1. ' NAIMUDDIN, J.-This Intra Court Appeal under section 3 of the Law Reforms Ordinance, 1972, is directed against the judgment of a learned Single Judge of this Court dated 29th March, 1979 passed in Constitution Petition No. 1446 of 1974 filed by the National and Grindlays Bank Limited (hereinafter for the sake of convenience called the Bank).
2. ' The facts giving rise to this appeal very briefly stated, are that the Bank and the National and Grindlays Bank Employees Union (hereinafter called the Union) entered into a settlement on 6th August, 1971, wherein the Bank agreed to pay to the Union profit bonus as provided in clause (7) thereof which reads as follows : "7. Bonus.-During the currency of this agreement an annual cash profit bonus will be paid at the rate of 18% of actual basic salaries drawn during the year to :
(a) those members of the staff still in service of the Bank on 31st December each year.
(b) those members of the staff who have retired on pension during the year on pro rata basis.
(c) the representatives of those members of the staff who have died during the year on pro rata basis.
(d) The Bank may, however, at its discretion make payment of an interim bonus in June each year subject to the condition that the amount of any such interim bonus will be deducted from the final basis payable at the end of the year.
(e) It is agreed that bonus payable in terms of this agreement will be off-set against or liquidated any bonus which may be payable in the future under any enactment, present or future."
3. ' On 13th April, 1972, by Ordinance IX of 1972, the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, (hereinafter called the Ordinance) was amended and the Standing Order 10-C was inserted in the Schedule to the said Ordinance which reads as follows : "10-C. Payment of bonus.-(l) Every employer making profit in any year shall pay for that year within three months of the closing of that year to the workmen who have been in his employment in that year for a continuous period of not less thin ninety days a bonus in addition to the wages payable to such workmen.
(2) The amount of the bonus payable-
(a) ......
4. (b)
5. (3)
(4) Nothing in this section shall be deemed to affect the right of any workman to receive any bonus other than that payable under clause (1) to which he may be entitled in accordance with the terms of his employment or any usage or any settlement or an award of a Labour Court established under the Industrial Relations Ordinance, 1969 (XXIII of 1969)."
6. ' Thereafter, the Union claimed the statutory bonus but the Bank rejected the demand, therefore, the Union filed an application under section 34 of the Industrial Relations Ordinance, 1969 before the V Sind Labour Court, Karachi, which was allowed by the Court on 12th March, 1973, and the Bank was directed to snake immediate payment 91 statutory bonus to the workers bolding that the agreement between the Bank and the Union, being restrictive in respect of bonus, was incompetent and the Bank was bound to make payment of bonus under clause (4) in addition to payment of bonus under clause (1) of the Standing Order 10-C.
7. ' The Bank filed an appeal before the Sind Labour Appellate Tribunal which was allowed and the order of the V Sind Labour Court was set aside. Therefore, the Union filed a Constitution Petition, being No. 1008 of 1970 in this Court and meanwhile on 30th January, 1974, this Court in the case of Muhammad Aqil v. Sind Labour Appellate Tribunal and another (I), held that the appeal against the order made under section 34 was incompetent. This decision led the Bank to challenge the order of the V Sind Labour Court, Karachi by a constitution petition filed in this Court which was allowed by the judgment impugned in the appeal.
8. ' The learned Single Judge held that the Bank was entitled to set off the amount of profit bonus payable under the agreement against the statutory bonus payable and allowed the petition holding that the order passed by the Labour Court, in the circumstances referred to earlier could not be passed. He therefore, quashed the proceedings. Before the learned Judge the case of Messrs Khaber Tobacco Co. Ltd., Mardan v. Labour Union and another (21, in addition to some decisions of the Tribunal was cited on behalf of the Union to support the claim of the Union. Before us Mr. Hassan A. Shaikh has also cited American International Underwriters (Pak.) Lea, v. Presiding Officer, Sind Labour Court No. V and another (3).
9. ' A similar question arose in the Pakistan Tobacco Co., Ltd., Karachi v. Pak Cigarette Labour Union and another (4) which was heard by a learned Single Judge who agreeing with the decision of Peshawar High Court in Messrs.' Khyber Tobacco Co, Ltd., Mardan v. Labour Union and another dismissed the same observing as follows :- "28. In this view of the matter, I have come to the conclusion that if a bonus is payable under an existing settlement in force, the same irrespective of its nature is payable by virtue of clause (4) of Standing Order 10-C read with sections 39 and 40 of the Industrial Relations Ordinance, 1969 until the settlement remains in force. The liability of the employer to pay the statutory bonus at the minimum rate arises independently by operation of law under clauses (1) and (2) of Standing Order 10-C and therefore, if there is a subsisting settlement side by side, that would itself create a right for the payment of bonus independently of statutory bonus. It is for the employer in such a case to relieve himself of such a situation in the manner discussed above."
10. ' However, in an Intra Court Appeal the order of the learned Single Judge was set aside and it was observed by Fakhruddin, J. Who wrote the opinion of the Court, as follows : "To my mind there is no question of the workers being entitled to {{FOOT NOTE}}
(1) PLD 1978 Kar. 649 (2) PLD 1976 Pesh.
