' The above three grievance petitions under section 25-A of the Industrial Relations Ordinance, 1969 would be decided by this single order because they are against the same respondents and are based on the facts common in all the three petitions. In all these three petitions the supplementary agreement, dated 31-1-1981 has been assailed which was entered into between the C.B.A. Union and the management. The petitioners are salesmen of the respondent-Company. Muhammad Mushtaq Bhutta, petitioner was appointed on 30-5-1962. Muhammad Sadiq, petitioner was appointed on 23-5-1963 and Syed Zeshan Haider Zaidi was appointed on 16-8-1963. The basic salary of Muhammad Mushtaq Bhutta was Rs, 100 plus dearness allowance Rs,25 and plus commission of all the orders booked. The wages of the other two petitioners were Rs, 120 basic salary, dearness allowance Rs,25 and per cent commission of the orders booked. The petitioners alleged to be doing manual and clerical work in discharge of their duties having no supervisory, managerial or administrative functions and claimed themselves as workmen under the Industrial Relations Ordinance, 1969 and West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The petitioners asserted that their conditions of service regarding wages were improved by a bilateral agreement between the C.B.A. And the management on 16-12-1971 and commission was fixed as I per cent for sales of Rs, 50,000 per month and at the rate of per cent for sales over Rs, 50,000 per month; the rate of commission was also confirmed through agreement, dated 15-11-1976; this commission was paid to the petitioners for about 10 years and this commission amounted to Rs,1,500 per month and that was the reason that the basic pay of the petitioners was so low; the respondent No,2 C.B.A. Union gave a demand notice to the management on 1-7-1980; on 6-6-1980 the management wrote a letter to the General Secretary C.B.A. For revision of commission of salesmen but that matter was left undecided to be dealt with separately; a supplementary agreement was entered into on 31-1-1981 by the C.B.A. Vide which commission of the salesmen had been reduced to per cent and the supplementary agreement also adversely affected the rights of the petitioners because it allowed the management to assign duty of booking business after working hours or hiring outside salesmen, according to that agreement the management also prohibited the salesmen from soliciting orders from wholesale dealers and the management also reserved the right to reduce the commission further. According to the petitioners the existing terms and conditions of service recognized and maintained by the long-standing custom of usage and improved by collective agreement could not be changed to the disadvantage of the workmen and the agreement was also against the constitution of the C.B.A. Itself. In the alternative, it has been alleged that if the terms and conditions could be changed that could be done only by means of an agreement/settlement reached in accordance with section 26 of the Industrial Relations Ordinance and the supplementary agreement was neither a valid settlement nor it had any effect on the existing terms and conditions of service. It was alleged that the supplementary agreement was beyond the scope of the authority yes in C.B.A. And in excess of the powers vested in the office-bear the C.B.A. Had no right to enter into any agreement to diming take away the existing terms and conditions and that no demand was served by the management on the C.B.A.; no lock-out was and no conciliation proceedings were held. It has been allow this point was left undecided so a separate demand notice should have been issued and fresh negotiations should have been held. It was alleged that the respondents Nos, 4, 5 and 6, who signed the agreement were not entitled to hold offices under the Constitution of the Union; the President of C.B.A., Mr. Aal-e-Ahmad who signed the supplementary agreement was transferred from Rawalpindi to Karachi and had ceased to be the President because the President could be only from Rawalpindi Branch. It was also alleged that the office-bearers of C.B.A.
Had been given benefits and had been promoted immediately after the signing of the agreement and that the petitioners had been victimized for being members of the trade union. It was alleged that they served the employer with grievance notices on 2-4-1981, which were replied on 13-4-1981.
They prayed that the agreement, dated 31-1-1981 be declared as illegal and not binding on the parties and they be allowed commission at the prevailing rate of (1/20 for sales upto Rs, 50,000 per month and at the rate of (1/2) at the sale over and above Rs,50,000 per month.
2. The respondents Nos,1 and 2 filed a separate reply in which preliminary objections were raised. It was alleged that the petitioners being salesmen drawing salary in four figures were not workmen according to I.R.O., 1969 and West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 so the petition was not maintainable; that no right of the applicant guaranteed under any law, settlement or award had been infringed; that the application was time- barred as the settlement, dated 31-1-1981 was implemented immediately after its signing; that the respondents Nos, 1, 2, 5 and 6 were officers of the management and could not be made parties to the case in their individual capacity; that the application without verification was not maintainable.
