The present appeal was filed in the High Court of West Pakistan, Karachi Bench, under section 12(5) of the Industrial Disputes Ordinance, 1959 (hereinafter called the repealed Ordinance), on 28th March 1968. It was admitted on 29th April 1968. The office of the High Court made a reference on 11th May 1968, that the Ordinance of 1959,' having been repealed on 8th March 1968, no appeal lay to the High Court. The reference, however, was rejected on 27th May 1968, by the learned Judge of the High Court and the order of 29th April 1968, was maintained. The Memorandum of this appeal, however, was returned to this Tribunal by the High Court, Karachi Bench, for disposal. The High Court after the repeal of the Ordinance of 1959, on the face of it, had no jurisdiction to 't entertain the appeal filed after 8th March 1968. The facts giving rise to the appeal briefly put are these.
2. Mr. Muhammad Soomar, General Secretary of the West Pakistan Transport Service Workers'
Union, Hyderabad, gave a notice of strike under section 18 of the repealed Ordinance in July 1965.
The conciliation proceedings having failed on 16th August 1965, a Failure Certificate was issued with a list of demands. The General Secretary in person presented an application under section 5(5) of the repealed Ordinance before the Second W6st Pakistan Industrial Court, Karachi, on 20th September 1965. There were in all 7 demands. Demands Nos. 2, 4, 5 and 6, were withdrawn. The learned Industrial Court, after recording the evidence of the parties and hearing them, gave its award on Demands Nos. 1, 3 and 7. The learned Industrial Court accepted Demands Nos. 1 and 7 and partly Demand No. 3.
3. Mr. A. Majeed, the learned Representative for the respondent-Union, raised a preliminary objection that the appeal is not maintainable, inasmuch as, it has not been presented by a proper person. There is no force in this contention. It is clear from the record that Mr. Aslam Avais, C. S. P., Chairman, Road Transport Corporation, gave a Letter of Autho--rity to Mr. Mushtaq Hussain, Labour Advisor, Road Transport Corporation to appear and conduct Miscellaneous Application No. 46 of 1968 (Chairman v. General Secretary, West Pakistan Transport Service Workers' Union, Hyderabad and others), in the High Court. The appeal in the High Court was numbered as Miscellaneous 46 of 1968. The contention as to the maintain--ability of the appeal is technical one and I reject it in view of the Letter of Authority by the Chairman, Road Transport Corporation in favour of Mr. Mushtaq Hussain to prosecute and file the appeal in the High Court.
4: I would now proceed to consider the contentions of Mr. Bashir, the learned Advocate and of Mr. Nasirul Hasan, Representative for the appellant in respect of the award.
5. Mr. Bashir, the learned Advocate contended that deemed No. 1 cannot be said to be an industrial dispute. It would be useful to reproduce Demand No. 1. It runs as under:- Revised pay-scales enforced by the Corporation should also be made effective to all the workers from 1st December 1962, like other staff governed by Service Rules of Road Transport Corporation.
The dues of difference from 1December should be paid to them."
6. The contention is that industrial dispute cannot relate past demand. The industrial dispute is defined under the, Industrial Disputes Ordinance under section 2(h), as under " Industrial dispute' means any dispute or difference between employers and employers, or between employers and workmen or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of work of any person;"
7. In my view of the matter, the definition of "industrial disputes" is wide enough to include a demand in respect o past wages as given to other employees of the Road Transport Corporation.
The admitted position is that some employees of the Road Transport Corporation in respect of the increase of their pay have been given the benefit from 1st December 1962; while some of the workmen of the Road Transport Corporation have been given increase in the pay from 1st March 1964. I would hold that, in the circumstances of the present Base, the demand for increase in the pay from 1 December 1962, is an industrial dispute.
8. In the next place Mr. Bashir contended that the order dated 17th August 1964, giving retrospective effect to the increase in the pay from 1st March 1964, was past and closed transaction and the same, therefore, could not be raised as an industrial dispute. In this connection, it was submitted that the notice of strike was given on 16th July 1965, almost after a year. The Union having accepted the increase of pay from 1st March 1964, it was too late to re-open the matter after about a year. If the Union was permitted to re-open the subject, it will have un-settling effect on the economy of the Corporation, It is true that claims should not generally be encouraged as industrial dispute or allowed unless there is satisfactory explana--tion for the delay. Apart from the risk to industrial peace from the entertainment of claims after a long lapse of time it is necessary to take into account the un-settling effect it is likely to have on the employers financial arrangements. Whether a claim has become too stale or not will depend on the facts of each case. In the present case, a reference to the Cement of Khamosh Gul would indicate that the Union had en up the question of the increase of pay from 1December 2, immediately after the announcement of increase in pay 1954. It was only after the Department failed to grant redress that the Union gave a strike notice. In these circumstances, it cannot be said that the claim was belated.
