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Petitioner: THE COLONY TEXTILE MILLS LTD., CIVIL AND MILITARY GAZETTE BUILDING, 48, THE MALL LAHORE VS Respondent: THE ASSISTANT DIRECTOR LABOUR WELFARE, (CONCILIATION), LAHORE REGION,
P L D 1964 (W
P L D 1964 (W. P.) Lahore 693
Before Muhammad Yaqub Ali and Muhammad Akram, JJ
THE COLONY TEXTILE MILLS LTD., CIVIL AND MILITARY GAZETTE BUILDING, 48, THE MALL LAHORE--Petitioner
Versus
(1) THE ASSISTANT DIRECTOR LABOUR WELFARE, (CONCILIATION), LAHORE REGION, (2) THE INDUSTRIAL COURT, WEST PAKISTAN, AND (3) ZUHAIR SIDDIQUI AND 10 OTHERS-Respondents,
Writ Petition No. 9 of 1964, decided on 3rd July 1964.
(a) Industrial Disputes Ordinance (LVI of 1959), S. 2 (h) ---"Industrial dispute"-Employees' demand that employer resume and carry on industry (Newspaper)-Not an "Industrial dispute" Conciliation Officer or Industrial Court have no jurisdiction to entertain such demand Employer free to engage himself subject to reasonable restrictions, in any lawful trade or business "Regulation" not same as compulsion to carry on industry Newspaper- non-public utility service-Question that employer be compelled to carry on or discontinue industry does not involve any lis or d0pitte between employees and employer-Object of labour legislation-To provide for social justice, etc.-Scheme of Ordinance based on assumption that there is an industry in existence.
One of the demands made by the journalist employees of a newspaper against their employer was that the company be compelled against its own wishes that it must resume the publica tion of the newspaper and that too on the same scale on which it was running in the past:
Held, that the demand that the employer should be made to resume the publication of the newspaper did not constitute an "industrial dispute" within meaning of section 2 (h), Industrial Disputes Ordinance (LVI of 1959) and that the Conciliation Authority or the Industrial Court had no jurisdiction at all to enter upon or entertain any such controversy.
Subject to reasonable restrictions a citizen has the freedom to engage himself in any lawful trade or business under the Constitution and this carries with it an equal freedom to stop and discontinue any trade or business undertaken by him. The State has the undoubted right to regulate a running industry by imposing reasonable restrictions. But regulation is one thing and the compulsion to carry on a business is something quite different. Newspaper publication is a non-public utility service and even the State cannot compel the petitioner against its wishes to continue or resume the publication of its paper after its stoppage by the company. There cannot be any real dispute between the employer and the employees as regards the continu ance or the discontinuance of the business itself. It is the unqualified right of an employer to stop or to discontinue his industry at any time if he does not feel satisfied with its prospects and the Management cannot in law be compelled to continue it against its wishes. The workers have no say in the matter and they cannot object to the closure, stoppage or discontinuance of his business by the employer. Strictly speaking there cannot be any lis or dispute between the employer on the one hand and employees on the other as regards the continuance or discontinu ance of the business itself and such a question is outside the purview of an "industrial dispute" within the meaning of the Industrial Disputes Ordinance, 1959. It cannot be said that because several employees are likely to be thrown out of service, as a result of the closure, the employer can be compelled so that he must carry on the business against his wishes. There cannot properly be any "Industrial dispute" about such a controversy if raised on behalf of the workmen. The object of all labour legislation is to provide for social justice, to look after the welfare of the workers, to safeguard fair terms for them in their employ ment and to prevent dispute between employers and employees so that production might not be adversely affected and the larger interest of the public might not suffer. These objects can be achieved in an existing industry only and not where the industry itself has closed and come to an end. The entire scheme of the Industrial Disputes Ordinance, 1959, is based on the assumption that there is an industry in existence and it goes on to devise ways and means for the settlement of the disputes between the interested parties in an existing industry. The elaborate provisions of law for the conciliation and settlement of an industrial dispute, prohibition and prevention of strikes and lock-outs, about the persons on whom settlements and awards are to be binding, the period of operation of settlements and awards have meaning only if the industry is running. These various provisions of the Ordinance lose their real significance, in an industry which is already dead.
