the Union would have approached the Labour Directorate
or at any rate, would have disclosed this fact prominently in its
application of 31st December 1969. It is further stated that the plea of
lock-out Is only an afterthought. What actually happened was that there
was quarrel between two groups of workmen on 19th December 1969,
which resulted in criminal case under sections 107 and 117 of the Cr. P. C.
The police bad arrested some of the workmen ton the same day, i.e. on
19th December 1969. The Hotel 'remained closed for 3 days. Many of the
workmen because of this trouble and police interference did not like to
work. The plea of lock-out appears to be only an after thought. According
to A. W. 18, Saeed who was Second Cook in Cafe Millet, Seth had slapped
one Shahji and picked up a quarrel with him After half an hour of this
quarrel the police came and arrested some of the workmen. As some of
the work men had been arrested naturally they could not attend to their
work. It cannot be, therefore, said that those workmen, who were
arrested and could not come to the work, had been locked- out by the
Management.

12. The case made out by 17 of the workmen in their affidavits, as would
appear from paras. 1 to 7, which is common to all the affidavits of 17
witnesses, that the Management had locked them out because they had
become members of the Union. The relevant paragraphs run as under:-

"(1) That I was employed in the Establishment of Caf Millat, Liaquatabad,

Karachi as. . . . . . . . . since .
....
and am a member of the Karachi Hotel Workers' Union, Karachi since
seven months.

(2) That annoyed and displeased the Management did not take me on
work from 19th December 1969 though I was entitl ed to be taken on my
duty."

13. The other statement which is common to all the 17 affidavits of the
workmen is as under:-

"That the Hotel Management did not take me on duty and so

capriciously and in fact instituted a false case in police and which
is now subjudice before the Magistrate."

14. It is clear from the above statement of 17 persons that they were all
involved in police cases by the Management. In fact they were implicated
in Criminal cases by the Management. It would not be unreasonable to
infer that they did not come to work on their own. On the other hand, it
does not appear from the affidavit of Mr. Riaz Bokhari, dated 11th March
1970, that the Management had locked-out 28 workmen not because they
were members of the Union or because of the quarrel, which took place
on 19th December 1969. The affidavit of Mr. Bokhari dated 11th March
1970 does not disclose any particular reason for lock-out on 19th
December 1969. The relevant paragraphs of the affidavit are 5 and 6.
They run as under:-

"That as per the term of the settlement dated the 27th November
1969, which is in force it was undertaken that no worker will be
victimized on account of strike and they will be permitted to
resume work.

That the twenty-eight workmen who were the workmen

concerned and have the protection of settlement were arbitrarily
not admitted to duty on and after 19th December1969."

15. The burden to prove that the Management had locked out these
workmen lies heavily upon the Union. It must clearly allege the
circumstances In which the lock-out took place.

16. At any rate lock-out means:-

 "the closing of a place of employment or part of such place, or the
suspension, wholly or partly, of work by an employer, or refusal,
absolute or conditional, by an employer to continue to employ any
number of workmen employed by him, where such closing,
suspension or refusal occurs in connection with an industrial
dispute or intended for the purpose of compelling workmen
employed to accept certain terms and conditions of or affecting
employment."

16. It is not mere closing of a place of employment which among to lock-

out. The closure must be in connection wit an industrial dispute or is
intended to compel workmen t accept certain terms affecting
employment. The Union, has failed to establish either of the two
ingredients of lock-out.

17. I for the reasons given above, allow the appeal and set aside the
award of the learned Court dated 28th February1972.
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