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Petition No. QSA‑209 of 1983, decided on 14th September, 1983.

‑‑S. 46‑A ‑ Termination from service‑Illegal lock‑out‑Orders to take back workers in service challenged before Tribunal in revision‑Existence of legal industrial dispute at relevant time not proved‑No question of illegal lock‑out‑Impugned order set aside and report under S. 46‑A rejected. [p. 841]A

M. S. Bokhari for Petitioner.

Ejaz Hussain for Respondent No. 1.

Arif Hussain Shah with M. A. Hamid Awan for Respondent No. 2.

Date of hearing : 12th September, 1982.

The revision captioned above is directed against the order, dated 4th July, 1983 passed by the learned Presiding Officer, Punjab Labour Court No. 3., Lahore at Ferozewala, whereby the report made by respondent No. 1 under section 46‑A of the Industrial Relations Ordinance, 1969 was accepted and declaring the orders of termination from service, dated 19th May, 1983 as illegal lock out, the petitioner was directed to lift the lock out and take back the 58 workers in service.

2. This is not very much disputed that termination orders of 58 workers were actually issued. According to the respondents, the termina tion was in reality illegal lock out as an industrial dispute was pending and that the workers were compelled by the management to join workers and staff union, which, according to them, was a pocket union. An industrial dispute comes into being when a demand notice is served. Such a notice so far as labour is concerned, can be given by the C. B. A. as required by section 26 In the present case no C. B. A. existed at the time when the notice was served. It was given on 21st April, 1983 when there was existing only one union namely, the respondent No. 2. According to section 22 of the Industrial Relations Ordinance, 1969, membership of a C. B. A. must be at least 1/3rd of the total number of the workers. R. W. 1 stated that total number of workers according to the application filed by respondent No. 2, was 120 and list of 39 members of employees union was filed this being so the number of members fell short of I /3rd and respondent No. 2 union was certificate on the record, meaning thereby that uptil now respondent No. 2 union is not C. B. A. R. W. 1 stated that another list of 39 members was produced alongwith another application for C. B. A. by respondent No. 2 but he did not give the date of the second application. If further list of 39 members had been filed after and) staff union had been registered, then section 52 became applicable and only that union could act. as C. B, A. that had been recognised by the employer as such. Anyhow, whatever the case may be P. W. 4 Assistant Director admitted that none of the two unions had C. B. A. certificate. As admittedly respondent No. 2 union had no certificate of C. B. A., nor had been recognised as such by the employer under section 52 of the Industrial Relations Ordinance, 1969 no legal industrial dispute came into existence. There being in existence no indus trial dispute, no question of illegal lock out arises. According to the definition of lock out, existence of industrial dispute is necessary. The definition reads as under :‑

"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 workman employed by him where such closing, suspension or refusal occurs in connection with an industrial dispute or is intended for the purpose of compelling workmen employed to accept certain terms and condi tions of or affecting employment.

According to the definition, closure for compelling the workers to accept certain terms and conditions of or affecting employment also amounts to lock out joining or having connection with a particular union does not in any manner affect the employment. A worker may not be a member of any union, still he will be an employee. Asking or compelling a worker to join a particular union may amount to unfair labour practice but it cannot be said that its affects the employment. The phrase "certain terms and conditions of or affecting employment" refer to terms and conditions of service and manifestly becoming a member of any union has not even a remote connection with conditions of service. So, the termination of service for not becoming member allegation of respondent No. 2 that the workers were asked to join workers and staff union does not stand established as a vague statement has been made on behalf of respondent No. 2 in this respect. It has been said that the management had asked the workers to join workers and staff union. The names of the members of the management were not disclosed. Such a vague statement should not have been believed by the learned lower Court. As no person was named, the petitioner was prevented from putting such a person in the witness‑box to deny or controvert this piece of evidence. I consequently disagree with the learned lower Court that this is a case of illegal lock out. It is a case of termination of services and if the workers concerned thought that the termination was not legal, they may have challenged the orders under section 25‑A of the Industrial Relations Ordinance, 1969.

3. As upshot of the observations made above, I accept the revision and setting aside the impugned order of the learned lower Court, reject the report made under section 46‑A of the Industrial Relations Ordinance, 1969.

M. I.

Revision accepted.

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