The petitioner factory employs less than 50 workers and the minimum wages fixed in its case is 110.50 vide Gazette Notification dated 27th October, 1972. On 29th March, 1974, respondent No. 1 served a notice of strike on the petitioner with a number of demands. During the conciliation proceedings, the parties reached a settlement dated 31st March, 1974, which is contained in Annex.
'B'. The agreement about demand No. 6 was as follows :------ "Weekly holidays with pay.-It was agreed that Union is at liberty to take this matter to the Court of law for decision."
2. Consequently, respondent No. 1 filed an application under section 34 of the Industrial Relations Ordinance on 25th January, 1975 which was ultimately decided by respondent No. I on 26th May, 1975. The Labour Court, after considering the evidence led by the parties, came to the conclusion that the petitioner was liable to pay wages for weekly holidays i.e. Sundays, to all the workers of the establishment from the date of signing of the agreement dated 15th March, 1974. The petitioner has now filed the present petition challenging the abovesaid order.
3. It is contended by the learned counsel for the petitioner that the respondent had no right under any 1$w, settlement or award to ask for the payment of weekly holidays twice over as the same are already included in the daily wages. Reliance in this connection was placed on the Notification dated 11th October, 1972 (published in the Punjab Gazette dated 27th. October, 1972) already referred to in para. 1 above. The above-said notification had been issued by the Government of Punjab under section 5 of the Minimum Wages Ordinance, 1961. Clause 2(a)(iv) of this section lays down that the Board may recommend minimum rates of wages specifying inter alia 'work on weekly day of rest and for paid holiday'. The notification shows that the daily wages fixed are 1/26 of the monthly wages. The learned counsel also relied on explanation to section 3 of the West Pakistan Minimum Wages for Unskilled Workers Ordinance, 1969 (West Pakistan Ordinance XX of 1969), to say that month means 26 days calculated at the rate of 48 hours per week. This section also provides minimum wages per month.
4. The learned counsel for the respondent referred to section 35 of the Factories Act, 1935 to say, that as the law gurantees one holiday to every worker, it means a paid holiday for, otherwise, it would be of no consequence. The learned counsel for the petitioner agreed with it but stated that section 35 does not entitle him to ask for the weekly holiday wages all over again when the same had already been provided for. He further referred to Sterling Plywood Products Employees & Labour Union, District Chattagong Hill Tracts v. Sterling Plywood Products Ltd., District Chattagong Hill Tracts (1962 L L C 510) in which East Pakistan Industrial Court refused to allow daily rated workers weekly holiday pay as a matter of right. Same view was taken in Alamgir Rayon Mills Workers' Union Karachi v. Messrs Alamgir Rayon Mills Ltd. Karachi (1968 L L C 83) by a West Pakistan Industrial Court at Karachi. The Fifth Sind Labour Court at Karachi also took the same view in General Secretary, National Containers Ltd. Mazdoor Union v. Messrs National Containers Ltd., Karachi (1974 L L C 158) for the reason that the wages of a daily-rated workers included payment for weekly holidays. In this case the Court took into consideration the minimum wages and section 35 of the Factories Act.
5. The learned counsel for the respondents relied on Workmen of Bombay Port Trust v. The Trustees of the Port of Bomby (1962 PLC 221) a decision of the Indian Supreme Court. Das Gupta, J. Who delivered the judgment interpreted in that case not the import of section 35 of the Factories Act, 1934 but rule 23 of the Minimum Wages Rules to hold that additional payment for weakly holidays had to be paid to a worker in addition to his daily wages. No similar rule has been framed under our law. Rule 16(1) of our Rules obliges the Government on the recommendations on the Board Ito fix number of working hours in a week. Rule 16(1)(b) provides payment for overtime work. Rule 16(1) clause (c) provides for a day of rest in every period of seven days four all workers whereas clause
(d) make more clear provisions for weekly holiday and payment for work on holidays. It may further be added with great respect that rule 23 of the Indian Rules provides not for payment for weekly holiday but for working on an appointed holiday. It also provides that in such a case another day of rest shall also be allowed. Rule 16(1)(d) of West Pakistan Minimum Wages Rules, may be reproduced with advantage. It read s as under:-- "Where a worker, whose minimum rate of wages is fixed under the Ordinance works for 'his employer on any day of rest or on specified holidays, require the employer to pay the worker at a rate double the minimum rate fixed for work during normal hours; or alternatively, to give the worker a day of rest or holiday within a period of not more than six days of rest or holiday on which he worked."