(b) Industrial Disputes Ordinance (LVI of 1959), S. 2 (i) read with S. 2 (h)-"Lock-out"-To be distinguished from "closure" and "discontinuance of business"-Unqualified promise by employer to start a weekly newspaper after closure of a daily does not raise an "industrial dispute"-No law can compel employer to again start a business after its closure.
A "lock-out" is to be distinguished from the closure and discontinuance of business by the employer. "Lock-out" is defined in section 2 (1) of the Ordinance and it means closing of a place of employment or the suspension of work by an employer. It takes place in connection with an industrial dispute and is intended for the purposes of compelling the employees to accept certain terms and conditions of or affecting their employment. The question whether the stoppage of business was a temporary suspension of work as a mere device in the nature of lock-out or a genuine closure and discontinuance of the business, will always depend upon the number of factors and the circumstances of each case and sometime a distinction between the two may even be very thin.
The alleged breach of any promise or undertaking by the employer to start a weekly newspaper after he has closed and discontinued his daily cannot give rise to an "industrial dispute" between employer and the workmen nor can it be interpreted to be a "lock-out" by any stretch of imagination.
No law can compel the employer to start again a business after he has declared its closure.
Held, that the employees' demand for the resumption of the daily newspaper after its stoppage did not constitute an industrial dispute nor could it be regarded as a lock-out and the Conciliation Officer or the Industrial Court had no jurisdiction to entertain, settle and adjudicate upon this demand under the provisions of the Industrial Disputes Ordinance, 1959.
(c) Industrial Disputes Ordinance (LVI of, 1959), S. 2 (h)- - "Industrial dispute"-Closure of business by employer-Claims of employees re arrears of salaries, future salaries for stipulated period of employment, allowances, gratuities, etc. raise an industrial dispute within cognizance of Conciliation Authorities or Industrial Court.
Held, that the demands of employees for the payment of compensation for losses for the unexpired period of' service, arrears of salaries, allowances, gratuity, etc., due to them are covered by the definition of the term "industrial dispute" within the meaning of the Ordinance (LVI of 1959) and the Conciliation Officer and the Industrial Court have the jurisdiction to enter upon, settle and dispose of the case brought before them in accor dance with law.
The definition of "industrial dispute" [section 2 (h)] would cover all matters in controversy between the employers and workmen, which require settlement between them touching or arising out of the termination of the services of workmen and the reliefs claimed by them from their employers in that behalf. It is comprehensive enough to include the claims of workman to the reliefs which flow to him from the termination of his service and to which he may be entitled.
A dispute or difference arising out of or connected with the dismissal or removal of an employee is an "industrial dispute" within the meaning of the Ordinance.
There is hardly any doubt that the closure of an industry by the Management is subject to the rights of the workmen to which they may be entitled under law against their employer. The question of compensation for wrongful termination of their services, salaries and allowances, etc., for the unexpired period of service of a workman are intimately connected with and simultaneously arise out of the closure of the industry by the Management. Any dispute or difference over the demands for the payment of compensation due to the employees discharged or removed from service as a result of closure of the business by the employer is covered by the scope of the term "industrial dispute" within the meaning of the Ordinance. In fact without the settlement of those. claims of the workers, the closure of the industry will be incomplete and its establish ment cannot be effectively wound up without the settlement of the legitimate claims of the workers in this connection.
The India Paper Pulp Co. Ltd. v. The India Paper Pulp Workers' Union and another A I R 1949 F C 148; Vere Cornwell Bird and others v. Joseph Reynold O'Neal and another (1960) A C 907; Rex v. The National Arbitration Tribunal Ex parte Horatic Crowther & Co. Limited (1948) K B 424; Pipraich Sugar Mills Ltd. v. Pipraich Sugar Mills Mazdoor Union A I R 1957 S C 95 and Shorilal v. Second Industrial Tribunal, Punjab and another A I R 1959 Pb. 396 ref.
