DECISION ' This appeal is directed against an order made by the learned Second Labour Court, on 26th March, 1981 on a petition filed by the respondent Union under section 32(1-A), I. R.
0., awarding certain benefits to the workmen in the establishments of the appellants.
2. The Pakistan Industrial & Mining Syndicate Ltd., the appellants herein, is a private limited company engaged in the business of mining, exploring, prospecting, processing and refining of marble and has its Head Office in Baluchistan. There are two sister companies of the appellants, namely Ahangar Limited and Saeed Marble Industries Limited. The respondents are a registered Trade Union of workers in the appellant company. The said Trade Union was duly registered by the Registrar, Trade Unions, on 5th August, 1975. The Union has also been provisionally certified as the Collective Bargaining Agent for the appellant establishment. By a notice, dated 2nd April, 1980 the respondents, submitted a Charter of Demands to the appellant company. Subsequently, on 15th April, 1980 the respondent Union served a notice of strike under section 26(3), I. R.
0., on the appellant company as their demands were not accepted by the appellant company. The matter was, accordingly, referred for conciliation but the conciliation proceedings failed and certificate of such failure was issued on 26th June, 1980. The respondent Union, accordingly on 20th July, 1980 submitted an application under section 32(1-A), I. R. O., to the learned Second Labour Court, for adjudication of their demands. By the impugned order the learned Labour Court has rejected the Demands Nos. 1, 2, 10, 13, 16 and 17, relating to increase in basic salary, grant of annual increment, loan facilities, grant of free clothing on the occasions of the Bids, special allowance for workers who meet the standard of efficiency required and canteen allowance of Rs, 80 each to all workers, but allowed Demands Nos. 3, 4, 5, 6, 7, 8, 9, 12 and 15 relating to grant of house rent, conveyance allowance, bonus, gratuity, leave, uniforms, making temporary workmen permanent, supply of soap and towel to workmen who deal with stone, marble or water, grant of overtime allowance and lunch-break. Demand No, 11 relating to the workers' participation fund was disposed of with the observation that the company with the assistance of the Workers' Union should ensure that the law regarding the fund is being strictly adhered to by the company.
3. I have heard Mr. Mahmood Abdul Ghani, who appeared for the appellant company, and Mr. Ali Ahmed, the learned counsel for the respondent Union.
4. Mr. Mahmood Abdul Ghani has assailed the impugned order of the learned Labour Court on the following grounds :-
(i) that though the respondent Union is the C. B. A. For the establishment of the appellant company only the learned Labour Court has awarded benefits not only to the workmen in the said establishment but also the workmen employed in the two sister establishments i. e. Ahangar Limited and Saeed Marble Industries limited, and, therefore, the order of the learned Labour Court, at least to this extent, is invalid and inoperative ;
(ii) that the respondent Union was not entitled to espouse the cause even of workmen in the appellant establishment since it had only obtaiaed a provisional certificate of C. B. A. Which is not contemplated by law ; ' WO that the Labour Court has not based its order on any tangible evidence or material on record ; and
(iv) that the learned Labour Court has failed to take into considerstion the appellant's capacity to grant and pay for the benefits awarded as also the fact that the company was, in fact, running into losses.
5. Now as regards the first objection raised by Mr. Mahmood Abdul Ghani, it was frankly conceded by Mr. All Ahmed, the learned counsel for the respondent Union that as the latter Union represents only the workmen in the appellant company, it cannot espouse the cause of the workmen in the two separate sister establishments, i. e. Ahangar Limited and Saeed Marble Industries Limited. This admission was fairly made by the learned counsel for the respondent Union in view of the fact that not only the registration certificate but also the provisional certificates of C. B. A. Granted to the respondent Union specifically mentions that it was respectively the Union of workmen and the C. B.
A. For the appellant establishment. The position has further been clarified by the letter, dated 24th May, 1981 from the Registrar of Trade Unions certifying that the respondent Union can only represent the workmen employed in the Pak. Industrial Mining Syndicate Ltd., while the workers employed in the Ahangar Limited and Saeed Marble Industrial Limited are not eligible to become members of the respondent Union nor can the said Union represent the workmen in the aforesaid separate establishments.
6. I would next consider the objection of Mr. Mahmood Abdul Ghani to the maintainability of the proceedings on the initiative of the respondent Union. Mr. Mahmood Abdul Ghani submitted that an application to the Labour Court under section 32(1-A), I. R.
0., on behalf of the workmen can only be made by the Union of workmen which had been granted certificate of C. B. A. By the Registrar, Trade Unions, under section 22(I),
1. R.
0., and inasmuch as the respondent Union had been granted a provisional certificate of C. B. A., which certificate is not contemplated by law, the respondent Union cannot be deemed to be the C.
