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Industrial Relations Case No. 207 of 1970, decided on 27th October 1970.

-----S. 34 read with East Pakistan Employment of Labour (Standing Orders) Act (VIII of 1965), Ss. 6(5) & 9‑Strike prohibited by Government and dispute referred to L7bour Court but workers calling off strike and demanding resumption of work‑Management engaging some worker, only to set machinery into working order and other workers not allowed to resume work till machinery set in working order Intervening period, in circumstances, held, lay off period in terms of S. 6(5) read with S. 9, East Pakistan Employment of Labour (Standing Orders) Act, 1965 and lay, of benefits being granted to such other workers‑Application under S. 34, Industrial Relations Ordinance, 1969, in circumstances, held, maintainable.

. ‑This is an application under section 34 of the Industrial Relations Ordinance, 1969, hereinafter referred to as the Ordinance.

The case of the first party is that the workers of the first party Union which is a registered Trade Union and a collective bargaining agent, went on a strike with effect from 3‑3‑70 and continued the same till 19‑5‑70. The Government of East Pakistan prohibited the said strike under section 32(2) of the Ordinance and referred the dispute to the First Labour Court for adjudication, vide their Order No. 646/S‑III/1P‑11(10)/70 dated 19th May 1970. The first party Union on receiving the Government Order called an emergent Executive Committee meeting on 19‑5‑70, decided to call off the strike and demanded the workers to resume their duties with effect from 20‑5‑70. The workers of the second party factory reported for duty at 8 a. m. of 20‑5‑70. But the second party did not allow them to resume their duties and issued a notice stating therein that the factory was formally declared open with effect from 20‑5‑70 and the workers of the Maintenance Department were directed to report for duty immediately, and that a few worker could be engaged in sweeping and cleaning work to bring the factory in normal working condition. It was farther mentioned that the production would be resumed with effect, from 1‑6‑70 and accordingly workers were directed to join their duties on 1‑6‑70. Nothing was however, mentioned in the notice regarding payment of wages to the workers for the period from 20‑5‑70 to 31‑5‑70. So the first party wrote a letter to the second party demand wages for this period to which the second party replied denying payment to those who were not allowed to work since 20-5‑70. The first party now prays that as the workers were not allowed to work in between 20‑5‑70 and 31‑5‑70 according to the choice of the workers, they are entitled to lay off benefit as per section 9 of the East Pakistan Employment of Labour (Standing Orders) Act, 1965 which will be hereinafter referred to as the Act.

The second party contested the case and submitted written statement in which they stated that the application was not maintainable and that there could not be any claim for lay off benefits. It was stated that the strike continued for about 80 days and the machineries had been badly affected due to rain, storm, non‑attendance, etc., and thus they became non‑workable for want of repairing, cleaning, oiling, greasing and other necessary works. So for bringing back the machineries to normal working condition it was necessary to get sometime and for that matter the Management made an arrangement only to engage some workers of the maintenance department and directing other workers to resume their duties with effect from 1‑6‑70. This is a circumstance, beyond the control of the Management and it was generated from the unusual strike. Hence the Management was not responsible for this and as such, they are not bound to give them any lay off benefits. The workers have been doing their work since 1‑6‑70. The Management took only 10 days time for doing the necessary maintenance work which was caused by the closure of the factory due to strike.

Points for determination:

(1) Whether the application is maintainable

(2) Whether the workers are entitled to receive any benefit as claimed by the first party Union

Points 1 and 2.‑‑The application has been amended as per order No. 4 dated 8‑10‑70. It transpired during hearing of the case that the factory remained closed for about 80 days for strike resorted to by the workers. It is quite possible that during this period for at least 3 months the machineries became temporarily unworkable due to stoppage of the work and lack of running of the machines. So it was natural that sometime would be required for greasing, oiling, repairing, etc. of the machineries and the explanation offered by the second party is quite acceptable. It appears that the first party also appreciated the situation. But they claimed that the second party should have kept the, machineries in order during the period and if they could not have done it, they should have given the lay off benefits at least. It must be held that the workers are the live force of the factory and without them the machineries made of iron and steel cannot remain in perfect order. In view of this it is quite natural that sometime would be necessary to bring the machineries to their normal running condition. The second party has availed of this opportunity, They could not have engaged other workers daring the strike to run the factory or to keep the machineries in order due to non- use of the same. In that case, there would have been a howl of protest and another case would have been created. So it seems that this case comes under section 6 of the East Pakistan Employ ment of Labour. (Standing Orders) Act, 1965 as the machineries remained idle for factors beyond the control of the Management. It appears from a careful perusal of the said section that the provisions of subsection (5) of section 6 would be applicable in the present case and the employer should give lay off benefits as per section 6(5). This position should have been clarified by the Management earlier at the first instance in the notice. Be that as it may, now it appears that it has been a situation which developed due to the protracted strike resorted to by the first party Union and that the situation was beyond their control, Even then the Management technically speaking, should have been able to open the factory as soon as the strike was prohibited. As I can find no other provision to cover this gap, during which period work was stopped as explained above, I find that sub section (5) of section 6 of the Standing Orders Act would be applicable in the present case. In that view, it appears that the second party is required to give lay off benefits as per sec tion 6(5) read with section 9 of the Standing Orders Act, 1965.

As about the maintainability of the application it agars that this application is maintainable since this benefit is guaran teed to the workers as bier section 6 read with section 9 of the Standing Orders Act, 1965 and that the Union which was admittedly the collective bargaining agent already raised a dispute to the second party and that the second party also replied to the same. This was further in continuation of the strike situation 'and hence it should be deemed to be in continuation of that proceeding even otherwise. For all these reasons I find that the present application is maintainable.

My award, therefore, is that the workers of the first party Union should be given lay ‑off benefits as per section 6(5) read with section 9 of the East Pakistan Employment of Labour (Standing Orders) Act, 1965. The amount shall be calculated in each individual case in consultation of the pay roll, etc. by the second party and the benefit should be paid to the individual k workers concerned, within 30 (thirty) days of passing this award.

I have consulted the written opinion of the members while giving the above award.

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