(d) Demands-Industry (newspaper) discontinued---Demands that can arise in case of an existing industry only-Not entertainable as subjects for conciliation proceedings-Abate altogether after termination of services of employees-(Demands: use of periodicals, library, reference books, services of peons, etc. and payment of wages before 9th of each month)-No "failure certificate can be issued in respect of such demands-Industrial Disputes Ordinance (LVI of 1959), S. 5 (4).
(e) Working Journalists (Conditions of Service) Ordinance (XVI of 1960), S. 2 (f)-"Working journalist"-Application of Industrial Disputes Ordinance (LVI of 1959)-Closure of news paper and termination of services of newspaper staff-Rights accruing to members of staff as "working journalists" may be enforced after closure in accordance with provisions of Industrial Disputes Ordinance (LVI of 1959).
M. Sleem and Ijaz Husain Batalvi for Petitioner.
S. M. Bashir, A. A.-G. for Respondents Nos. 1 and 2.
Zaki-ud-Din Pal for Respondents Nos. 3, 4, 5 and 8.
K. E. Chauhan for Respondents Nos. 6, 7 and 9 to 13.
Dates of hearing: 8th, 9th, 15th and 17th April 1964.
JUDGMENT
MUHAMMAD AKRAM, J.-In this petition under Article 98 of the Constitution of the Republic of Pakistan, the Colony Textile Mills Ltd., Lahore, has questioned the jurisdiction of the Assistant Director Labour Welfare (Conciliation), Lahore Region, Lahore, and the Industrial Court West Pakistan, constituted under the Industrial Disputes Ordinance (LVI of 1959) (hereinafter referred to as the Ordinance) to entertain, investigate and settle certain demands by respondents Nos. 3 to 13, ex-employees of the Civil and Military Gazette, who claim to be workmen by virtue of the provisions of the Working Journalists (Conditions of Service) Ordinance (XVI of 1960).
2. The Civil and Military Gazette, Lahore, was one of the leading daily newspapers in circulation in this part of the country for over a century until its publication was discontinued on the 3rd of September 1963. In 1962, the petitioner, a limited company registered under the Companies Act, 1913, acquired the newspaper establishment of the Civil and Military Gazette and took upon itself the task of printing and publishing the newspaper for the future. In the hope of improving the prospects of the paper after its acquisition by the petitioner, the Company employed respondents Nos. 3 to 13 as journalists to work in its newspaper establishment under separate contracts entered with them on different dates between October 1962 and December 1962. It was mutually agreed between the company and these journalists that during the first three years of their employment the services of respondents Nos. 3 to 13 were not liable to be terminated by the petitioner except on grounds of misconduct or unsatisfactory work and that their conditions of employment shall be regulated by the provisions of the Working Journalists (Condi tions of Service) Ordinance (XVI of 1960).
3. According to the petitioner, the Company sustained losses in this venture and the publication of the newspaper had to be stopped by it on the 3rd of September 1963. It is a common ground that after that no issue of the Civil and Military Gazette was published by the petitioner. The company, however, continued to retain the services of respondents Nos. 3 to 13. On the 18th of September 1963, the Management circulated an office order (annexure R. 3/E) by which the office hours of the staff were regulated by the company and directions were issued to the members of the staff of the company to strictly observe them. On the 20th of September 1963, the librarian under the directions of the Managing Director of the Company removed all the books from the shelves of the Acting Editor of the newspaper.
4. Respondents Nos. 3, 4, 5, 7 and 8 as the duly appointed representatives of the employees of the company sent a strike notice (annexure R. 3/F) to the company on the 20th of September 1963 protesting against the stoppage of publication of the Civil and Military Gazette. In this notice they made certain demands on the Management and it contained a warning that in case the demands of the workers were not accepted by, the Management within one week, they shall go on strike with effect from the 7th of October 1963.
