' This appellant company by separate orders, all dated 8th May, 1980 dismissed from their service 3 chowkidars (Security Guards) namely Zari Gul, Bashir Ahmad and Sultan Muhammad, on the charge of being guilty of misconduct, which in the case of Zari Gul was that he had unauthorisedly assembled on a non-working day in table from the wood belonging to the appellant company and without permission had removed the table from the factory premises, while the misconduct of the other 2 chowkidars is said to have been that they had assisted Zari Gul in the removal of the table from the factory premises. The dismissal orders were based on the report of the enquiry officer, Abdul Ahad who had found the 3 chowkidars guilty of the aforesaid charge. It might be stated here that the said 3 chowkidars had also been charged with being responsible for the the of 11 polythene bags of sugar, but apparently a separate enquiry into the said charge was held against them. In any case that charge does not in any manner form the subject matter of the present proceedings.
The respondent Union, which is the collective bargaining agent in the appellant company, took up the cause of the chowkidars and served upon the appellant-Company a notice under section 26(l), I. R. 0., which is dated 16th June, 1980 and as the resulting bilateral negotiations between the parties failed, the C. B. A. Served a notice of strike upon the appellant company, which notice is dated 29th June, 1980. As the conciliation proceedings under section 30, I. R.
0. Also failed, the respondent Union filed an application under section 32(1-A), I. R.
0., before the learned IVth Labour Court for adjudication of the dispute. The appellant company questioned the maintainability of the application filed by the respondent Union on the grounds, firstly, that the said application was barred by section 25-A, I.R.O., secondly, that the respondent Union was precluded from raising an industrial dispute in respect of the 3 chowkidars by reasons of the settlement arrived at between the collective bargaining agent, and the appellant company, according to which both parties had undertaken not to raise any dispute of any nature ; and thirdly, that in any case the Labour Court was not competent to go behind the domestic enquiry proceedings culminating in the dismissal orders of the 3 chowkidars, as no such power was vested in it while adjudicating an industrial dispute. On merits, it was claimed by the appellant-Company that the misconduct of the 3 chowkidars had been fully established in a fair and impartial domestic enquiry and that the 3 chowkidars had further been served with a second show-cause notice to which they had submitted their replies but the same were found unsatisfactory, The learned Labour Court, by its award, announced on 1st September, 1981 repelled the objections and contentions of the appellants company and as it was of the view that the evidence before the enquiry officer did not establish the misconduct of the 3 chowkidars, it accepted the demand of the respondent Union and directed the appellant-Company to reinstate the 3 chowkidars with back benefits. Aggrieved by this award, the appellant company has come up in appeal to this Tribunal.
2. I have heard Mr. S. Qamaruddin Hassan for the appellant company and Mr. All Amjad, the learned counsel for the respondent Union. Mr. Qamaruddin Hassan assailed the award of the learned Labour Court on the following grounds :-
(i) No industrial dispute can be raised in respect of the dismissal of a workman in view of the specific provisions contained in section 25-A, I. R.
0., for the redress of such grievance.
(ii) The raising of the industrial dispute, in the instant case, was further barred by the settlement arrived at between the appellant company and the respondent Union on 17th January, 1980 by which both parties had undertaken not to raise any fresh demand during the currency of the settlement ;
(iii) The learned Labour Court was not competent to go behind the report of the enquiry officer and assess the evidence led before the enquiry officer as the provisions of subsection (5) of section 25- A, I. R. 0 conferring such powers on the Labour Courts, are not available to the Labour Court while adjudicating an industrial dispute.
(iv) The charges against the 3 chowkidars were duly established against them in a domestic enquiry.
3. Mr. Ali Amjad, the learned counsel for the respondent Union on the other hand strongly supported that impugned award of the learned Labour Court. In respect of the first and the second contentions raised by Mr. S. Qamaruddin Hassan, Mr. All Amjad submitted that even the repealed Standing Order IS, which provided for the raising of an individual grievance, such a grievance could be raised as an industrial dispute. According to the learned counsel, after the enactment of section 25-A, I. R.
