' MAI4MOOD AKHTAR (MEMBER).-This is an appeal against the order, dated 12th May, 1983 of the learned Senior Member of this Commission in the reference made by the Federal Government in the industrial dispute between Pakistan Cigarette Labour Union, Karachi (hereinafter called the union) and Pakistan Tobacco Company Limited, Karachi (hereinafter called the Company). The facts of this case are that the union served a charter of demands on the company on 30th December, 1981 followed by notice of strike on 16th January, 1982. The dispute was under conciliation when the union submitted a revised demand notice giving up some of its demands, are reducing the others, but on 17th June, 1982 the Federal Government referred the dispute to this Commission under section 33 (1) of the Industrial Relations Ordinance, 1969 (hereinafter called the I. R.
0.). The original charter of demands was referred by the Federal Government for adjudication. The Company pleaded ignorance of the revised charter of demands before the Senior Member and pleaded that adjudication be confined to the original demands charter referred by the Federal Government.
2. The union made application for interim award against which legal and other objections were raised by the Company, which were decided by the Senior Member. In the main case the union filed a statement of claims supported by the affidavit of their President, who also offered to be cross-examined. They also produced twelve witnesses including the Company's Commercial, Production and Finance Manager. The company also filed a written statement "supported by an affidavit" according to learned Senior Member but Mr. A. Hafiz appearing for the appellant contended that no such affidavit had been filed, and the statement was factually incorrect.
Nothing turns on this fact however. The company when it was their turn to lead evidence informed the Senior Member that they did not want to produce any evidence. The parties by their mutual consent elected to submit their arguments in writing. The Senior Member thereafter awarded an increase of 4% in the basic wages, 10% increase in the House Rent Allowance and increase of Rs, 12 p m. In the Conveyance Allowance. He directed that the total financial impact of these increases should then be deducted from Rs, 24 lacs and the balance paid to the workers by way of increase in the basic wages and rejected the other demands. This award was given on 12th May, 1983. It was to remain in force from 1st January, 1982, for two years, i. e. Till 31st December, 1983.
3. The counsel for the appellant pleaded that instead of 4% increase in basic wages, the award when it came up for implementation actually resulted into some 9% raise in basic wages. The award presented practical difficulties in implementation. It disturbed basic pay structure by granting percentage increase. The pay scales limited to 20 years span would be exhausted earlier.
Certain employees were likely to step out of their pay scales. As the staff strength hardly remained static each month therefore the quantum of basic wages and provident fund contribution would fluctuate every month. Thus earning workers dissatisfaction by giving varying amounts of basic wage every month etc.
4. We have given anxious thought to these practical difficulties stated by the counsel for the appellant to be inherent in this part of the award. We however find that the award which is to expire on the 31st December, 1983 has hardly two more weeks of its life. Whatever the difficulties, they have already been faced and surmounted. It would hardly avail anything if merely on this ground, a new formula is prescribed and status quo is reversed, prescribing new basic wages etc. Further, although there remain hardly two more weeks of the life of the impugned award, and appellants by now should have gained full knowledge and experience of the practical difficulties of implementation of the award, yet the appellants were not able to cite even a single specific case of any worker in whose case the difficulty of implementation was experienced. The counsel for the respondent-Union asserted that no Such complaint had even been made by any worker to the Union. Under the circumstances the practical difficulties so pleaded by the counsel for the appellant were hypothetical and imaginary. For the foregoing reason we do not see any occasion or reason to disturb the award on this score,
5. The counsel for the appellant further argued that the learned Senior Member did not consider the evidence before him showing that the appellant company was already in terms of money spent on wages, and amenities and facilities, etc. For the workers head and shoulders above any of the other tobacco and other similar establishments. Thus since the company was the best paymaster, it would not have been forced to revise its basic wages etc. For workers.
6. The argument that since the Company was already paying much better wages and other facilities in overall terms as compared, to all other employers in the same industry in Karachi even after the most recent settlements signed by such other employers in the same industry with their respective Unions keeping in view all relevant factors including the element of cost of living, therefore it was not liable to increase the wages of its workers any further, as there was already a wide difference in total wage level etc., is untenable and open to serious question on two grounds ; Firstly, a comparison in order to be valid, in circumstances such as the present, has to' be among the equals and the unequals, among the similar establishment and not the dissimilar establishment.
7. In a judgment of the Full Bench of the Supreme Court of India in Villiam Sons (India) Private Limited v. Their Workmen (1) Mr. P. B. Gajendragadkar, C. J. Observed : "In comparing the wage structure with those prevalent in similar establishments Tribunals should bear in mind all the relevant facts in relation to the problem e. g., the extent of the business carried on by the concerns, the capital invested by them, the profits made by them, the nature of their business, their standing, the strength of their labour force, presence or absence and extent of reserves, dividends declared, etc. Etc. Tribunal would not be justified in basing its award on the wages prevalent in a much bigger concern with a much bigger capital and with a much larger business spread all over the country."
