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Appeals Nos. LHR‑269, 271, 272, 273, 295 to 297 of 1985, decided on 21st January, 1986.

‑‑‑Settlement‑‑Publication of‑‑Not necessary.

‑‑‑ Settlement‑‑Challenge against‑‑Curtailment of any legal right of workers is not a cogent ground for challenge.

‑‑‑Ss. 2 (xiii), 26 & 39‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 11‑A‑ Settlement‑‑Closing mills under Settlement‑‑Pre‑requisite for a settlement‑‑Existence of industrial dispute relating to employment, non‑employment terms of employment or conditions of work of employees‑‑Settlement arrived at between employer and Workers Union (C.B.A.) for closing mills in connection with dispute with a third party without any dispute between employer and employees is neither recognised by law nor binding upon workers‑‑Proper course in circumstances, held, would be to seek permission of Labour Court under S.O. 11‑A.

Sami Hayat for Appellant.

Zafar Malik for Respondents.

Date of hearing: 14th January, 1986.

The seven appeals captioned above arise from the decisions, dated 84‑1985 recorded by the learned Presiding Officer, Punjab Labour Court No. 3, Lahore at Ferozewala, whereby the grievance petitions of Taj Muhammad, Rao‑e‑Dad Khan, Murad Ali and Bashir Ahmad (hereinafter to be called as the respondents Nos. 1, 2, 3 and 4 respectively) were accepted and they were directed to be re‑instated in service. Respondents Nos. 1 to 3 have in their appeals claimed back benefits, whereas Okara Textiles Limited (hereinafter to be described as the appellant) has challenged the direction of re‑instatement of all the respondents. As common questions of fact and law are involved in the seven appeals, they are being disposed of together through this single judgment.

2. On 2‑5‑1982 the Mills were closed on account of a dispute with Enemy Property Board. A settlement was arrived at between the management and C.B.A. copy of which is Exh.R.3, according to which, certain benefits were agreed to be paid and for nine months the Mills was to remain closed. It was also inter alia agreed that the management would be the sole judge to determine the number of employees required to run the Mills on its re‑opening. The Mills were re‑opened on 1‑2‑1983 and certain employees were allowed to resume duty but the respondents were not given duty. The respondents, therefore, lodged grievance petitions.

3. So far as respondents Nos. 1 and 2 are concerned, they urged in clear words in their grievance petitions that on the re‑opening of the Mills they were refused duty. So far as Murad Allis concerned the careful reading of the pleadings reveals that her too was refused duty. In para No. 4 Murad Ali, respondent No. 3 urged that when on 1‑2‑1983 the Mills was re‑opened a list was found affixed on the gate which contained his name also and it was to the effect that the services of the persons named therein had been terminated with effect from 2‑5‑1982. In para. No. 5 it is said that upto 2‑4‑1983 no intimation of any kind was given to him. In para. No. 7 it is contended by the said respondent that his Khata was running since 4‑4‑1983 but he was not taken on duty. The fact that the name of Murad Ali, respondent, was in the list, dated 1‑2‑1983 of the workers whose services were alleged to have been terminated with effect from 2‑5 1982 shows that he was not given duty on that date. What is said in para. No 7 shows that even from 4‑4 1983 the said respondent was not put to duty. He did not say in his statement that on the re‑opening of the Mills he was given duty. Exh.P.2 notice was produced by the said respondent himself and it too shows that he was not given duty on the ground that his section had been permanently closed. it is argued that since the respondents were not given duty by being re‑instated in service on the re‑opening of the Mills so no fresh grounds of termination of services were to be given and the provision given in settlement as to the strength of workers was sufficient. So far as original order of termination is concerned, it is contended that it cannot be challenged since in the settlement it was agreed that the workers would resign and who would not resign his services would stand terminated. The respondents had accepted the execution of the settlement copy of which is Exh.R.3, and have described it as illegal on the grounds that it adversely affected their rights, that it was not published, and that the dispute of the appellant was with the Board of Enemy Property and A not with the workers. Publication of a settlement is not necessary. Learned counsel for the respondent has not cited any rule or law in this respect. This is not a cogent ground to challenge the settlement that it has taken away or curtailed any legal right of the workers. A person can agree to forego his right guaranteed to him by any law. It has been argued that the copies of the settlement were not sent to the conciliator and the Government. The reply of the learned counsel for the appellant is that this is a question of fact and since it was not raised in the pleadings, at the appellate stage it cannot be raised. But in one case R.W.1 admitted that the copies were not sent. The settlement has been attacked by citing 1975 P L C 85 and arguing that the names and the designations of the persons who signed the settlement are not given. In case from which the ruling cited above emerged thumb impressions were affixed and not signatures. For thumb‑impressions it is necessary that it should be indicated to whom they belong. In the present case the executants of the settlement from both sides put their signatures. Apart from it neither the union nor the management, nor the persons whose signatures appear on Exh.R.3 challenged the document and disowned their signatures.