5. On receipt of the strike notice respondent No. 1 started conciliation proceedings for promoting a settlement of the dispute between the parties in the exercise of the powers vested in him under section 4 of the Industrial Disputes Ordinance, 1959. In a meeting between the representatives of the parties, with respon dent No. 1 on the 8th of October 1963, the petitioner put in a written statement (annexure R. 3/H) wherein it was objected that there was no "industrial dispute" between the Management and its employees so as to confer any jurisdiction on respondent No. 1 to commence the conciliation proceedings under the Ordinance, that the publication of the Civil and Military Gazette had stopped permanently and there was not the slightest or the remote possibility for the company to resume the publication of the paper, that the establishment was closed down permanently and irrevocably for reasons unconnected with any industrial dispute or with the terms and conditions of the service of employees. The Management refused to accept the demands of the employees and averred that the services of some of the workers had already, been terminated by the Company and as regards the remaining employees although the Company was not legally bound to retain them, yet it was merely trying to honour its words and was paying them for getting no return.
6. Respondent No.l in spite of the objection of the company against his jurisdiction started his proceedings and issued a certificate of failure of conciliation proceedings on the 18th of October 1963 under section 4 (5) of the Ordinance. He has certified that the conciliation proceedings in the industrial dispute which were started before him on the 21st of September 1963 between the Management of the Civil and Military Gazette, Lahore and their workers on the issues specified in the schedule attached with the certificate, had failed on the 18th of October 1963. The schedule annexed to the certificate contains the abstract of demands, which were raised before respondent No. 1 on behalf of the workmen against the Company.
7. On the basis of this certificate of failure, respondents Nos. 3 to 13 applied to the Industrial Court, West Pakistan under section 4(5) of the Ordinance for adjudication and determination of their dispute with the company arising out of these demands. The Industrial Court on the 18th of November 1963, issued summons to the company for the 30th of January 1964 to answer all material questions relating to the matter under investigation by the Court.
7-A. This case was still pending in the Industrial Court when on the 9th of October 1963 the employees served another strike notice on the Company containing some additional demands. On this respondent No. 1 again started his conciliation proceedings, and the Company once again raised similar objections to his jurisdiction to entertain those demands and to start his proceedings. Respondent No. 1, again overruled these objections and issued another certificate of failure of the conciliation proceedings on the 21st of December 1963 (annexure `D').
8. In the meantime the petitioner by its letter dated the 19th of December 1963 (annexure `C') addressed to respondents Nos. 3 to 13 informed them that their agreements of service with the company had become incapable of performance due to the closure of the newspaper establishment for reasons beyond their control and that from the date of the closure they had ceased to be in the service of the Company and were not entitled to receive any salary or other emoluments from the Management and further that they were not expected to attend the office or other establish ment under the control of the Company. In this notice the Management, however, expressed its readiness to amicably settle with them their claim for reasonable compensation due to them for this premature termination of the contracts for the reasons beyond their control. On receipt of this notice respondents Nos. 3 to 13 applied under section 29 read with section 30 of the Ordinance to the Industrial Court for suitable action against the Company for illegally terminating their services to their prejudice during the pendency of the industrial dispute without the permis sion in writing of the Conciliation Officer or the Court.
9. These disputes between the parties were still pending in the Industrial Court and the petitioner on the 3rd of January 1964 filed this writ petition against the respondents for a declara tion that the two orders passed on the 18th of October 1963 and the 21st of December 1963 by respondent No. 1 and the summons issued on the 18th of November 1963 by respondent No. 2 to the Company for appearance on the 10th of January 1964, were without lawful authority and of no legal effect. It has been reiterated in this petition that the closure of the establishment of the Company under the circumstances was complete and irrevocable and that no industrial dispute existed or arose between the employer and the workmen so as to attract the provisions of the Ordinance and that respondents Nos. 1 and 2 have no jurisdiction to entertain, negotiate and settle the differences, if any, between them. . It has been further alleged by the Company in its petition that the Working Journalists (Conditions of Service) Ordinance, 1960, has also no application to the case because after the closure of the newspaper establishment respondents Nos. 3 to 13 have ceased to be the "working journalists" for the purpose of this Ordinance and that there was no jurisdiction in respondents Nos. 1 and 2 to entertain and adjudicate upon their grievances.