(3) 1976 PLC 725 .4) PLD 1977 Kar. 586 {{FOOT NOTE}} ' two profit bonuses and it will be for the workers to accept either a settlement profit bonus or statutory profit bonus. There would, therefore, be no occasion for a conflict between the two. The other interpretation would be that an attempt will be made to harmonise the terms and conditions of the settlement bonus and the statutory bonus and the more favourable between the two will prevail ."
11. ' The question was taken to the Supreme Court in Pak. Cigarette Labour Union v. Pakistan Tobacco Co. Ltd., Karachi and another (1). Dorab Patel, J. Who wrote the opinion of the Court observed as follows : " I, therefore, accept Mr. Irshad Hassan's submission that Khyber was paying bonus out of its profits and that the finding to the contrary by the learned Judges of the Peshawar High Court is not correct. Now, as Khyber was paying bonus out of its profits, the effect of clause (4) of the order is only that Khyber is not relieved of its obligation to pay the agreed bonus, and, on the other hand, as clause (1) only fixes the minimum shares of Khyber's workmen in Khyber profits, Khyber is entitled to set off the amount paid by it under its agreement of 8th January, 19'73 against its liability for the statutory bonus. Therefore, with respect, the finding of the High Court that Khyber is liable for the statutory bonus in addition to the agreed bonus is not correct, and the judgment of the learned Judges has to be set aside."
12. ' Dealing with Pakistan Tobacco Company's case the learned Judge observed : "I now turn to the appeal against Pakistan Tobacco. Although Zafar Hussain Mirza, J., dissented from the reasons given in Khyber's judgment for holding that workmen were entitled to the statutory bonus in addition to the agreed bonus, he nonetheless held that workmen are entitled to the statutory bonus in addition to the agreed bonus and he reached this conclusion for two reasons.
13. The first reason was that any other view would lead to anomalous consequences, because it would entitle the employer to repudiate his liability for the agreed bonus if it was higher than the statutory bonus. The learned Judge has not explained how any other view would lead to such anomalous consequences and with respect his apprehension that anomalous consequences would have followed from his taking a different view is based on a misreading of the order. The second reason given by the learned Judge was that the words "other than" in clause (4) of the order meant apart from. I have examined this clause in detail, but even on the footing that the words "other than" mean apart from, this does not lead to the conclusion that the statutory bonus was in addition to the agreed bonus, because clause (4) is only a saving clause and there is nothing in it to support the view that the statutory bonus has to be paid in addition to the agreed bonus. Therefore, the B judgment of the learned Judge was rightly set aside by the Division Bench of the Sind High Court."
14. ' The judgment proceeds : "However, in setting aside the judgment of Zaffar Hussain Mirza, J. {{FOOT NOTE}}
(I) PLD 1981 SC 495 {{FOOT NOTE}} ' the learned Judges of the Division Bench held there was no question of the workers being entitled to two profit bonuses and that they had to accept -either a settlement profit bonus or statutory profit bonus." Mr. Minto criticized these observations and for the response I have given I cannot agree with the proposition laid down by the learned Judges that workers cannot claim the statutory bonus in addition to the agreed bonus. They can, to the extent to which the agreed bonus falls, short of the statutory bonus. But, learned counsel also criticised the observation that workmen had to elect between the two bonuses and in this connection he pointed out that situations would frequently arise in which workmen, who were entitled to the statutory bonus, would not be able to qualify for the agreed bonus. The submission is correct and it only illustrates the fallacy in the view that workmen are entitled to only one bonus out of their employer's profits. Therefore, with all respect to the learned Judges, 1 agree with Mr. Minto that their judgment is based on a misreading of the order."
15. ' And in the result both the appeals were allowed but on terms. We may here quote the operative part of the order : "In the result, both the appeals are allowed, but on terms, because clause (1) of the order fixes the minimum liability of the employer for bonus whilst clause (4) clarifies that the statutory obligation imposed on the employer under clause (1) does not relieve him of his liability to pay any other bonus including a bonus for which he may be liable under a contract. This means that the workmen in both the appeals are entitled to retain their contractual bonus. But, if they have also received the statutory bonus, they are liable to refund it if the contractual bonus received by them exceeds or is in all respects equal to the statutory bonus. However, if and to the extent to which the contractual bonus falls short of the statutory bonus, the workmen will be entitled to retain this difference from the statutory bonus, And the workmen, who qualify for the statutory .Bonus but not for the contractual bonus, will be entitled to retain the whole of the statutory bonus. The appeals are disposed of in these terms, but as they turn on questions of law on which there was cleavage of opinion, I would not award any costs."
16. ' We may however, state that Mr. Hassan A. Shaikh attempted to distinguish this case on the ground that in the case settlement was arrived subsequently and the statutory provision was made earlier but that would not, in our opinion, make any difference because under the settlement the company reserved its right to seek relief from Court. Mr. Hassan A. Shaikh further submitted that 1976 PLC 725 was not brought to the notice of the learned Judges of the Supreme Court but that is immaterial for the law laid down by the Supreme Court is binding on US.
17. We therefore, find no reason to take a view different from the one taken by the learned Single Judge in the Judgment under appeal, and we are bound by the decision of the Supreme Court in the case of Pakl Cigarette Labour Union.
18. ' Accordingly, we dismiss this appeal with costs.