' This is an appeal under section 37 (3), I. R.
0., 1969, against the Award, dated 24th April, 1983, of the Labour Court No, V at Karachi, dismissing the application under section 32 (1-A), I. R.
0., 1969.
2. The facts briefly stated are that the union raised an industrial dispute by serving Notice of Demands on the respondent-establishment working as Selling Agents of bulbs and tube-lights manufactured by Electric Lamp Manufacturers of Pakistan Ltd., commission basis, followed by a strike notice. The conciliation proceedings having failed an application was made to the learned Labour Court on 10th April, 1982, for adjudication of the demands. In all 6 demands were raised, namely, (1) increase in basic salary and revision/fixation of scales, (2) increase in house rent allowance, conveyance allowance, medical allowance, medical treatment at the cost of the company in special cases, attendance allowance and canteen allowance, (3) bonus at the rate of three months gross salary, (4) withdrawal of total provident fund at the discretion of the employee and raising of amount of gratuity to one month's gross salary in all eventualities, (5) leave such as annual leave, casual and sick leave at the rate of 30 days, 15 days and 15 days, respectively with encashment and (6) 30 minutes margin in late attendance be given, loan facilities upto 24 gross salary, free of interest, advance for the month of Ramazan, overtime, conveyance charges at Rs, 10 and 15, respectively, substitute holidays against public gazette holidays, payment of Rs, 150 against shoes and Rs, 30 for caps alongwith supply of summer and winter uniforms, transfer of Irshad Ahmed Khan to be cancelled and that benefits in both the concerns should be equalized, 5% of the total proceeds/sales to be paid to the workers, one dozen bulbs or 6 tube-lights, free of cost should be supplied to the workers. The respondents resisted the demands mainly on the grounds that neither the comparable concerns were granting the same facilities to their workers nor the respondents have the capacity to pay as they had suffered considerable loss during the preceding 2 years and that the application filed for the adjudication of demands was not legally maintainable for the reasons that the General Secretary of the Union had not locus standi to file it.
The learned Labour Court recorded the evidence adduced by the parties and on assessment of the same found that neither the application was legally maintainable for the reason that the General Secretary who filed it had no locus standi and that the claim could not be sustained even on merits of the case and, therefore, dismissed the application. Aggrieved by the order of dismissal of the application, the appellant has come up in this appeal.
3. I have persued the evidence recorded by the learned Labour Court and have also heard the learned Advocate for the appellant, Mr. Choudhry Rasheed Ahmad and the learned representative for the respondents, Mr. Mahmood Abdul Ghani. The learned Advocate for the appellant has raised three-fold contentions ; firstly that the General Secretary of the Union was competent to file the application and, therefore, it was legally maintainable ; secondly, that the cost of living had substantially increased and, therefore, the appellant can succeed even on the merits of the case ; and thirdly, that in any case since the appellant was not afforded a reasonable opportunity of cross-examining the witnesses of the respondent, it was a fit case for remand to the learned Labour Court on that account. Mr. Mahmood Abdul Ghani for the respondents has resisted the case of the appellant in respect of all the three contentions raised on his behalf.
4. As regards the first contention to the effect that the application for adjudication of the demands before the learned Labour Court was legally maintainable, there is no dispute that the elections of the union were held in the month of December, 1981, before the industrial dispute was raised on 3rd January, 1982, when notice of demands was served on the respondent. There is also no dispute that the intimation with regard to the elections of the office-bearers of the union including that of the General Secretary was sent to the Registrar, Trade Unions on 12th December, 1981 before Industrial Dispute was raised. The Registrar, Trade Unions, admittedly accepted the change of the office- bearers on 4th February, 1982 and the application for adjudication of the demands was filed before the learned Labour Court on 10th April, 1982. The learned Advocate for the appellants has, therefore, contended that the Registrar accepted the change and registered the General Secretary of the appellant union much before the application for adjudication of demands was filed before the learned Labour Court, and there can possibly be no objection to his competence to file application before the learned Labour Court under section 32 (1-A), I. R.
0., 1969. In support of his contention, he has placed reliance on the recent decision of this Tribunal in the case of Employees' Union v. A. F. Fergusons and Company . This Tribunal, it appears reviewed its earlier view as would also appear from its decision in the case of Employees' Welfare Union v.