(Underscoring supplied)
8. The following information gleaned from the record before the learned Senior Member is illustrative of the wide disparity between their appellant and the rest of the cigarette manufacturing factories of Karachi' The appellant company could not thus be validly compared with any of them. The appellant company was a class by itself its wages and facilities1 etc. To its employees could not be compared with other comparatively small, establishment compared.
Comparative Statement of Five Cigarette Factories Capital Invested (Rs.000)Capital Reserve and Surplus (Rs.000)Net Profit made (Rs.000)Dividend declared (Rs.000)Extent of Business (Rs.000)
Pakistan Tobacco Co. Ltd.
Annex. ---M---144,192 69,474 243,142 23,792 2,474,867 Premier Tobacco 2nd Ltd.
Ext. P. W. 7/127,500 38,514 11,301 4,538 1,287,886 Tobacco International Ltd. Ext. P. W. 12/28,000 828 1,416 960 157,762 Suovenier Tobacco Co.
Ltd. Ex. A. W. 8/17,267 16,432 1,965 1,090 190,612 Mughal Tobacco Ex. A. W.
9/1.5,400 5,193 964 120,000
9. Thus the argument that since the Company was already paying for more wages to its workers than other cigarette manufacturing companies, therefore, its workers wages should not be increased is untenable, on the ground that, the learned Senior Member or indeed any tribunal Would not be justified in basing his or its award in a much bigger concern with a much] business spread all over the country on the wages etc. Of the companies which are so dissimilar and small.
10. Secondly, the argument that those paying more wages should not increase them till wide gaps remain in the wages paid by them and their competitors, if followed to its logical conclusion, would result in wage freeze in the Company till uniform wage rates come to prevail in the cigarette manufacturing industry. The prevalence of uniform wage rates in a from market economy may be an economic dream but not an economic reality. It means that employers shall be buying unequal skills at equal prices, which can never happen. That operator of a highly complex machine shall sell his labour on prices equal to the operator of a simple machine which is not what happens besides being unjust. That pricing of labour due to supply and demand relationship between jobs and available skills would cease to exist is simply not possible in a free market economy. Thus the whole argument is divorced of prevailing reality and is therefore repelled.
11. The counsel also pleaded that since the employees Cost of Living Act, 1973 had taken care of the rise in the cost of living, there was no jurisdiction for the award. We do no agree with this view, for while the Act allows a general increase due to rise in cost of living it specifically leave room for local or special adjustments by not barring increase in wages etc. Otherwise e. g. Through Collective Bargaining. We are of the view that increase in wages through acts of Courts is also not barred by the Act.
12. The counsel then argued that the learned Member was in serious error in requiring the parties to produce a statement showing total financial impact of the financial demands of such of the last four agreements executed in respect of Karachi factory, prior to the agreement of 25th May, 1980 alongwith a statement of gross and net profits made for the corresponding period in respect of that factory.
13. We cannot help taking notice of the fact that the statements of total financial impact of agreements and gross and net profits were never produced before the Senior Member. The appellants submitted on 2nd May, 1983 at the arguments stage that "the preparation of separate profit and loss account for the Karachi factory for any one year is likely to take about three months in view of the system of "marginal cost analysis" Similarly a considerable period would be required to work out the financial impact of the various past agreements". On this basis they requested the Court to "give its final decision in the above industrial dispute on the basis of relevant evidence only....
14. It is true that the burden of proof about the existence of certain facts is on the party who asserts their existence and wants the Court to hold a legal right or liability on the basis but section 106 of the Evidence Act provides an exception to that rule. It states : "106. Burden of proving facts especially within knowledge.-When any fact is especially within the knowledge of any person the burden of proving that fact is upon him."
15. Thus, since the information as to what was the financial impact of the agreements signed between the Union and the Company, was within the especial knowledge of the company, as also the gross profits and net profits for the duration of four agreements prior to 25th May, 1980, the burden of proof was on them. The Company however failed to discharge its burden of proof and did not produce those documents despite being expressly required by the Senior Member. We are of the view that the information required by the learned Senior Member was, admittedly, by no means impossible to be produced. At the most they could have requested for some period of time.
Also the appellant wants it to be believed that the appellant a modern multinational cigarette manufacturing company having one of the advanced systems of accounting had not calculated the financial impact of the settlements when they were entering into them and also in the succeeding years when they were paying their financial cost year after year. Similarly they want it to be believed that they already did not have the statistics showing profit or loss made by each unit. That the production statistics were available for the Karachi factory, but whether it made profits or not needed three months per year to be calculated, leads, under the circumstances of the case, to only one conclusion that the company did not want to produce the information required. Illustration (g)given under section 114 of the Evidence Act provides that : "The Court may presume---- (a) that to ( f)-------
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."