The learned counsel also referred to the case of the Premier Tobacco Co. Ltd., Mardan v. Premier Tobacco Workers' Union (1970P L C 126) to support his plea. That judgment, however, does not correctly interpret the relevant provisions of law. It is however, quite clear from the above discussion that for payment for weekly holiday has been taken care of by the Legislature and it has not been left to the will of the employer while fixing minimum wages. The section 5 (2), (3) and (4) of Minimum Wages Ordinance, 1961 which have taken care of section 35 of the Factories Act 1934, reads as under :- ---5 (3) In pursuance of direction under subsection (1), the Board may recommend minimum rates of wages for all classes of workers in any grade and, in such recommendation, may specify :-----
(a) The minimum rates of wages for-
(i) Time work ;
(ii) Piece work ;
(iii) Overtime work ;
(iv) Work on the weekly day of rest and for paid holidays; and
(b) The minimum time rates for workers employed on piece work so as to guarantee minimum wages on a time basis for such workers.
3. The time rates recommended by the Board may be on hourly, daily, weekly or monthly basis.
(4) The rates recommended under this section for overtime work and work on paid holidays shall not be less than the minimum rates fixed for such work under any other law for the time being in force."
These recommendations when accepted by the Government under section 6 (a) became final as laid down in section 6 (7). The minimum wages as accepted by the Government in respect of the cycle industry are contained in the notification referred to in para. 1 above. The relevant portion is as follows :------- SCHEDULE Zone A Zone B DailyMonthlyDailyMonthly Rs.Rs.Rs. Rs.
Semi-skilled including 5-19135-004-94128-50 Ministerial State.
Unskilled and Mis-4-50117-004-25110-50 cellaneous.
6. A perusal of these would show that the daily wage is not 1/30 but 1/26 of the monthly wage. Rule 16 (1) (d) of the Minimum Wages Rules, 1961 as reproduced above clearly explains the position about work on holidays. I have, therefore, no doubt that the daily wage fixed in this case include payment for weekly holidays and the method devised appears to be to ensure regular payment without any dispute, controversy, botheration or worry to the workers.
7. The second point raised by the learned counsel was that in any case respondent No. 1 had no locus standi to approach the Labour Court as it was neither a certified 'Collective Bargaining Agent' nor was there any secured right available to be enforced. He submitted that what the respondent wanted was to get an adjudication on the various pro--visions of law but not the enforcement of a secured right. It was argued by the learned counsel that section 25-A of the Industrial Relations Ordinance which originally contained a deeming clause enabling an only registered Trade Union of a concern to become its 'Collective Bargaining Agent' was subsequently amended with effect from 30th October, 1974 (Ordinance XI of 1974), so as to take away that deeming provision. The law was further amended to provide that a registered Trade Union had to be certified by the Registrar before it could become a 'Collective Bargaining Agent. It was contended that as the respondent had never secured that status, prior to the filing of an application under section 34 before the Labour Court, it had no locus standi to have started these proceedings.
8. The learned counsel for the respondent relied on section 22 (1), as amended, read with section, 52 of the Industrial Relations Ordinance, to say that a registered Trade Union was empowered even before it was certified to invoke section 34 of the Industrial Relations Ordinance. He relied on National Bank of Pakistan Employees' Front v. National Bank of Pakistan etc. (1975 PLC 188) and Zarina Bibi v. Mehboob etc. (PLD 1979 Lah. 36) in that regard. The learned counsel for the respondent further argued that as respondent No. 1 was the 'Collective Bargaining Agent' at the time of the settlement referred to above, it had the right to see that the settlement was enforced, He relied on National Mill Labour Union (Regd.) Managing Director, National Silk and Rayon Mills Ltd.
Lyallpur (1972 PLC 420) In reply the learned counsel for the petitioner relied on Awalin Silk Mills Workers' Union, Karachi v. Their Management (1977 PLC 427) to controvert the plea taken by respon--dent No. 1 that section 52 could be called in assistance by an uncertified registered Trade Union. The contention of the learned counsel was that section 52 comes into play only if there are more than one Unions and secret ballot to determine a 'Collective Bargaining Agent' had not been taken.
9. There is however, nothing in the Industrial Relations Ordinance to support the position taken by the petitioner. Section 52 reads as under :----- '52. Any act or function which is by this Ordinance required to be performed by or has been conferred upon a Collective Bargain--ing Agent may, until a Collective Bargaining Agent has been certified under the provisions of this Ordinance be performed by a registered Trade Union which has been recognised by the employer or employers."
The above provision thus makes it quite clear that the respondent No. 1 could perform the functions of a 'Collective Bargaining Agent' till one was duly certified by the Registrar. It is an admitted fact that the respondent No. 1 had been recognized by the employers before, as the present litigation arose out of a settlement, arrived at the instance of respondent No. 1.
10. The objection that the respondent could not invoke the remedy under section 34 is also not valid. Firstly, the petitioner cannot appro--bate and reprobate. He agreed in conciliation to get this matter decided by the Court, and while in Court he could not be permitted to say that the Court has no jurisdiction. Undoubtedly, it was a right secured in a settlement and could be enforced under section 34.
11. However, in view of my finding that the respondent No. 1 had already been allowed the payment of weekly holidays in the daily wages fixed under the Minimum Wages Rules, they could not claim the same all over again. The impugned order is therefore, declared to be without lawful authority and of no legal effect. Parties to bear their own costs.