Adam Silk Mills Ltd. placing reliance on the authority of Sind High Court in the Can of Karachi Warehouse and Carrier Workers' Union v. Pakistan Warehouse Carriers' Union and 3 others wherein the learned Judge of the Hon'ble High Court held that it is incumbent upon the Registrar to refuse to register any change of office-bearers if in his view, it is in contravention of any of the provisions of the Ordinance or is in violation of the constitution of the Trade Union. In such case the Trade Union or any' officer or member of the Trade Union has the right to appeal to the Labour Court. In the absence of the refusal by the Registrar to register the change of office-bearers, it would obviously be persumed that no fault was found with the change of the office-bearers. In the instant case the industrial dispute was raised on 3rd January, 1982, before the change was accepted by the Registrar, Trade Unions registering the General Secretary of the Union on 4th February, 1982, however, before the application under section 32 (I-A) I. R.1 2 3 0., 1969, was filed. Therefore, placing reliance on the above-mentioned decision of this Tribunal, the acceptance of the change was made by the Registrar during the pendenc of the industrial dispute, much before the application was filed before the learned Labour Court, and, therefore, the defect was cured, if any, by acceptance of such a change and the objection of the competence the applicant/appellant General Secretary of the Union, in the circumstances of this case, cannot be sustained. It appears that the learned Labour Court relying on the earlier view of this Tribunal to the effect that acceptance of the change of the General Secretary by the Registrar was a condition precedent to raising of industrial dispute and initiation of proceedings by such General Secretary, held the application as non-lumaintainable. In the circumstances of the instant case stated by me above, I would with advantage, subscribe to the recent view held by - this Tribunal in 1982 PLC 630, and hold that the view adopted by the learned Labour Court holding the application as non- maintainable was not correct. {{URDU TEXT}}
5. Mr. Mahmood A. Ghani for the respondents in that context has raised another objection to the effect that since the settlement between the parties for the period 31st December, 1981, had become an Award of this Tribunal, it shall continue to be binding on the parties until the expiry of 2 months notice from the date of which either party informed in writing of its intention of no longer to be bound by the award, as provided under section 40 (5) , I. R.
0., 1969, and since 2 months' notice was no given so far, the award arising out of the settlement for the period ending on 31st December, 1981 continues to exist. He has further contended that this being purely a question of law can be raised even at this appellant stage, since it required no evidence to be led. Mr. Choudhry Rasheed Ahmed on behalf of the appellant has resisted this contention on the ground that it is being raised for the first time at this appellate stag and that in any case, it is not purely a question of law as it would require evidence to be led as to whether the 2 months' notice, if at all, was given or not and the appellant cannot be taken by surprise by raising such a plea at this belated stage. I am unable to agree with Mr. Mahmood A. Ghani for the respondents for the simple reason that neither the issue was raised at the earliest stage before the learned Labour Court nor I would consider it to be purely a question of law to be raised at this appellate stage as it would require evidence to be led for adjudication one way or the other, if at all. Accordingly, 1 do not find force in this contention also raised on behalf of the respondents and would find that the application filed by the appellant union under section 32 (1-A), I. R.
0., 1969, before the learned Labour Court was legally maintainable.
6. I would then come to discuss the next contention raised on behalf of the appellant that the demands raised were reasonable as well as justifiable, as after previous settlement between the parties, ending on 31st December, 1981, there has been substantial increase in the cost of living. Mr. Mahmood A. Ghani on behalf of the respondents has mainly contended that the circumstances which ought to be taken into consideration in adjudicating the demands of the nature put forward on behalf of them appellant are, firstly, whether the increase in emoluments and the faculties or benefits demanded by the workers' union are prevalent or are being granted or practised in comparable institutions, and secondly, the financial position of the management and its capacity to comply with the demands made by the workmen as construed by the superior Courts and Industrial Courts of Pakistan and those of Indian Jurisdiction. Reliance in that respect has been placed on a number of authorities. Reference can be had to some of them, 1960 PLC 559, 1961 PLC 1169, 1961 PLC 1217, 1961 PLC 1268, 1961 PLC 1288, 1962 PLC 1401, PLD 1968 Dacca 476, 1970 PLC 685 and PLD 1973 Kar.
167. The trend of these decisions would clearly indicate that the burden of proof would lie on the union to establish that the comparable concern are making similar C payments and benefits and that the management has also the capacity to pay. Reference in that respect is also invited to the case of Messrs Dalmia Cement Works Ltd. v. Dalmia Cement Workers' Unions etc..4
7. I would then examine the case of the parties on the basis of the evidence adduced by them in the light of the principles laid down in the above-mentioned authorities. On behalf of the appellant, Abdul Majeed General Secretary of the Union has been examined who has deposed only to the effect that since the previous settlement between the parties which ended on 31st December, 1981, there has been an increase in the cost of living and that the financial position of the respondent- Company was also sound. He has admitted that the respondent Company is not doing the job of manufacturing the bulbs and tube-lights and that it was doing business of selling such commodities as are manufactured by Electric Lamp Manufacturers (Pakistan) on commission basis. According to him the commission allowed to the respondent was 20% but no such evidence has been produced. On the contrary, the respondent has examined Israr Ahmed Khan, the General Manager of Electric Lamp Manufacturers of Pakistan Ltd., who has produced the certificate, dated 12th September, 1982, issued to the respondent vide Annexure 'A' clearly disclosing that the commission allowed to the respondent was at 6% and that they had not to pay the salaries of the sales staff, advertising expenses, freight and packing charges, rent of office and godown premises, electricity, water, telephone