16. Mr. M. Munir has stated in his book-Principles and Digest of the Law of Evidence Pakistan Edition, Volume II (Page-1180) ; "It is against sound legal principles for those relying upon a set of facts to withhold from the Court that best evidence in their possession which would throw light on the matter to be investigated by it. It is in these circumstances, reasonable for the Court to draw an adverse inference from the failure of a party to produce the best evidence in its possession to prove a fact the initial burden in regard to the proof of which has been discharged by the other party.
' If a party has failed to produce the best evidence in his possession, it will be presumed that if such evidence were produced it would have gone against the case of the party concerned."
17. We are thus of the view that the figures on financial impact of the settlements and not and gross profit of the establishment were unfavourable to the appellant-Company. Under the circumstances since the Union had claimed the impact of 25th May, 1980 settlement to be Rs, 24 lac and the appellant had not denied it the learned Senior Member was right in fixing the total financial impact of the award as equal to that amount.
18. About the house rent, the counsel for the appellant stated that there was no justification or evidence for increase in rent. Since there was no evidence no award could be granted to increase rent as was held in 1966 PLC 281. He cited the case of Supreme Court 1961 PLC 1169 to state that House Rent is demand for increase in pay. We have carefully considered these submissions. We are however persuaded by the argument of Mr. Obaidur Rahman the counsel for the respondent who has stated that the phonomenon of periodic increase in house rent had been recognised by the law-giver. Section 9 (2) of the Sind Rented Premises Ordinance, 1969 empowered the landlord to increase rent at the rate of maximum 10% after every three years of tenancy. Human nature being what it is, the maximum in such matters in practice is regarded as the minimum and more than 107 increase was being demanded. Even otherwise the rate of inflation as compared to 1969 when maximum increase in rent after three years of tenancy was fixed at 10%, had according to him accelerated in the recent years.
19. Considering that the award became affective from 1st January, 1982 while the settlement, dated 20th May, 1980 took effect from 1st January, 1979 the increase of 10% in the house rent at Karachi after a period of three years awarded by the learned Member seems to be reasonable to us particularly because there was no evidence before the learned Member to the contrary. We therefore do not propose to interfere with his award in this behalf.
20. Conveyance Allowance-The counsel for the appellant stated that no evidence had at all been recorded to warrant the finding of adequacy of the conveyance allowance. He stated that since May, 1980 to January, 1982 the bus fare had not been increased at all, consequently there was no justification for increase in the conveyance allowance. In their written statement the Company had stated that the workers using the worker's chartered transport were charged 50% of their daily conveyance allowance for their one way trip. This facility was availed by about 1/3rd of the work force. More than 60% were residing within the radius of one mile of the factory for which distance bus fare was hardly.Rs, 1 to 2 both ways. While the workers got the Conveyance Allowance of Rs, 3.04 per day. For those living in remote places like Landhi, Korangi and Malir etc. The maximum bus fare both ways worked out to Rs, 3.50 per day whereas the Company paid them Rs, 3.54 per day.
On this ground the demand for increase in the conveyance allowance was urged to be rejected.
21. The basic premise of this argument is that a conveyance allowance is meant for worker's expenses on account of transport from and to hi place of work. This restrictive interpretation put on the purpose of conveyance allowance is not justified in our opinion. We are of the view that the conveyance allowance is meant to defray some and not all the expenses of a workman on account of conveyance, which does not necessarily mean expenses on coming to and going from the place of work.
22. Further the statistics quoted by the Company regarding the bus fare spent by workman living in Landhi, Malir etc. And the cost of Company's transport, the assertion that 1/3rd of the workforce were using Company's transport, the assertion that 60% workmen were residing within a radius of one mile of the factory and their return fare by bus was hardly Rs, 1 to 2 per day were not supported with any evidence by the Company. Under the circumstances, we consider that an increase of about 40 paisa per day or Rs, 12 per month in the conveyance allowance was not unjustified.
23. Also according to the respondents evidence before the senior Member (A. W. 2) two rates of conveyance allowance viz. Rs, 3.54 and Rs, 3.04 per day were prevalent in the Company. These rates were prevalent since 1980 settlement which became effective on 1st January, 1979. The quantum of increase in conveyance allowance granted by the learned Member in his award which become effective from 1st January, 1982 i. e. Three years afterwards was paisas 12 per day. In terms of percentage increase came to about 11% and 13%, respectively. Considering the rise in the cost of petrol, cost of spare parts, costs of vehicles, wages of drivers, cost of repairs etc. Of vehicles, which did reflect on the fare charged by the transportation system in Karachi, this increase of 12 paisa per day does not seem to be unjustified to us.
24. The upshot of the above discussion is that we do not find this appeal to be of any substance, which is accordingly dismissed.