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Application No. 51 of 1971, decided on 17th September 1971.

Ss. 34 & 45‑ Employees' Union having resorted to strike and Management's appli cation under S. 34 seeking determination of nature of strike as illegal pending before Couri‑M4nagement prating prohibition of strike under S. 45 on plea that strike was not commenced imme diately after failure of conciliation proceedings‑‑No time limit, held, laid down for proceeding on strike‑Application, in circum stances, rejected.

Masood Mirza for Applicant.

Muhammad Shafique Qureshi for Respondent.

‑The applicant‑Management has filed Application No. 579/71, under section 34 of the Industrial Relations Ordinance, 1969, pleading that the respon dent‑Union has instigated the workers to resort to illegal strike since 2nd September 1971. In that application they have prayed this Court to determine the nature of strike. In this application under section 45 the applicant‑Management prays for a direction to the respondent‑Union to discontinue the strike which according to them is illegal.

Mr. Masood Mirza appears for the applicant‑Management. His contentions are as follows:‑

(a) The conciliation proceedings failed on 20th August 1971, and the respondents did not proceed on strike until 2n3 September 1971.

(b) The strike has not been resorted to in pursuance of the demands contained in the strike notice, dated 27th July 1971. Instead it is directed at forcing the Management to agree to make a joint application to the Court for adjudication.

Mr. Muhammad Shafique Qureshi, appears for the respon dents. His contentions are as follows

(a) The workers proceeded c n strike after observing the provisions of law.

(b) It is correct that the conciliation proceedings failed on 20th August 1971, but the workers wanted to avoid to proceed on strike in view of the political and economic situation of the country and they were constantly persuading the Management to refer the matter to the Court for adjudica tion.

(c) The application under section 34 is not maintainable.

(d) If the continuance of the strike is prohibited the demands of the workers for bonus will be thrown away without any adjudication at all.

At the time of arguments I asked Mr. Masood Mirza as to why the Management is not willing to make joint application to the Labour Court for adjudication and his reply is that it was his right to come to the Court or not. He added that the dispute has to be deemed to have ceased to exist when the workers did not proceed on strike immediately after the failure of the conciliation proceedings.

It is correct that it is not obligatory on the applicant Management to agree to joint application to the Labour Court but if the law places discretion in a party that discretion has to be exercised. unless there are good reasons for not exercising it. At the moment I cannot say that the failure of the respon dent‑Union to proceed on strike immediately after the failure o the conciliation proceedings will mean that the dispute had ceased to exist. There is nothing in law to hold this view nor has there been prescribed any time limit for proceeding on strike. The time lag depends on the individual case and that can be determined only after the production of evidence.

The position at the moment is that the applicant‑Manage ment does not want to exercise discretion to come to the Court for adjudication. At this stage it cannot be said that the strike resorted to by the workers is illegal. I have no reason to prohibit the continuance of the strike and in this view of matter this application is rejected.

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