3. On merits, it has been alleged that the company had its head office at Karachi with 20 branches all over Pakistan; the unions of the workers were functioning since long and various settlements had been reached by the order of the in 1978 the Rawalpindi Union was declared as C.B.U. For Punjab and N.-W.F.P. And Karachi Union as C.B.U. For Sind and Baluchistan; there were about four hundred workers including 42 salesmen. It was alleged that settlement between the Karachi Branch Union and the management was reached on 1-2-1971 wherein the sales commission of the salesmen was revised which was applicable to Karachi Branch but it was extended to other branches as a gesture of goodwill vide letter, dated 13-2-1971; in the settlement, dated 15-11-1976 reached with the Rawalpindi Union the sales commission was not revised and the existing sales commission was continued; the said settlement expired on 30-6-1978. It was alleged that sales commission was allowed on total amount of sales made by a salesman and not on the quantity of the items sold by the salesmen; after 1972 the prices of medicines increased manyfold, which upset the Co's salary/ remuneration structure as the salesmen got more pay than even Branch Managers and malpractices also were started by showing the directives as sales through salesmen; to avoid the above-mentioned short- {{BLUR PAGE}} ' July, 1980 when settlement was to be reached the company tsa and notice on 8-7-1980 to revise the sales commission; o f CD e held and that matter was kept pending to a wait for 1-n be reached with Karachi Union a settlement was reached ate, r Union on 24-1-1981 in which, sales commission was ity.0 supplementary settlement was arrived at on 31-1-1981 nmission was fixed at par with the settlement between {{BLUR PAGE}} ' the Karachi Union and the Management vide settlement, dated 24-1-1981. It was alleged that besides the supplementary settlement other benefits of upgrading of the salesmen and Tea Allowance were also agreed upon and has been implemented and that settlements, dated 31-1- 1981 and 13-7-1980 were to be read together. It was asserted that those settlements were valid and unchallengable by any union in any Court or forum. It was alleged that Aal-e-Ahmad was transferred to Karachi at his own request. The allegations of the petitioner that the signatories of the impugned settlement were promoted to favour them for signing the settlement were denied. It was asserted that promotions were given on the basis of seniority-cum-fitness. It was alleged that the petitioners had not given their present salary deliberately and have given the starting salary; it was denied that the petitioners did any manual or clerical work. It was alleged that the petitioners got the benefits of the settlements, dated 31-1-1981 and 13-7-1980 as they were blowing hot and cold in the same breath. It was asserted that both the settlements were validly reached at and were valid settlements. It was asserted that supplementary settlement, dated 31-1-1981 did not require any separate demand notice of conciliations etc. It was asserted that Aal-e-Ahmad was holding the office of the union as President when settlement, dated 31-1-1981 was signed and that he was transferred after he had signed the settlement, dated 31-1-1981. It was denied that the settlement was procured by practising any fraud or by offering any inducement. The facts of service of grievance notice and its reply were admitted but it was alleged that the applications were time-barred. It was prayed that the petitions be dismissed.
4. The respondent No, 3 filed a separate written reply and admitted the claim of the petitioners.
5. Respondents Nos,4 to 6 filed written reply and adopted the written statement of respondents Nos,1 and 2.
6. The petitioners produced Muhammad Ijaz, Joint Secretary of the respondent-Union (respondent No,3) besides Muhammad Mushtaq Bhutta, petitioner. The witnesses have stated the same facts as given in the petition and reproduced in para. No,l. They produced documents Exh. P.1 to Exh. P.18 and also admitted the documents of the respondents Exh. R.1 to Exh. R.9.
7. Respondent No, 3 did not lead any evidence. Only its General Secretary appeared as P.W.1.
Respondents Nos,1, 2, 4 and 6 did not produce any oral evidence and produced documents Exh. R.9 to Exh. R.12.
8. I give the list of the documents produced by the parties for convenience according to their serial numbers.
' Documents of the petitioners-- ' Exh. P.1 is the supplementary agreement, dated 31-1-1981 which, is the impugned settlement.