B: A. In the eyes of law and hence is not entitled to be a party to proceedings under section 32(1-A) or file an application under the said section. Mr. Mahmood Ghani sought support to his contention from anunreported decision of a learned Single Judge of the Karachi High Court in the case of Pan Islamic Steamship Co. Ltd. v. Registrar of Trade Unions Constitutional Petition No, 193 of 1976 being decided on 19th March, 1978. The facts of that case were that the Karachi Port Ship Repairers, Watchmen and Tally Workers' Union submitted an application to the Registrar of Trade Unions for issuance of C. B. A. Certificate under section 22(1), I. R.
0. On the grounds that it was the only registered Trade Union in respect of Ship Repairers daily wages/casual workers employed by the Pan Islamic Steamship Co., and they represent more than 1/3rd of the total number of such workers employed in their establishment. On the Pan Islamic Steamship Co. Ltd., being called upon to submit a list of the total number of workmen employed in the establishment the said company made a reply that they already had a registered Union in their respective establishment which had been declared as C. B. A. For their establishment and that the members of the Karachi Port Ship Repairers, Watchmen and Tally Workers' Union were not their permanent employees and were engaged from time to time only as daily wages/casual workers on a temporary basis. The Registrar, however, without farther enquiry granted a provisional certificate of C.B.A. To the Trade Union in the following form :- ' It is hereby provisionally certified subject to the manner to be prescribed under the law that Karachi Port Ship Repairers' Watchmen and Tally Workers' Union is a Collective Bargaining Agent in the establishment (list enclosed), within the meaning of subsection (I) of section 22 of the Industrial Relations Ordinance, 1969 (as amended)."
6-A. It was held by the High Court that the above certificate was invalid and not contemplated by law on two grounds, firstly, because it was provisional and there was no provision in the law for grant of provisional certificate and, secondly, it was granted without the Registrar enquiring into the allegation of the Ship Company that the members of the Workers' Union employing for certificate of C. B. A. Were employed on temporary basis of period of less than three months at a time. This judgment, however, is of no assistance to the appellant company as the facts of the present case are wholly distinguishable from the facts of the ease dealt with by the High Court. Unlike the case before the High Court there is admittedly only one trade Union of workers in the appellant establishment. As such, the question of making enquiries by the Registrar as to which workers in the appellant establishment were employed for a period of more than three months does not arise.
Section 22(1),
1. R.
0., provides that where there is only one Trade Union of workmen in the establishment and if it has as its members not less than 1/3rd of the total number of workmen employed in such establishment it shall be certified by the Registrar in the prescribed manner to be the Collective Bargaining Agent of such establishment upon an application made in this behalf. All the three requirements have been fulfilled in the instant case by the respondent Union. It is admittedly the only Trade Union of workmen in the appellant establishment and further it has a membership of not less than 1/3rd of the total number of workmen in the appellant establishment as certified in the provisional certificate of C.B.A. Granted it. Furthermore it had admittedly made an application for issuance of the requisite certificate of C. B. A. To it. The Registrar was, thus, bound to grant to the respondent Union the requisite certificate in the prescribed form. The mere fact that no form for grant of certificate of C. B. A. Under section 22(1), I. R.
0. Has been prescribed does not mean that either the Registrar could refuse to grant to the respondent Union the requisite certificate or that the respondent Union was not entitled to exercise the right and perform the functions of the C. B. A. Despite the fact that there may have been some defect in the certificate of C. B. A. Granted to it by the Registrar. It may be pointed out that apparently the sole reason for the Registrar granting, provisional certificate' of C. B. A. To the respondent Union despite the fact that it had fulfilled both the requirements of law for grant of proper certificate of C. B. A. Under section 22(1), I. R. O., was the failure to prescribe such form. A Such failure cannot disentitle the respondent Union, which was entitled to such certificate to represent the workmen in the appellant establishment and to perform all the functions and exercising all the rights of the C. B. A. I am fortified in my opinion by the decision of their Lordships of the Supreme Court in the case of Manzur-of-flaque v. Controlling Authority, Local Councils Montgomery and others (I). In that case, one of the issues which fell to be considered by their Lordships of the Supreme Court was whether persons who had been duly elected as members of the Union Committees in the Urban Area of Montgomery were entitled without being notified to perform the functions of such members despite the fact that section 17 of the Municipal Administration Ordinance and Article 26 of the Basic Democracies Order required that the names of the selected members shall be notified in the official Gazette. Repelling the contention that until the names of the selected members are notified in the official Gazette they are not entitled to function and cannot be deemed to be members of a municipality or local council, the Supreme Court observed as follows :- "In Article 26 of the Basic Democracies Order there is a provision for notification with respect to appointed members but there is no such provision with respect to official members. It has to be pointed out at the same time that the mere existence of a provision for notification is a wholly insufficient basis for saying that the absence of a notification will stand in the way of the person whose office is to be notified. There are some provisions which simply cast a duty on the executive Government to notify the holder of an office and have no further effect. Section 17 of the Municipal Administration Ordinance and Article 26 of the Basic Democracies Order are provisions of this character. Unless there be something in the language of a statute which shows that the person concerned will not commence to hold an office till there is a notification in the Gazette, a provision for a notification should not be interpreted as a condition precedent to the holding of an office."