10. The respondents have controverted these allegations of the petitioner. Respondents Nos. 3 to 13 have, alleged that after their employment by the Company, the effective circulation of the Civil and Military Gazette had in fact considerably increased. In spite of this the petitioner stopped the publication of the news paper on flit: 3rd of September 1963 although its establishment continued to function even afterwards as is evident from the fact that not only the services of the respondents but also those of the General Manager of the Civil and Military Gazette and several other employees on the managerial side and the press had been retained by the Company. It has been further averred by respon dents Nos. 3 to 13 that after the stoppage of the publication of the Civil and Military Gazette the petitioner verbally told Mr. Zuhair Siddiqi; respondent No. 3, that he wanted to start the publication of an English Weekly in the very near future and that it was for this reason that the services of respondents Nos. 3 to 13 were being retained by the Company. It has been reiterated by them that after the issue of the office order dated the 18th of September 1963 mentioned above a regular register of attendance was being maintained by the Company in its office in which respondents Nos. 3 to 13 as well as the General Manager used to sign their attendance regularly and that the Company was also maintaining separate leave register in order to keep an account of the leave granted to the employees after the 3rd of September 1963. According to them even the designation of each and every one of the respondents as the working journalists for the Company was retained by the petitioner after the 3rd of September 1963. They have also denied that the contracts of service between the parties became incapable of performance for any reason beyond the control of the Company or that it had the effect of terminating their appointment which was valid for a fixed period. They have further asserted that so far as the newspaper establishment itself was concerned, there has never been any bona fide closure and that it continued to exist and function after the 3rd of September 1963 as well. They have maintained that in reality the Management has resorted to a lock out as mala fide device in order to coerse its workmen to surrender their legitimate demands against the Company. They have denied the allegations of the petitioner that there was no "industrial dispute" between the parties or that they have ceased to be the working journalists and that respondents Nos. 1 and 2 have no jurisdiction to entertain, negotiate, settle and adjudicate the demands made by them against the Company under the two Ordinances.
11. Respondents Nos. 1 and 2 have also, contested this petition and they have supported the allegations of respondents Nos. 3 to 13 in general.
12. According to the scheme of the Industrial Disputes Ordinance (LVI of 1959) and the rules made there under, five or more workers can join together to serve a notice of strike on the Management and in case their demands remain unfulfilled, the Conciliation Officer has to mediate for an amicable settlement of the industrial dispute between the parties. Subsection (1) of section 5 of the Ordinance provides that where an industrial dispute exists or is apprehended the Conciliation Officer shall hold conciliation proceedings in the prescribed manner. In accordance with subsection (2) of section 5 the Conciliation Officer has to investigate the dispute with a view to bring about a settlement between the parties. Under section 5(4) if no settlement is arrived at within the prescribed time, the Conciliation Officer shall issue a certificate to the parties to that effect and under subsection (5) any party to whom a certificate is issued may apply to the Industrial Court for adjudication and determination of the dispute. The Industrial Court is constituted under section 7 by the appro priate Government for adjudicating and determining any industrial dispute or any matter appearing to be connected with or relevant to such disputes and section 10(a) of the Ordinance lays down that the Court shall adjudicate and determine any industrial dispute in respect of which an application is made to it under section 5(5) and clause (d) of section 10 further provides that the Court shall exercise and perform such other powers and functions as are or may be conferred or imposed on it by or under the Ordinance. The "industrial dispute" itself has been defined in section 2(h) of the Ordinance.
13. Mr. M. Sleem, Bar-at-Law, the learned counsel for the petitioner, has argued that admittedly the publication of the Civil and Military Gazette stopped altogether on the 3rd of September 1963. He contends that by that time no dispute in fact arose between the Management and its workers and respondents Nos. 3 to 13 put up their demands long after the 3rd September 1963 after the industry had itself closed and the business had come to an end. According to the learned counsel, respondents Nos. 1 anti 2 have no jurisdiction to entertain any demand and proceed to investigate it under the Ordinance after the undertaking had ceased to exist. He has further stressed that with the stoppage of the newspaper on the 3rd of September 1963, respondents Nos. 3 to 13 ceased to be the "Working Journalists" within the meaning of the Working Journalists (Conditions of Service) Ordinance (XVI of 1960) and for that reason as well the respondents were not entitled to invoke the provisions of the Industrial Disputes Ordinance (LVI of…
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