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Appeal No. OK-657 of 1985, decided on 21st January, 1986.
---Ss. 2(xiii) & 39(1)(d)--West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 11-A- Closure of Mills--Settlement--Dispute with third party not connected with employment, non-employment or terms of employment of workers- Management in order to settle dispute arriving at settlement with C. B. A. of workers to close Mills--Effect of settlement--Real question, in circumstances, held, was that there was no industrial dispute giving rise to a settlement and proper course for management was to seek permission of Labour Court to close Mills.
Malik Muhammad Asghar for Appellant.
Shaukat Mahmood for Respondent.
Date of hearing: 20th January, 1986.
The decision, dated 1-2-1985 recorded by the learned Presiding Officer, Punjab Labour Court No.3, Lahore at Ferozewala dismissing the grievance petition of the appellant for declaration that his order of termination, dated 2-5-1982 was illegal and he is entitled to wages from the date upto 3-10-1983 when he was re-employed.
2. The facts are that on account of a dispute with the Enemy Property Board the respondent closed the Mills on 2-5-1982 without permission of the Court and without previous notice to the C.B.A. or the employees. On 6-1-1983 a settlement was arrived at between the management and the C.B.A., copy of which is Exh.R.6 and the Mills was reopened on 1-2-1983. An application for permission to close the Mills was lodged under Standing Order 11-A after closing the Mills, but after the settlement was executed it was withdrawn. The case of the respondent is that as the closure was legalised by the settlement, the services of the appellant were rightly terminated with effect from 2-5-1982 and he has no cause to claim wages from the said date.
3. It has been argued by the learned counsel for the appellant that as the settlement was not made during the conciliation proceedings, it is, according to section 39(2) of the Industrial Relations Ordinance, 1969, not binding upon the workers and is binding upon the executants only. The argument is wholly misconceived. Section 39(1) (d) says that where the C. B. A. is one of the parties to the settlement, it will be binding on all the workers. It is said that according to settlement will be binding even if it has not been arrived at during conciliation proceedings. The real question which arises in this case is that no industrial dispute was existing nor was likely to come into existence at the time the Mills was closed. Dispute of the respondent was with the Enemy Property Board and not with the C.B.A. or the workers. The industrial dispute is defined in section 2 (xiii) of the Industrial Relations Ordinance, 1969, according to which, difference between the employer and the workmen with regard to employment, non-employment, terms of employment or conditions of work, constitutes an industrial dispute. Since the dispute was between the respondent and the strangers namely Enemy Property Board, the nature of which too is not known, it cannot be said that any industrial dispute had come into existence. Again a dispute about employment, non-employment etc. can be with the workers or the C. B. A. and not with any stranger. For ready reference the definition of Industrial Dispute 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, non-employment or the terms of employment or the conditions of work of any person.
The respondent may have settled the dispute with the Enemy Property Board out of Court or may have sued it but closure of the Mills was not a remedy. C. B. A. or the workers could be least responsible for the said dispute. If there was in reality any catastrophe as urged in the evidence by the respondent and in reality the remedy was the closure of the Mills, proper step was to get permission under Standing B Order 11-A of Standing Orders Ordinance, 1968. The respondent did apply for permission but under the wrong advice withdrew the petition instead of pursuing it upto the last. In the written statement and in evidence the respondent did not contend that there was any dispute with the C. B. A. or the workers and that the same involved the question of employment, non-employment, terms of employment or conditions of work.
4. It has been argued that the termination of the services of the appellant was illegal for this reason also that his juniors namely Safdar Ali, Sharif Masih, Bashir Ahmad and Muhammad Salim were retained in service. The appellant has not given the parentage of the above-mentioned persons, so it cannot be verified from Exh.P.20 if in reality they were junior to him. Appointment letter of the appellant is Exh.R-1 but the learned counsel says that it is a forged document. There is no evidence of forgery. The name of the appellant is at No. 1392 of Exh.P.20 and date is given as 13-5-1965. It may be said that his services may have been terminated and he may have been re-employed vide Exh. R-1 on 30-12-1970. So there is no sufficient material to express any final opinion on this point.
5. So far as back benefits are concerned, the appellant asserted that he remained jobless from 2-5-1982 to 3-10-1983, so he is entitled to the same.
6. As a result, the appeal is accepted and setting aside the impugned decision of the learned lower Court, the appellant is directed to be paid his wages from 2-5-1982 to 2-10-1983.
A. E.
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