0., an individual grievance could be raised both under section 25-A and also by means of an industrial dispute. In support of his contention, he relied upon the decisions reported in PLD 1975 Kar. 811 and 1976 PLC 38. Mr. Ali Amjad also referred to the amendment in the definition, of "industrial dispute" made by Act XVI of 1975, which has barred the raising of an industrial dispute in respect of the enforcement of any right guaranteed or secured to a workman under any law, award or settlement, and submitted that since it has been held that chowkidars are not workmen for the purposes of the Standing Orders and are thus not entitled to field grievance petitions against the remintation of their services under clause (3). Of Standing Order 12, no question of enforcement of any statutory right of the 3 chowkidars arose in the instant case and hence the industrial dispute in respect of the termination of their employment raised by the respondent Union is valid. In regard to the third contention of Mr. Qamaruddin, based upon the agreement between the appellant company and the C. B. A., Mr. Ali Amjad submitted that the settlement did not preclude the respondent Union from raising an industrial dispute unconnected with the matters covered by that settlement. In support of his contention, he relied upon a decision from the Indian jurisdiction reported as Jeypore Sugar Mills v. Their Workmen (1). In regard to the last contention raised by Mr. S. Qamaruddin Hassan, Mr. Ali Amjad took me through the evidence recorded by the enquiry officer and submitted that the sole witness of the incident examined by the company against the 3 chowkidars was Essa Muhammad, whose evidence did not establish the guilt of any one of the chowkidars and even if full credence were to be given to his evidence, he implicates only chowkidar Zari Gul and not the other 2 chowkidars.
4. As the first 2 contentions raised by Mr. Qamaruddin are closely interrelated, I will proceed to examine them together. Section 25-A was added to the I. R.
0. By Ordinance IX of 1972. By the same Ordinance, which was promulgated on 13th April, 1972 Standing Order 18 providing for redress of grievance of individual workman was repealed. It is pertinent to note that the Standing Order specifically contemplated that an individual grievance of a workman could be raised or taken cognizance of as an industrial dispute and if any particular grievance was so raised, then the workman was not entitled to file a complaint in respect of it before the Labour Court. Section 25-A, I. R.
0. Does not specifically contemplate the raising of an industrial dispute in respect of an individual grievance of a workman, but on the other hand, an individual grievance under the said section can only be raised by a workman as defined in clause (xxviii) of section 2 I.R.O. That definition however, exclude' workmen whose services have been terminated who are no longer in employment, and its only for the purposes of proceedings relating industrial dispute that persons who have been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay off or removal has led to that dispute, are deemed to workers. As such persons whose services have been terminated or who are no longer in employment would appear to be precluded from the purview of section 25-A, I R.
0., itself. However, as explained by this Tribunal in the case of Joh nson & Johnson v. Zubair Ahmad
(2) persons whose services have been terminated, if they were workmen as defined in the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, could file individual grievance petitions under the provision of clause (3) of Standing Order 12 read with section 25-A, I R.
0., if the 3 chowkidar had come within the purview of the definition of "workman" as contained in the Standing Orders, no industrial dispute could hay been raised in respect of their dismissal from service as in that case they would have had statutory right to raise an individual grievance under clause (3) of Standing Order 12, and in consequence of the amendment made in the definition of industrial dispute as contained in the I. R.
0., and clause (a) of subsection (12) of section 22, I. R.
0., neither th enforcement of any right guaranteed or secured to a workman under the law can come within the purview of an industrial dispute, nor is the collective bargaining agent empowered to undertake bargaining in regard {{FOOT NOTE}} (1)(1955)2 PLJ 744 (2) 1980 PLC 822 {{FOOT NOTE}} ' to matters which relate to the enforcement of any right guaranteed or secured to any workman under any law, other than the I. R.
0. Or an award or settlement. It is thus clear that on the one hand, no right under any law, excluding the I. R.
0., or an award or settlement was guaranteed or secured to the 3 chowkidars, whit could be legally enforced by them and on the other hand, there is no baron the collective bargaining agent raising an industrial dispute in respect of the termination of service of the 3 chowkidars. In fact as already pointed out the very definition of workman as contained in the I. R.
0. Contemplates the raising of an industrial dispute in respect of a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment, I am supported in my above view by 2 decisions of the Karachi High Court, reported as (1) Employees' Union v. Mono Motors and another (1) and Messrs International Laboratories Employee's Union v. Sind Labour Appellate Tribunal (2). In the case of Mono Motors a Division Bench of the Karachi High Court held that a dispute relating to establishment of Workers' Participation Fund under the Company's Profits (Workers Participation) Act, 1968, was an industrial dispute an that the workers' Union was entitled to seek remedy either by way of au adjudication and/or enforcement by Labour Court. The aforesaid decision, however, was given before the amendments effected in the definition of industrial dispute in the R. O., section 22(12)(a) and section 34, I. R.