' Exh. P.2 is the settlement between the parties, dated 13th June 1980.
' Exh. P.3 is the letter, dated 6th July, 1980 for negotiation be held on 12th July, 1980.
' Exh. P.4 is the letter, dated 8th July, 1980 by this Director in continuation of letter, dated 6th July, 1980 Exh. P .3 .
' Exh. P.5 is the agenda of the meeting of 9-9-1980.
' Exh. P.6 contains the proceedings of the meeting, dated 26-9-1980.
' Exh. P.7 is the Constitution of the Union.
' Exh. P.8 contains the proceedings of the meeting.
' Exh. P.9 is the resolution of the Union to condemn the office-bearers.
' Exh. P.10 is the copy of the letter written to Chairman N.I.R.C.
' Exh. P.11 is the settlement, dated 15-10-1976.
' Exh. P.12 is the letter, dated 16-3-1981 showing the rate of commission.
' Exh. P.13 to Exh. P.15 are the grievance notices issued by the petitioners.
' Exh. P.16 to Exh. P.18 are the replies of the grievance notices.
' Documents of the respondents-- ' Exh. R.1 is the agenda of the meeting to be held on 20thFebruary, 1981.
' Exh. R.2 is the letter, dated 13th February, 1981 regarding the commission of the salesmen.
' Exh. R.3 is the settlement, dated 15-11-1976.
' Exh. R.4 is the settlement, dated 1-8-1978.
' Exh. R.5 is the letter of the management to the Union before entering into impugned agreement Exh. P.1.
' Exh. R.6 is the reply of the letter Exh. R.5.
' Exh. R.7 is the copy of the proceedings of the meeting held on 6-5-1980.
' Exh. R.8 is the list of the office-bearers promoted to the officers grade.
' Exh. R.9 is the agreement between the parties in 1982.
' Exh. R.10 is the memo. Of settlement, dated 1-2-1971.
' Exh. R.11 is the settlement, dated 24-1-1981.
' Exh. R.12 is the letter showing the reduced rate of commission.
9. No oral evidence was led by the respondents. It may be pointed the matter involved in all the cases was the same so the statements that consolidated proceedings be held.
2 {{BLUR PAGE}} 'solidated proceedings in all the three petitions were c 0 in file No, 147/1981 vide order, dated 22-5-1982.
0 co rd the parties and have considered the matter in co 1,take the legal objections. The first objection is that e salesmen drawing pay in four figures so they being not move the Court under the Industrial Relations {{BLUR PAGE}} ' Ordinance and West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968. This objection has been taken by the respondents Nos,1 and 2. Muhammad Mushtaq Bhutta, one of the petitioners appeared and stated that he was a workman and not a supervisor and that his basic pay was Rs,690. The respondents who raised the objection did not lead any evidence on this point. The petitioners have approached this Court alleging themselves to be workmen and apparently there is no evidence to show that they are not workmen. The petitioner Mohammad Mushtaq Bhutta claims himself to be a workmen. His case is at par with the two other petitioners so it can be said that they are also workman. The respondents had all the documents to prove that the petitioners were not workmen but they have not led any evidence so the objection of the respondents does not stand proved.
11. The other objection is that the petitions are time-barred because the settlement dated 31-1-1981 was implemented. It is not understandable as to what is the basis of this objection. The grievance notices were issued on 2-4-1981 i,e,, within three months from the date of the impugned order. They were replied on 13-4-1981 and the petitions were filed on 16-5-1981 within two months from the receipt of the replies of the grievance notices. The petitions are within time and the objection in this regard has no basis.
12. It has been asserted that the respondents Nos,1, 2, 5 and 6 were officers of the management and could not be impleaded. Respondent No,1 is the Company. It has been impleaded through its Manager. Respondent No,2 is the Managing Director and respondents Nos,5 and 6 are its Sales Officers. They are all employers and have been correctly sued.. No law has been shown that they could not be sued.
13. It was asserted that the applications were not verified so they were not maintainable. There is no provision of law making it incumbent that the grievance petition should be verified.
14. It was also asserted in para. No,14 that declaratory suits could not be entertained by the Labour Court. This objection has also no basis. No declaratory suit has been entertained rather these are the grievance petitions filed under section 25-A of the Industrial Relations Ordinance, 1969 and the Labour Court is the competent Court to entertain such grievance petitions.