If there had been a specific provision in the I. R. O., that unless certificate of C. B. A. Is granted to a Union of workmen, even if the' Union is entitled to such a certificate under section 22(1),
1. R. O., it will not be entitled to perform the functions or exercise the rights of C. B. A. The position would have been different, as pointed out by their Lordships of the Supreme Court in the above reported case.
However, Mr. Mahmood Abdul Ghani was unable to refer me to any such provision in the 1. R.
0. Despite repeated requests to do so. I am, therefore, of opinion that the mere fact that the Registrar, Trade Unions, wrongly granted a provisional certificate of C.B.A. For which there is no provision in the law {{FOOT NOTE}}
(1) PLD 1963 SC 652 {{FOOT NOTE}} and when the Union was entitled in law to a proper certificate of C. B. A. Cannot be considered to be an impediment in the way of the respondent Union to exercise all the rights and perform all the functions of the C. B. A, under the law,
7. Mr. Mahmood Abdul (Mani sought to argue that the function of granting or refusing a certificate of C. B. A. Has been conferred by the Legislature on the Registrar of Trade Unions alone and it is not within the province of the Labour Court to encroach upon his authority. In support of his contention he cited certain authorities. I have to quarrel with this proposition. The view, moreover, that I have taken in fact does not touch upon this proposition. All that I have held in this judgment is that as the respondent Union was entitled under subsection (1) of section 22, I. R.
0. To proper certificate of C. B. A, if any error had been committed by the Registrar in the wording of the certificate, that would not operate as a bar or impediment to the performance by the respondent Union of its functions as C. B. A. Under the law.
' This brings me to a consideration to the merits of the case. It is a well settled principle of law that the two most important considerations for adjudicating upon demands of workmen are, firstly whether the benefits demanded or claimed are being enjoyed by workmen in similar or comparable organizations and, secondly whether the financial position of the' establishment for the workers of which such demands are made is in a position to grant or pay for such demands. In the instant case, no evidence whatsoever, has been led to show that any of the demands which have been made by the respondent Union or which have been granted by the learned Labour Court are being enjoyed by workmen in similar or comparable institutions. In the absence of any such evidence it will obviously not be possible to award these benefits to the workmen in the appellant establishment. Of course, this will not affect or prejudice any rights or benefits to which the workmen in the appellant establishment are entitled under law. But so far as negotiable demands are concerned they could only be properly awarded if the benefits claimed are enjoyed in organization engaged in similar undertaking.
8. It is also not known what would be the cost to the appellant establishment of granting the benefits awarded by the learned Labour Court and whether the appellant establishment is financially capable of bearing the same. In his affidavit before the learned Labour Court, Moid Azeem, Manager of the appellant company stated that during the year ending 30th June, 1980 the company has suffered a net loss. However, the balance-sheet of the company was not produced on the plea that the Accountant of the company had not been able to forward the same. The balance-sheet for the year ending 31st March, 1979 was produced before this Tribunal and it shows that the company had made a net profit of Rs, 2,25,427.69. In the absence of the balance-sheet for the year ending 31st March, 1980 it cannot be determined whether for that year the company had undergone losses as alleged by its Manager, Moid Azeem, or it had made profit and, if so of what amount. However, even, if it be assumed that the company had made profit in the year ending 31st March, 1980 the award of benefits, unless they are of such a nature that they must be considered as essential to the well-being, safety or welfare of the workmen, cannot and should not be readily granted unless there is evidence to show that similar benefits are being enjoyed by the organizations and institutions carrying on similar operations in or about the areas where the workmen claiming such benefits are employed. Since there is no such evidence on the record in the instant case, the benefits claimed by the respondent-Union should not have been allowed.
11. For the foregoing reasons I would set aside the impugned decision of the learned Labour Court and allow the appeal. Before closing this judgment, I would like to clarify that it will not operate to prevent the respondent Union from instituting fresh proceedings for the grant to them of any benefit which are being enjoyed by workmen employed in organizations engaged in similar undertakings.