0. The decision in the case of International Laboratories, however, is not only more to the point, but was in respect of a dismissal of a workman on the charge of misconduct. It was held by a Division Bench of the Karachi High Court in that case that "2 remedies are provided by the Statute for re- instatement, one is by way of individual grievance under subsection (6) of section 25-A, and the other by way of industrial dispute under section 34."
5. It next falls to be examined whether the proceedings before the learned Labour Court were maintainable and an industrial dispute could be raised in view of the settlement arrived at between the appellant company and the respondent Union on 17th January, 1980. That settlement covered both the charter of demands by the respondent Union and the demands list of the appellant company and was in the nature of package deal as is clear from the short recital of the case contained in the settlement itself, which reads as follows :- "Whereas the Union submitted a charter of demands containing 22 points to the company, vide their letter No, BEU/005/79, dated 1st July, 1979.
' Whereas the company also served a demand list containing 12 points on the Union vide company's letter dated 1st July, 1979.
' The copies of the Union's letter dated 1st July, 1979 along with a copy of their charter of demands and company's letter dated 1st July, 1979 covering their charter of demands are annexed hereto and marked as given hereunder Union's letter dated 1st July, 1979 Union's charter of demands Company's letter dated 1st July, 1979 Annexure 'A' Annexure B-1 to B-5 Annexure 'C' {{FOOT NOTE}}
(2) 1976 PLC 38 (1) PLD 1975 Kar. 811 {{FOOT NOTE}} ' Company's charter of demands Annexures D-1 to D-2 Whereas bilateral discussions and negotiations took place, as provided in the section 26 of the Industrial Relations Ordinance, 1969, on the aforesaid charter of demands served by the Union and the company on each other.
' Whereas both the parties appreciated each other's position and taking into consideration the rise in Cost Living accrued during the last two years and all the demands and claim of the Union contained in their charter of demands referred to above and those taken up during the course of collective bargaining and reached an amicable agreement more specifically described as hereunder."
' A bar against the raising of any industrial dispute by either party during the period of the settlement is contained in clause (b) under the subheading of "purpose and scope of agreement".
The said clause reads as follows :- "(b) It is agreed that agreement is in nature of a package Deal and is in full and final settlement of all demands contained in the Union's as well as company's charter of demands annexed hereto. It is further agreed that this agreement will remain in force and winding on both the parties for a period of two years i. e. From 1st July, 1979 to 30th June, 1981 and that for the duration of this agreement the Union as well as company will not re-advance any demands which were included in their respective charter of demands and will also not raise any fresh demands whatsoever."
6. A plain reading of the above clause makes it clear that not only the re-advance of any demands contained in the charter of demands by the C. B. A., or in the demands list of the appellant company is barred during the period that the settlement is in force, but further, during the said period, neither the C. B. A. Nor the company would be entitled to raise any fresh demands whatsoever.
7. Mr. Ali Amjad sought to argue that despite the apparent binding language implied in the aforesaid clause in the settlement the intention of the parties was that the bar should be applicable only to matters covered by the demands of the respective parties and the bar cannot be deemed to apply to matters which were not even within the contemplation of either parties, and at any rate the bar cannot be made to apply to an unlawful act on the part of the appellant company. He sought support for his contention from the decision of the Labour Appellate Tribunal of Calcutta reported as Jeypore Sugar Company Ltd. And Their Workmen (1) The facts of that case were that a settlement was arrived at between the company and its workers in regard to certain items of disputes. During the period that the settlement was in force, the workers went on strike in protest against an assault on a Union official by an officer of the company. Thereupon the workers who participated in the strike were dismissed on the ground that they had not only violated the terms of the settlement but also the Standing Orders providing for dismissal if workers went on strike in contravention of the industrial law for the time being in force. It was held by the Labour Appellate Tribunal Calcutta that "as it could never be in the contemplation between the parties while reaching the settlement that a dispute would arise over an assault of a workman by an officer of {{FOOT NOTE}}
(1) (1955) 2 PLJ. 744 {{FOOT NOTE}} ' the company during the next crushing season for which a strike would probably become necessary the strike was not in contravention of the law and hence the dismissal of the workmen was not justified. It was further held that a dispute regarding an alleged assault of a workman by officer of the company cannot be considered an industrial dispute within the meaning of the Act.
The provisions in the settlement upon which the company relied upon for holding that the strike was illegal and in contravention of the law, was to the following effect :- "The Union given undertaking that there shall be no strike till the end of the next crushing season."