4. However, this fact is very material that there was no dispute between the management and the workers or the C B.A. In all the grievance petitions it is contended that the dispute of the management was with the Enemy Property Board. The nature of the dispute has not been disclosed by any of the parties. A legal and effective settlement can come into existence if an 'industrial dispute' exists. This condition is pre‑requisite. The term industrial dispute' is defined in section 2(xiii) of the Industrial Relations Ordinance 1969. According to the definition, the dispute must relate to employment, non‑employment, terms o employment or the conditions of work of any person For ready reference the definition is reproduced below: ‑

"'Industrial Dispute' means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is concerned with the employment or non‑employment or the terms of employment or the conditions of work of any person."

The allegation of the respondents that the dispute of the appellant was with the Enemy Property Board has not been controverted in the written statement or in evidence by the appellant. So this is an admitted fact. A dispute with regard to employment, non‑employment, terms of employment or conditions of work can be between the employers and the workers and by no stretch of imagination it can be said that such a dispute of the employer can be with a third party. Even if it be said for the sake of arguments although this is not the case of any of the parties that the dispute of the appellant with the Enemy Property Board was with regard to employment, non‑employment etc. of the workers, such a dispute is not recognized by law as it is not covered by the definition according to which, dispute should be between the employer‑s and the workmen. For settlement, existence of industrial dispute is a must. Section 26 is clear. It says, "If any time an employer or C.B.A. finds that as industrial dispute has arisen or is likely to arise". As the dispute of the appellant was with the Enemy Property Board and the nature of the dispute is unknown, it cannot be said that there was any likelyhood of the arising of any dispute with the workers in connection with their employment, non‑employment etc. on 2‑5‑1982 when the Mills was closed if at all there was any dispute it was to be communicated by the appellant either to the works council or to the C.B.A. Since no such communication was made, no attempt to settle the dispute was made before closing the Mills. The next step is that if no settlement is made, then either the C.B.A. or the employer has to give strike notice or notice of lock out, as the case may be. The conciliator tries to bring about a settlement. If he too fails, then attempt is made to refer the matter to arbitration and if this attempt also fails, then strike or lock out is adhered to but in the present case without following the procedure mentioned above, the appellant closed the Mills, obviously, this was quite illegal. After an illegal strike or illegal lock out, no valid settlement can come into existence. It was in reality a catastrophe as contended in the written statement the proper procedure was to apply to the Labour Court under Standing Order 11‑A for permission to close the Mills. Such an application had been given but it was withdrawn. The right course was stopped after the coming into existence of agreement, which is being called a settlement. So, the agreement is not a settlement in the legal sense and this does not bind the workers In section 39 it is said that a settlement arrived at otherwise during conciliation proceedings is binding on the workers if one of the executants is the C.B.A. But it does not say that if settlement has been made with and the existence of an industrial dispute, f it is binding upon the workers. Proper thing was to pursue the application given under section 11‑A and to try to get permission from the Court even after the Mills had been closed before it was re‑opened.

5. Since the settlement is not legal, the legalization by it of the closure of factory on 2‑5‑1982 itself is of no legal effect. The terms of the settlement, therefore, are not binding upon the respondent.

6. So far as back benefits are concerned, Taj Muhammad, Roe‑a Dad Khan and Murad Ali, respondents, are entitled to the same from 2‑5‑198 to 22‑1‑1983 only when the orders of their termination from service were passed as uptil 22‑1‑1983 they were in service but remained laid off. From 23‑1‑1983 onward they could claim back benefits if they had asserted that they during the said period remained jobless and they did not assert so.

7. As a result, the appeals of the appellant are dismissed and the appeals of Taj Muhammad, Roe‑e‑Din Khan and Murad All are partly accepted and modifying the impugned decision of the learned lower Court. They are allowed back benefits from the period from 2‑5‑1982 to 22‑1‑1983 only.

A. E.

Orders accordingly.

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