9. I will now proceed to consider the appeal in respect 1 Demand No. 1. Demand No. 1 reads as under:-st st st "Revised pay-scales enforced by the Corporation should also be made effective to all workers 1 December 1962, like other staff governed by Service by Rules Road Transport Corporation. The dues ofdifference from 1December should be paid to them."
10. It would be useful to reproduce the relevant portion of the finding of the learned Chairman of the Industrial Court on Demand No. 1, which runs as under:- ---The point is that the workmen should not be given discriminatory treatment as respects the enforcement of revised pay-scales from two different dates, namely, in respect of all other staff from 1st December 1962, and in respect of workmen from 1-3-1964. This is notwarranted by any provision of the Standing., Orders or Minimum Wages Ordinance or any other law. The giving of effect of revised pay-scales, should be uniform to all the categories of service.---
11. The learned Industrial Court has not given any reason, except that of discrimination, as to why the workmen, who were given retrospective effect in respect of increase in their pay from 1st March 1964, are entitled to increase to their pay from 1st December 1962. It is not the case of the Union that the Corporation acted mala fide or arbitrarily in giving retrospective effect in respect of some of the workmen from 1st March 1964. It is noteworthy that the Union did not lead any oral evidence in respect of No. 1. The Union relied on the admitted fact that the pay of some of the workmen of the Corporation was increased from 1 December 1962, while in the case of others it was increased from 1st March 1964. In the absence of any allegation or suggestion of mala fide on the part of the Corporation, it is necessary to examine as to why the Corporation gave retrospective effect in respect of some of its workmen from 1st March 1964.
12. The Road Transport Corporation is a statutory body established under section 70 of the Motor Vehicles Ordinance, 1965. It is a public utility service providing major mode of transport to the travelling public of West Pakistan. There are two categories of employees of the Corporation; namely, the Officers, who are appointed by the Government of West Pakistan in consultation with the Corporation, and others who are appointed by the Corporation in exercise of the powers vested in it under the Road Transport Corporation Rules. The condi--tions of service of the Officers appointed by she Government of West Pakistan are regulated as may be prescribed by the said Government, while the conditions of employment of the officers appointed by the Corporation are as may be prescribed by the Corporation. The Corporation framed Rules which are known as "Road Transport CorporationRules, 1963", regulating the conditions of employment of its employees appointed by it. Under the said Rules, it- Corporation has power to make the application of the Rules in respect of certain categories of posts and not to others. The Corporation excluded from application of the Road Transport Corporation Service Rules persons, who are governed by the Standing Orders Ordinance--. The workmen represented by the respondent-Union are the persons to whom the Road Transport Corporation Rules, 1963, do not apply.
In 1964 the Corporation revised the pay-scales of its employees. For the categories of its employees governed by the Service Rules, 1959, the West Pakistan (Non-Gazetted) Civil service (Pay Revision) Rules, 1963, were adopted and their revised pay-scales were given effect from 1st December 1962. This was done by an order dated 17th August 1964. The employees excludedfrom the application of the Service Rules were placed in the consolidated pay-scales fixed in the light of the award of the Minimum Wages Board for the Motor Road Transport Industry in West Pakistan.
This was also done by the Corporation by an order dated 17th August 1964. The pay-scale, of these employees was given retrospective effect from 1st March 1964. These facts are not disputed by the Union.
13. There are certain facts which must be borne in mind, while adjudication upon Demand No. 1. As I have already mentioned, the unionhas not led any evidence as to why the increase ins pay should have been given retrospective effect from 1st December 1962. The order increasing the pay of the workmen represented by the Union was passed on 17th August 1964. The Corporation hasst st st increased the pay not from the date of the order but from 1st March 1964. It is true that the Corporation in respect of certain class of employees, to whom the standing orders did not apply, has increased their pay by an order l7th August 1964, with retrospective effect from 1st December 1962. The power of the Corporation to increase the pay of different sets of employees from different dates cannot be reasonably challenged except on the ground of discrimination, arbitrariness and mala fide. In the present case, the order dated; 17th August 1964, increasing the pay of the members of the respondent Union from 1st March 1964, is based on reasonable ground. The Industrial Court will be reluctant to interfere with the order of the Corporation. It is worth noting that there does not appear anything on the record to show that the Unionhad made any representation to increase the pay of its members. The Corporation did i1 on its own. Moreover it is not the case of the Union that the increase in the pay is inadequate. In this connection, it will be useful to reproduce the observations of Cornelius, C. J., in the case of Karanphully fall paper Mills Limited (PLD 1961 SC 329), while considering the question of theincrease in pay. It runs as under:- There is nothing to show that the salaries paid by the Mills in the lowest grades are inadequate compensation, bearing in mind the market rates for labour of that kind, in relation to the work which is required, or that equivalent workers in other Companies or establishments are being paid at a higher rate. The tribunal has merely given a bounty out of the goodness of his heart, and in doing so has not cared even to consider how deeply he was dipping into the pocket of the employer. A mere idea that the large body of workers involved were getting salaries which seemed to be ---rather a bit low--- is no ground at all disturbing the wage structures of this large industrial unit--- It is clear from the above observation of the Supreme Court that the industrial Court should not readily disturb the order of the employer increasing the pay of its workmen from a certain date.
