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Applications Nos. 19 and 55 of 1971, decided on 6th August 1971.
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---Ss. 34 & 45 read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. O. 13‑Retrenchment due to paucity of raw material‑Management resorting to retrench ment without following procedure laid down in Ss. 25 & 26, Indus-trial Relations ordinance, 1969 and without any notice though prepared to pay one month's wages its lieu of notice‑Management, in circumstances, held, exercised its right of retrenchment under S. O. 13, West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 in a male fide manner and case, one of lock‑out, and not termination simpliciter ‑ Such wrongful termination of service, held, can be challenged under S. 34, Industrial Relations Ordinance, 1969 and application under S. 43, Industrial Relations ordinance, 1969 seeking prohibition of lock out, in circumstances, accepted.
Muhammad Majeed Jeelani for Applicant.
Abdul Hafeez for Respondent.
‑Applicant Muhammad Rafiq, General Secretary of the Haroon Industries Employees Union who are the Collective Bargaining Agent in the respondent Establishment, has filed an application under section 34 of the industrial Relations Ordinance, 1969, against the alleged illegal lock‑out resorted to by the respondent in the garb of terminating the services of 98 workers.
Through this application under section 45 of the Industrial Relations Ordinance, 1969, the applicant wants me to prohibit the continuance of the lock‑out.
Mr. Mohammad Majeed Jilani appears for the applicant. His contentions are as follows :‑
(a) The termination of the services of 98 workers is merely a cloak to cover the illegal act of rock‑out.
(b) If the respondent‑Management felt that some readjust ment in the number of workers was required on account of changes in the Import Policy of the Government, the respondent‑Management should have taken recourse to the procedure laid down in the Industrial Relations Ordinance, 1969.
(c) The hot haste in which the services of these workers were terminated shows male fide intention.
Mr. Hafeez for the respondent‑Management replies as follows :‑
(a) The retrenchment was forced on account of the change In the Import Policy of the Government and this was a termination simpliciter.
(b) Once the termination takes place, there is no question of lock‑out.
(c) In an application under section 45 or 34, It cannot be decided whether the termination was proper or not.
The manner in which the services of the workmen have been terminated in this case prima facie indicate male fide intention on the part of the Management. I must presume in the Management the ordinary common sense which in this case would have led a man of ordinary prudence to foresee an Industrial dispute and in these circumstances the Management should have taken recourse to the procedure laid down by the Law. They did not adopt the procedure laid down in section 26 and they do not offer any explanation for the omission. The conten tion of Mr. Hafeez, that the termination was imminent has not appealed to me because the Management has gone to the extent of offering one month's pay in lieu of notice to the workmen. They could have conveniently given them one month s notice and throughout the problem.
The contention of Mr. Hafeez, that the question of termina tion cannot be gone into in an application under section 34 of the Industrial Relations Ordinance, 1969, has no weight. If the services of workmen have been wrongly terminated, he has a forum here to pursue his remedy.
To me, prima facie it appears that the services of the workmen have not been terminated after observing the provisions of Law. There are 2 modes in which the termination of services may be affected :‑‑
(I) By giving the workmen one month's notice.
(II) By giving him one month's pay in lieu thereof.
It is admitted before me that in this case no notice was given to the workmen. It has not been shown to me that the workmen have been paid one month's wages in lieu of notice. Prima facie, I will hold that the services of the workmen cannot be deemed to have been terminated.
Mr. Hafeez further contends that in terms of section 13 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the Employer has a right of retrenchment. The existence of right itself indicates the respon sibility of proceeding in a bona fide manner and once the exercise of a right is mala fide and merely a cloak to cover any other illegality, such right cannot be said to have been exercised properly. In this case, the Management proceeded on the ground that the retrenchment was necessary on account of paucity of raw material. They expressed their readiness to pay one month's wages in lieu of notice. This device only indicates that they did not want to allow sufficient time to the parties to find a way out. The Industrial Relations Ordinance 1969 has foreseen such an eventuality and laid down a procedure in sections 25 and 25 to find out a solution. The respondent Management has not followed and as Mr. Hafeez tells has, no occasion to follow the procedure laid down in the Ordinance.
For the reasons given above, I prohibit the continuance of the lock‑out.
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