DECISION ' This appeal is directed against the decision of the Labour Court No, IV at Karachi, dated 12th October, 1983 who by the said order, had dismissed the application of Mehnatkash Union under section 32(1-A) of the I. R.
0., 1969.
2. The facts are that the Associated Constructors Limited who has union known as Mehnatkash Union preferred an application before the Labour Court under section 32(1-A) of the I. R.
0., 1969, against the Associated Constructors Limited that the Labour Court be pleased to give an award of direction to the respondent company to pay the bonus to the workers against the 4 months' wages/salaries. The appellant union had introduced itself as the registered body under the Industrial Relations Ordinance, 1969, and also represents through the Collective Bargaining Agent. The respondent establishment is a construction company carrying on business in Karachi and other parts of Pakistan. The appellant union gave a notice under section 26(1) of the 1. R. 0 , 1969, placing the charter of demands, the bilateral meetings took place between the Management and the Union, but the discussion regarding the acceptance of the demands failed. On failure of the talks, the matter was referred to the Labour Court praying therein that the Labour Court be pleased to award the bonus on the following grounds :-
(i) The company shall pay bonus for the financial year 1981, equal to 4 months' wages of all the worker who have completed one year service. The workers who has less than one year in service in the year 1981, shall receive bonus on pro rata basis ;
(ii) The wages and the salaries of the workmen is not consistent with the present cost of living when there is no parity in the terms of wages between this industry and other similar industries.
(iii) The respondent Company has earned huge profits in the financial year, 1981 and the profits on overall contracts.
(iv) The respondent Company paid 40 days wages as the bonus in the previous year, but failed to offer more than the agreed bonus.
3. The stand taken by the respondent-establishment is that the notice of demands is incompetent when the previous settlement was still in operation and that no fresh demand can lawfully be raised by the C. B. A. Until 31st March, 1982 by virtue of the settlement, dated 25th June, 1981.
' The respondent establishment, however, had taken specific plea that the bonus for the years 1977, 1978, 1979 and 1980, was in the nature of the ad hoc payment to be adjusted against the amount of bonus to be payable under section 10-C of the Standing Orders Ordinance, 1968, in the event of the establishment having made sufficient profits on the completion of projects and finalization of the accounts. The specific stand taken by the respondent is that in the construction industry the exact determination of profits and losses are not possible which can only be determined on the successful completion of the projects. In short, an explanation is given to the effect that the account for the year, 1981 has not been finalized and the balance-sheet shall take some more months for preparation.
4. I have heard the learned counsels, Mr. Shafique Qureshi for the appellants and Mr. Ehsan Akram for the respondent establishment.
5. The first and the foremost contention is that the General Body meeting was held on 1st January, 1982. The evidence of Sher Muhammad in this respect is very important and in his cross- examination he had admitted that the minutes of the meeting held on 1st January, 1982 do not refer the agenda notice and the names of participants in the meeting. This admission is very important from the point of view to assess the General Body meeting. It is necessary to give the notice of 7 days of General Body meeting to the members but the notice is not available either in the record i, e. Minutes Book or in the record of the case. It is, therefore, clear that the notice was not given. I have seen the register and the minutes book and perused the record of cross-examination of P. W. Sher Muhammad. It is full of contradiction and on the basis of it, it appears that General Body meeting was not held at all. There is difference of dates with regard to notice under section 26(1) of the I. R.
0., 1969, it is 3rd January, 1981. This notice was received by the Management on 3rd January, 1982.
There is a lapse of full one year and it is not accounted for by the party calling for the general body meeting. I further scrutinized the notice i. e. The charter of demands, dated 3rd January, 1981 which was received by the Management on 3rd January, 1982. Here also the same mistake and it is not explained whatsoever why a lapse of full one year has occurred. The notice of strike was given on 21st January, 1982. The conciliation meeting was held and it failed on 17th March, 1982. The case under section 32(1-A) of I. R.
0., 1969 on 3rd April, 1982 about 17 days after the failure of the conciliation talks. The filing of the case was belated and incompetent.
6. I have seen that the profits and loss and the balance-sheet is to be adjudication when the projects are completed. There is no evidence to show that the company made huge profits. There is a significant diselosure in the cross-examination of Sher Muhammad and his evidence is reproduced as under :- "It is not correct that I have raised this demand in order to stop the proposed retrenchment. Some of the workers have collected bonus equal to one month's wages from the company for the year, 1981. I cannot say that except four persons Yousuf, Ali Bahadur, Hunar Shah and myself all other workers have received the bonus for the year 1981. I cannot produce a list of the workers who have not collected bonus from the company for the year 1981. I admit the settlements Annexures 'B' and `D' to the reply statement. I admit the signatures of Ali Bahadur and Anwar Baig on Annexure 'E' to reply statement. I admit and identify the signature of Hunar Shah on Annexurc 'A' to the reply statement."
7. The above quotations of the cross-examination of this witness show that none-else was prejudiced excepting these 4 persons who were the office bearers and they wanted so agitate this particular petition to save the retrenchment.
8. On these two grounds, I would like to dismiss the appeal ; firstly the General Body Meeting was not held according to the procedure prescribed and the proper notices were not given. Therefore, the agitation by way of the application under section 32(1-A) was incompetent. Secondly, in the cross-examination, it is disclosed that excepting four persons none was interested in the present appeal.
9. The appeal is, therefore, dismissed.