15. Now, we have to see if the impugned agreement Exh.P-1 is a valid document or not. Earlier agreement was arrived at between the parties on 18th July, 1980 and decision regarding sales commission was kept pending. Then vide Exh.P-1 sales commission was fixed at the rate of per cent. The salesmen who had put ten years service were agreed to be upgraded as Grade-A and the salesmen of more than five years service were upgraded as Grade-B and it was also agreed that sales officers would be selected from the salesmen. Settlement regarding Tea Allowance was also made. Apparently, there is nothing wrong with this settlement. This settlement is a part of the earlier settlement Exh.P-2 which was arrived at after the demand notice and after observing all the formalities necessary under the law. So, this settlement is in order. The whole of the agreement consisting of Exh.P-2 and Exh.P-1 has granted many facilities to the petitioners and only one point is against the salesmen that commission allowed over sales of Rs,50,000 has been reduced from half per cent to per cent. It is to be shown by the petitioners as to which law has' been offended by this reduction.
It is an agreement , between the two parties and after negotiations it has been reached at. The mere fact that earlier commission was more does not mean that it can never be reduced even with the consent of the parties. At the most, the petitioners enjoyed this facility under D different agreements from time to time and a total period comes to be ten years. Ten years are not sufficient to make this facility a custom or usage and it cannot be pressed as a custom, usage or a long standing practice.
16. It was also objected that the reservation clause for appointing' any other member of the staff or outsider as salesmen and the right of the management to exclude any category of customer in a sales area for the purpose of soliciting business and right to change the rate of commission have also affected the right of the petitioners adversely so the agreement Exh. P-1 is illegal.
17. This contention is not sound. These terms have been agreed bilaterally and are not offending any provision of law and as such the impugned agreement is a valid document. No law has been shown that the Exh.P-1 could not be entered into through a collective agreement.
18. It was asserted that Mr.Aal-e-Ahmad had been transferred from Rawalpindi to Karachi and had ceased to be the President because of that transfer so he could not sign the agreement. It has not been , proved from the record that the respondent (Aal-e-Ahmad) was transferred before signing the Exh.P-1 to Karachi. The respondents have clearly asserted that he was transferred in February, 1981 while the agreement Exh.P-1 was signed on 31-1-1981. The petitioners have not produced the order of transfer of Aal-e-Ahmad. They have not summoned the relevant record to be produced in Court. Only verbal statement has been made by Muhammad Ijaz that at the time of signing Exh.P-1 Aal-e-Ahmad was posted at Karachi. Verbal statement has no value when it could be proved by producing the transfer order. That transfer order has not been produced, so the agreement has not been found to be defective for the above-mentioned reason.
18-A. It was asserted that the agreement dated 31-1-1981 was beyond the scope of the authority vested in the C.B.A. Under the law as well its own constitution. No provision of law has been shown to which this agreement offends.
19. It was asserted that the agreement was prepared by practicing the fraud on the workers and by giving benefits to the office-holders. I have considered this contention. No evidence of fraud has been produced. So far as promotions are concerned, they have been granted to many officials including the petitioners. Mohammad Mushtaq Bhutta has admitted in his statement that he had been granted Grade-A as a salesman. Grade-A salesmen were agreed to be appointed in terms of Exh. P-1 and salesmen of over ten year's service were given Grade-A. Similarly, the office-bearers who were due were granted promotions. No material has been brought on record that they were granted promotions out of order. There is also no evidence to show that any official raised any objection in any Court regarding those promotions that they were out of order. So, it cannot be said that these promotions were granted without entitlement of the office-bearers of the Rawalpindi Union. Those promotions were granted in routine and petitioner Mohammad Mushtaq Bhutta was also granted promotion.
20. It is to be noted that the agreement Exh.P-1 was entered into between the C.B.A. Union 'through its office-holders and the management. This agreement has not been assailed by the Union. Only these three petitioners have asssa iled it. They are salesman while this agreement is regarding all types of workers of the company. The petitioners have also got benefits under the settlement, so in my view, they have no cause of action in their favour to assail the agreement.
21. The result of the above discussion is that the petitioners have failed to make out their case and the petitions are rejected.
Petitions rejected.