14. I will now proceed to consider as to, whether there was any reasonable ground for increasingthe pay of the member of the respondent-Union from 1st March 1964, and not from 1st December 1962.
It is important to note that the Minimum Wages Board had fixed the pay of a number of employees of the Corporation, who were governed by the Service Rules and who were given increase in pay from 1st December 1962. What is' more important to note is that in a number of cases these employees were given less scale of pay than fixed by the Minimum Wages Board. A perusal of the list of the employees governed by the Service Rules had been filed by the Department. The list has not been challenged by the other side. The Minimum Wages Board fixed the pay of an Accountant at Rs. 250.1,0. An Accountant was to be appointed on probation for 'one year at Rs; 250.00. Ifhe was found efficient, his pay was fixed at Rs. 275.00. The minimum Wages Board fixed the pay of Stenographer at Rs.50.00. The Road Transport Corporation put him in the scale of Rs. 225.00. He was, howevergiven the pay of Rs. 250.00 with effect from 1st March 1964. It is noteworthy that the Corporation did not give retrospective effect in the case of Stenographer from 1st December 1962.
Steno-'Typist gets the same pay as fixed by the Minimum Wages Board, while Head Clerk, Cashier, Senior Clerk, Senior Booking Clerk, Store Keeper, Time Keeper, Daftari and Peon;' who were governed by the Service Rules, were given less scale of pay by the Road Transport Corporation then fixed by the Minimum Wages Board: It appears from the record of the case that here are only two employees of the Road Transport-Corporation who have been given more pay than fixed by the Minimum Wages Board, namely, Inspector and Checker. It may be that the Road Transport namely, after experience came to the conclusion that too- Inspector end Checker must be well paid to keep them above temptation. However, the fact remains that the Road Transport Corporation reduced the pay scab of most of its employees, who were; governed by the Service Rules, than fixed by the Minimum Wages Board. At any rate, the Road Transport Corporation did not give increased Pay except in the case of two of its workmen, namely, Inspector and Checker than fixed by the Minimum Wages Board the other hand, if appears from perusal of the annexure on tile record that workmen governed by Standing Orders have got more pay than fixed by the Minimum Wages Board. The Mechanics, Carpenters, Painters, Turners, Blacksmith, Electrician, Welder and Tin Smith got more pay than was fixed by the Minimum Wages Board. The Minimum Wages Board fixed their pay at Rs, 130.00, while the Road Transport Corporation fixed their pay at Rs. 140 -5-170.
The pay of the Driver of Double Decker was fixed at Rs. 150,00 by the Minimum Wages Board, but the Road Transport Corporation increased it to Rs. 155,00. Similarly, the pay of Conductor was fixed by the Minimum Wages Board at Rs. 90.00. The Road Transport Corporation increased it to R s. 95.00. It may be emphasised that the Road Transport Corporation bad given less scale of pay than fixed by the Minimum Wages Board to the workmen governed by the Standing Orders Ordinance. I cannot, therefore, be said that there was no reasonable ground for not giving retrospective effect to the increase of pay to the members of the Union from 1st December 1962. In the case of most of them their pay was fixed at higher scale than fixed by the Minimum Wages Board. On the other hand, in the case of most of the persons governed by the Service Rules, the Road Transport Corporation had faxed their pay lower than fixed by the Minimum Wages Board. In these circumstances, the Road Transport Corporation was quite justified in giving retrospective effect in the pay of persons governed by the Service Rules from Ist December 1962.