and telex charges etc., and the respondent incurred all these expenses from 6% commission that they get from them. The General Secretary, Abdul Majeed has further deposed that the respondent-Company suffered no losses during the years 1980 and :981. He has, however, admitted that he cannot produce any documentary evidence in support of his assertion or that the Company had made any profits during those two preceding years. He has also admitted that the workers were getting all the payments of, benefits and facilities in accordance with the settlement arrived at between the parties for the preceding year ending on 31st December, 1981. He has however, said nothing that any other comparable Concerns or Institutions have also been granting the same benefits and facilities that are being demanded by them. It has been asserted' that the question of transfer of Irshad Ahmed Khan is not an industrial dispute and is an internal affair of the Company. I have examined the rest of the demands individually and they would not stand the test of the principles laid down, specially when there is 'no dispute, that the union had already got a possible increase in respect, of the demands only recently during the preceding year in accordance with the settlement arrived at between the parties. The appellant has failed to adduce any evidence with regard to the increase in cost of living and have remained satisfied with a solitary word of the General Secretary of the Union. In fact, they have based their entire claim on conjectures and surmises and have failed to make any attempt to lead positive evidence even in that respect. The presumption would, therefore, arise that there was no evidence available with the appellant to the effect that cost of living had increased in the meantime, and that the comparable Concerns were paying better, and the respondent-Company had the capacity to pay, and had made profits and had suffered no losses. The appellant has therefore, failed to discharge the burden of proof which lay on him. On the contrary, what I find that the respondent-Company, though the burden of proof did not lay on it, has examined the evidence of Syed Asif Hussain Account ant of the respondent-Company, Shabbir Gangat Chartered Accountant and Israr Ahmed Khan, General Manager Electric Lamp Manufacturers Pakistan Ltd., in that respect. Syed Asif Hussain has deposed that the respondent-Company has been making payment and granting benefits and facilities to the appellant union in accordance with the earlier settlement for the preceding year and that since the comparable Concerns are not making better payments and granting better benefits and facilities and the respondent Company has suffered considerable losses during the preceding years 1979 and 1980 and has also suffered a net loss during the year, 1981 there was no justification for complying with any further demands of the appellant union for the present. His version in that respect has not at all been challenged in the cross-examination. Shabbir Gangat the Chartered Accountant has testified to the certified balance-sheets produced by Syed Asif Hussain the Accountant of the respondent-Company vide Annexure 'E' as its Auditor and had deposed that according to the audit report, the respondent- Company suffered a loss of Rs, 9,07,037.80 during the financial year ending 3 1st December, 1980.
He has also deposed that the loss for the year 1979 is also shown in the audit report as Rs, 6,44,280.90. His version is supported by the audit report and the balance-sheets. His version has also not been challenged in the cross-examination on behalf of the appellant-Union. The account balance sheets of the employer have been invariably relied upon as an authentic proof of the accounts maintained by them. Reference in that respect can be had with advantage to the case of Bannu Woollen Mills Ltd. v. Chairman, Industrial Court, West Pakistan, Lahore and others . In my view, therefore, there is neither an iota of evidence that comparable Concerns are making better payments and granting better benefits and facilities to their workers nor there is an evidence that the respondent-Company has the capacity to pay the same as they have suffered a considerable loss during the preceding years 1979 and 1980, as well as during the year 1981. Even, if the comparable concerns may have been making better payments and granting better benefits and facilities for which there is no evidence, the respondent-Company cannot be' compelled to pay the same in view of their week financial position as they would be having no capacity to pay the same.
I would, therefore, find that the appellant union has failed to prove the justification of the demands and I would not disagree with the conclusion arrived at by the learned Labour Court in that respect.
8. As regards the third contention raised by the learned Advocate on behalf of the appellant, I find no justification that the case be remanded to the learned Labour Court, as appellant union has sufficient opportunity to examine their evidence but they have failed to do so. The contention raised on their behalf is that they did not cross-examine the respondents' witnesses as they had no opportunity to do so. What I find from the record that on the date of hearing viz. 6th February, 1983, when Syed Asif Hussain the Accountant of the respondent-Company was examined neither the appellant nor his Advocate were present. No cause has been apparently shown for their non- attendance. Also on the earlier date of bearing viz., 17th January, 1983, when Shabbir Gangat Chartered Accountant and Israr Ahmed Khan, General Manager, Electric Lamp Manufacturers Pakistan Ltd., were examined on behalf of the respondents Abdul Majeed, General Secretary though present had not cross-examined the witnesses. The learned Labour Court passed the final order on 24th April, 1983 after about of months but no effect appears to have been made on behalf of the appellant union to get the evidence adduced on behalf of the respondents reopened to cross- examine their witnesses. It would, therefore, appear that whatever evidence was available with the appellant union was produced. It cannot reasonably be said that they were shut out from producing any further evidence on account of having not been afforded any opportunity for the same. It appears that the learned Advocate for the appellant finding his case weak on merits has raised this contention. Therefore, there appears absolutely no justification for remanding the case to the learned Labour Court for the purpose of recording of evidence as contended by the learned counsel appearing on behalf of the appellant
9. The result is that the appeal is dismissed. 1982 PLC 630 1980 PLC 18 1978 PLC 554 PLD 195$ SC 153 1966 PLC 306 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.