MAULVI ANWARUL HAQ, J.--- The petitioner, is stated to be the General Secretary of a Trade Union of the workers employed by respondents Nos.3 and 4 as also a Trustee of the respondent No,5-Board.
Under section 3 of the Companies Profit (Workers' Participation) Act, 1968, "Nestle Pakistan Limited Workers Participation Fund" has been constituted. A Board of Trustees has also been established.
The precise grievance of the petitioner is mentioned in para.6 of the writ petition as follows:--- "(6) That contrary to the above legal position, respondent No,3/5 instead of paying the profit and interest in the "Fund", have been paying the left over amount of profit and interest on demand by respondent Nt.1 directly to the Federal Government in the Labour Welfare Fund allegedly in view of Para.4(d) of the Schedule and Para.4-A(e) of the Rules above referred. None of the respondents had any lawful authority to do so and the transactions thus, made between respondents Nos.3/5 and 1/2 were illegal, void ab initio and unwarranted. As laid down in para.4-A of the Rules, it was one of the duties of respondent No,5 to manage the Fund in accordance with law. Respondent No,5 also failed to demand the whole amount of profit and interest in the Fund."
' The, respondents Nos.3 and 4 in their written statement have admitted the said status of the petitioner but have objected that he cannot sue. The establishment of the said Fund and of the Board of Trustees is also admitted. It has been denied as a fact that the said respondent-Company had made any investment or utilized the Fund for its own business. It has also been stated that earlier Writ Petition No,11321 of 1998 was filed on the same subject, which was dismissed by this Court on 21-10-2002. Surprisingly in response to para.10 of the writ petition, it has been stated that the Company has disbursed and distributed the Fund to the workers and the Government. The respondent No,1 in its written statement has relied upon clause (d) of para.4 of the Scheme framed under the said Act of 1968.
2. Learned counsel for the petitioner contends that notwithstanding the judgment, dated 21-10- 2002 in Writ Petition No,11321 of 1998, the cause of action is recurring, the matter is now governed by the judgment pronounced by the Honourable Supreme Court of Pakistan on 10-12-2003 in the case of National Tanker Company (Pvt.) Limited and another v. Federal Government of Pakistan 2006 SCM R 1059.The precise contention is that the initial amount of profit i.e, 5% as also interest accruing on the amount to be allocated to the Company is to be credited to the said Fund to be administered by the said Board of Trustees. Learned Deputy Attorney-General for Pakistan is of the opinion that the said earlier judgment having not been challenged any further will constitute res judicata. He opposes the prayer being made by the petitioner with reference to the provisions of the said scheme. Same is the stance of the learned counsel for respondent No,
1. Learned counsel for respondents Nos.3 and 4 while reiterating the denial as to allocation or utilization of the Fund opposes the petition on the afore-noted grounds taken by the learned Deputy Attorney-General.
3. I have given some thought to the respective contentions of the learned counsel for the contesting parties and the learned Law Officer. It is true that this Court had earlier dismissed Writ Petition No,11321 of 1998 containing the same prayer.However, this was done with reference to decision of the learned High Court of Sindh in the case of National Tanker Company (Pvt.) Limited and another v. Federal Government of Pakistan Ministry of Labour, Manpower and Overseas Pakistanis Division (Labour Wing) through Secretary, Islamabad 1999 YLR 650. It is also admitted that the judgment was not challenged any further. However, the contention of the learned counsel for the petitioner that the cause of action is recurring and the deposits are to be made in the said Fund on annual basis in a continuous manner has force. The said judgment of the learned High Court of Sindh was challenged in appeal and it was held by the Honourable Supreme Court of Pakistan that the initial amount of profit accruing on the amount is to be paid to the workers of the Company. This judgment was delivered on 10-12-2003 and, of course, will apply perceptively. The writ petition accordingly is allowed and the result would be that the 5% of the declared profits shall be credited to the Workers Participation Fund to be managed by respondent No,5 in the manner prescribed in section 3(b) of the Companies Profit (Workers' Participation) Act, 1968. Similarly the profits/interest accruing on any amount allocated to the Company under para.2 of the Scheme appended to the said Act shall be credited to the said Fund for distribution as directed by the Honourable Supreme Court of Pakistan in the said judgment dated 10-12-2003 (2006 SCM R 1059) w.e.f, the year 2004. Any amount already credited to the Government shall be refunded and deposited in the said Fund. No order as to costs.