15. It is not the case of the Union that persons whose pay has been increased from Ist March 1964, are getting less pay than others occupying similar position. It has also not been established before me that they are entitled to more pay than what they are getting by virtue of the order dated 17 August 1964. In these circumstances, the mere fact that the Corporation has made distinction in the case of soave of its employees and the members of the respondent-Union in the absence of any mala fide on the part of the Corporation respondent cannot be put at par with the employees governed by Service Rules.1
16. It is worth noting that only a smaller section of the workmen governed by the Standing Orders ha a challenged the order dated 17th August 1964, on the ground of discrimination. It is only the employees of the Hyderabad Union, who have challenged the same. The order dated 17th August 1964, applies to all the workmen of the Road Transport Corporation in West Pakistan. The rest of the employees of the Road Transport Corporation affected by the said order have not challenged it. It is true that if this Court were to grant the prayer, of the Union, the Corporation will have to pay a small amount towards the arrears of pay, as it will be confined to the members of the Hyderabad Union only. On the other hand, the Corporation would not be justified to pay arrears of pay only to one section of its employees and not to others, who are similarly situated. It appears from the affidavit of Mr. Islam Moin, Assistant Director (Accounts), Road Transport Corporation that the Corporation will have to pay a sum of Rs. 14,67,000.00 as arrears of pay to all its workmen to whom Standing Orders Ordinance applies. All that Qamus Gut in reply stated was that the said amount is not based on any working paper or on the strength of the employees. Mr. Islam Moin, the Assistant Director (Accounts), is supposed to have given this figure on the basis of the number of workmen in the Corporation. Moreover, the Corporation under the orders of the Governmentof West Pakistan has to give ad hoc relief to its Class Ill and Class IV employees with effect from 1st March 1969. The appellant Corporation, it is stated by Mr. Islam Moin, will have to incur an additional expenditure of Ra. 31,80,000.00 per year. Mr. Islam Moin also stated that there is likely to be a drop in its earning by Rs, 50,68,000.00 as a result of concession in fare to the travelling students. The amount may be exaggerated, but the fact remains that there will be reduction G in the income of the Corporation.
The Industrial Court can take notice of these facts, which cannot be denied by the other side.
17. For the reasons given above, I would set aside the award of the learned Chairman of the Industrial Court in respect of Demand No. 1, and hold that there is no good reason to grant Demand No. 1.
Demand No. 3, reads as under:-th "Night-out allowance should be paid at the rate of Rs. 5.00 per night at Karachi and at Rs. 4.00 per night at other places of Ex-Province of Sind."
18. The learned Industrial Court gave an award of Rs. 4. 00 as Night-out Allowance at Karachi and Rs. 3.00 in Sind'. On this demand, the Union produced Fazal Khan (A. W. 1). He is a Conductor in the Government Transport Service, Karachi. He said that he had to stay for the night outside Karachi and had to pay Re. 1.00 to the Hotelman and had also to make arrangement for his residence. He stated that it cots him Rs. 4.00. He had not been cross-examined as to the amount he mentioned in his examination-in-chief. All that tie was asked in cross-examination was if at Dera Ghazi Khan, Peshawar and Rawalpindi, they were paid Night Allowance at the rate of Rs. 1.75 per day. On the other hand, the Department examined Jhamandas Sharma. He stated that in Sind the Night-out Allowance was Re. 1.00 and for Karachi it was Rs. 3.00. He further stated that Rs. 3.00 was sufficient for one meal. He did not state how much one had to pay for the Hotel for stay in the night. There is no satisfactory evidence on behalf of the Corporation, so as to set aside tile award given by the learned Industrial Court. The Chairman of the Industrial Court had the advantage of observing the demeanour of the witnesses appearing before him. I am not inclined, in the circum--stances of the present case, to disbelieve Fazal Khan (A. W. 1) and to set aside the award.
Demand No. 7, reads as under :-.
"The Workers of Group No. 40 to Group No. 48, are not paid the allowance during training at Transport Training School, Lahore, which is being paid to other trainees. All these allowances should also be paid to Group No. 40 to Group No. 48."
19. The learned Industrial Court came to the conclusion that there was discrimination between the workers of Group No. 40 to Group No. 48, and others, who had been paid Daily Allowance. Saiful Malik (A. W.2), stated that he was sent along with others for training to Lahore. He did not get any Daily Allowance as others, who had been sent earlier to him. He admitted in cross-examination that he got Corporation Allowance but did not get any daily Allowance. The Daily Allowance, was payable at the rate of 25 % of the pay. It appears to me that the Corporation, in order to avoid payment of Daily Allowance, transferred these trainees temporarily to Lahore and paid them Rs.
10.00 per month as Capital Allowance. This appears to be insufficient to meet the expenses during the period of training. The device to transfer the trainees to Lahore appears to me, only to deprive these persons of the Daily Allowance. I consider this device to be unfair and unreasonable, considering the fact that other trainees were getting Daily Allowance. I would, therefore, maintain the award of the learned industrial Court on Demand No. 7.
20. In the result, the appeal partly succeeds, inasmuch as the award in respect of Demand No. 1, of the learned Industrial Court, is set aside, while the award on Demands Nos. 3 and 7, is maintained.