8. The said undertaking, however, was not in the operative part of the settlement. Furthermore, as found by the Tribunal, there was no dispute regarding such strike to be settled in the agreement nor it would appear that the undertaking was in consideration for any of the disputes settled. The facts of the instant case, however, are material different. Apart from the fact that an undertaking in clear and in unambiguous words had been given that no demand of any nature would be raised during the period that the settlement was in force and such undertaking was given both by the company as well as the respondent Union, but as is clear from the undertaking there was a package deal and the under taking was given as a part of the package deal in consideration of the settlement of the demands made by the Union and the demand list of the company. My learned predecessor, in the case of Employees' Union v. Messrs Johnson & Johnson (Pak.) Ltd. Karachi (1) while commenting upon the sanctity attached to settlement and the effect of a bar contained in the settlement to the raising of a demand, observed as follows :- "A settlement arrived at between the parties must be given due weight to as to maintain industrial peace. Even the Ordinance has fixed a period of operation of a settlement for two years. The intention of the Legislature appears to be that when a settlement had been arrived at between the parties the terms of the settlement must remain binding on the parties for sufficiently long period, so that the management and the workers are able to work in amity and peace. I would hold that the Union could not raise a demand in respect of any matter involving financial implications during the pendency of the settlement dated 16th February, 1972."
' The above observations are based on numerous decisions of the superior Courts. I will refer to two such decisions. In the case of Adam Jute Mills v. Province of East Pakistan, a Division. Bench of Dacca High Court, while repelling the contention that the Government has the power to cancel an award based on a settlement under the Industrial Disputes Act, 1947, observed as follows:- "Now an award based on a settlement is nonetheless an award by a Tribunal and the law gives greater sanctity to it and the parties to the award have to abide by it whether they like the terms of the award or not."
9. In the case of Siemens (Pak.) Employees' Union v. Messrs Siemens (Pak.) Engineering Company Ltd., Karachi (2), Waheeduddin J., while considering a settlement arrived at by the workmen relinquishing {{FOOT NOTE}}
(1) 1975 PLC 205 (2) 1966 PLC 274 {{FOOT NOTE}} ' all pending demands and providing for counting of lay off period for purposes of annual increment, but not shown to have retrospective effect, observed as follows :- "In law parties are bound by the terms of the agreement accepted by them and they are not entitled to claim any concession which has not been granted to them."
10. I am conscious of the fact that in the case of Messrs Attock Oil Co. Ltd. v. The Supreme Body of Oilfields League and Refinery Union, Rawalpindi (1), a Division Bench of the defunct High Court of West Pakistan sitting at Lahore, while examining a settlement containing an undertaking given by the workmen not to raise or pursue, during the operation of the settlement, any demand involving financial commitments/expenditures, had taken the view that the above undertaking cannot be read independent of the clause of the agreement which lays down that the terms of the agreement extend to all demands in dispute in existence upto the time of the agreement and/or pending before the Industrial Court and therefore, it was held that the contention that the Union by the agreement had closed the doors upon themselves of all these remedies which were open to them under the law for any new dispute, which might crop up during the period the agreement subsisted, was without force but that decision was based upon the facts of that particular case and was primiraly influenced by the clause in the agreement restricting the application of the agreement to the disputes or demands in dispute. In the instant case, the bar in the settlement is couched in very wide terms and not only bars the re-adjudication of any demands raised either by the C. B. A., or the company but also of any fresh demand, during the period that the settlement was to remain in force and this undertaking was specifically stated to be in the nature of a package deal Having voluntarily agreed to this package deal, the respondent Union cannot be allowed, during the period that the settlement is to remain to force from raising any demand, whatsoever, including the present demand. The settlement was to be in operation with effect from 1st July, 1979 for a period of 2 years. As such, the notice of raising of an industrial dispute given by the respondent Union on 16th June, 1980 the notice of strike given on 29th June, 1980 and the filing of the application under section 32(1-A), I. R.
0., by the respondent Union on 14th September, 198' were well within the period during which the settlement was to remain in force. All these steps, therefore, are in violation of the settlement mutually arrived at between the parties. Since the raising of any demand during the said period was prohibited by the settlement itself, the industrial dispute cannot be deemed to have validly raised and could not be agitated upon by the learned Labour Court. The application under section 32(1-A), I. R.
0., of the respondent Union was therefore, liable to dismissed on the ground alone and I would accordingly dismiss the same, set aside the impugned award of the learned Labour Court, and allow the appeal. As the period of operation of the settlement in question has expired, it will now be open to the respondent Union, if they so choose, to raise an industrial dispute in accordance with the law in respect of the matter of dismissal of the 3 chowkidars. {{FOOT NOTE}}
(1) 1969 PLC 869 {{FOOT NOTE}}