1. ' HAIDER ALI PIRZADA, J.--This petition under Article 199 of the Constitution of 'the Islamic Republic of Pakistan calls in question the orders of respondents Nos.2 and 3, dated 28-1-1980 and 21-6-1980 by which the industrial dispute raised by the respondent No.1 was referred by the Federal Government for adjudication in exercise of the powers conferred under section 33(1) of the I.R.O., 1969. The respondents Nos. 2 and 3 adjudicated the reference and it was held that the respondent No.1 are entitled to production bonus equal to 56 days basic wages for the years 1977-78 and 1978-79.
2. ' The facts which give rise to this petition are that the respondent No.1 is a registered trade Union and collective bargaining agent of the workers employed in the establishment of the petitioner. For the years 1972-73, 1973-74, 1974-75, 1975-76 and 1976-77 the respondent No.1 submitted each year a charter of demands claiming, amongst others, benefits bonus for the workers employed under the petitioner. Each year a settlement/agreement was reached between the parties on the charter of demands under the I.R.C., 1969, in terms of which bonus was paid by the petitioner to the workers employed under it. It is the case of the petitioner, that in none of the charters of demands for the said years 'Production Bonus' was claimed and the demand in each year was simply for bonus which means and was understood and dealt with as 'Profit Bonus'. Copies of the extracts from the charter of demands are annexed to the petition as Annexures "A-1 to A-3". Copies of the relevant settlement/agreement relating to each charter of demands are annexed to petition as Annexures "B-1 to B-5". On or about 1-7-1978, respondent No.1 submitted a charter of demands raising amongst others, two demands for Bonus as per item 1 and 4(g) of the charter of demands as per Annexure "C" to the petition.
3. ' It is advantageous to reproduce the relevant items which read as under: "(a) Item-1.-- All workers of P.V.C.Ltd. Be paid bonus equal to 6 months basic salary.
(b) Item 4(g). Production Bonus.--The Management should pay to the workers every year production bonus in addition to annual bonus.'
4. ' On the said charter of demands a settlement/agreement was reached on 23-10-1978 and in regard to the said demand for bonus the settlement was as under: "4 (9) Production Bonus: ' It is mutually agreed that production bonus will be given according to the rules of the Government as and when notified."
5. ' The aforesaid settlement under which no bonus was payable to the workers was to remain in force and binding on the parties for a period of two years commencing from 1-7-1978 and thereafter until such time it is terminated by a notice of two months as provided under section 40 of the I.R.O. , 1969. The settlement was still in force and binding on the parties, the respondent No.1 by a notice of demand dated 1-7-1979 raised demands for payment of bonus to workers equal to 120 days salary for the years 1977-78 and 1978-79. This notice of demand was followed by a notice of strike under section 26(3) read with section 28 of the I.R.O., 1969. Copy of demand dated 1-7-1979 is annexed to the petition and Annexure 'E' to the petition. The Government of Pakistan intervened in the matter and by its order dated 9-9-1979 made under section 33(1) of I.R.O., 1969 prohibited the strike and referred the dispute to the National Industrial Relations Commission for adjudication.
6. ' The respondent No.2 entered upon the reference and issued notices to the parties when the respondent No.1 filed a statement of claim before the respondent No.2 and the petitioner filed reply.
7. ' The General Secretary of the respondent filed his affidavit and Iftikhar Lari, Manager administration of the petitioner filed his affidavit. The respondent No.2 after recording evidence of the parties and after hearing the arguments of the learned counsel for the parties accepted the claim of the respondent No.1 and awarded 'Production Bonus' to the workers equal to 56 days basic wages for the year 1977-78 and 1978-79.
8. ' The petitioner being aggrieved preferred an appeal before the respondent No.3 who dismissed the same by order dated 21-6-1980 hence this petition.
9. ' Mr. Sayed A. Shaikh, the learned counsel for the petitioner has assailed the impugned orders of the respondents 2 and 3 on the following grounds:- "(1) That the reference by the Federal Government was incompetent and, therefore, the respondents 2 and 3 have no jurisdiction.
(2) The respondents 2 and 3 were wrong to hold that the petitioner was liable to pay 'Production Bonus' to workers not realizing that in the first place, the respondent No.1 could not have legally repudiated the settlement dated 23-1-1978 second place, the bonus already paid. To the workers and thirdly place the Union was estopped to claim bonus in view of the fact that it was bound by the settlement agreement of 23-10-1978.
(3) That in any event it was mutually agreed that production bonus will be given according to the rules of the Government as when notified."
10. ' With regard to first contention, the learned counsel for the petitioners had contended that the Commission had no jurisdiction to entertain or adjudicate upon the reference as the same did not lie before it. Reliance was placed on section 22-A (8) (c) wherein it is laid down that the Commission shall be entitled to adjudicate upon a reference made to it by the Federal Government if the dispute, in the opinion of the Federal Government was of national importance.
11. Section 22-A (8) (c) and section 32 read as under:- "22-A . National Industrial Relations Commission.-- (1) The (Federal Government) shall constitute a National Industrial Relations Commission.
8. The following shall be the function of the Commission namely:
(c) to adjudicate and determine an industrial dispute to which an industry-wise trade Union or a federation of (such) trade the opinion of the Federal Government of national importance and is referred to it by that Government; "Section 32(1). If no settlement is arrived at during the course of conciliation proceedings and the parties to the dispute do not agree to refer it to an arbitrator under section 31 the workmen may go on strike or as the case may be, the employer may declare a lock-out (on the expiry of the period of notice under section 28 or upon a declaration by the Conciliator that conciliation proceedings have failed, whichever is the latter."
12. (1-A) The party raising a dispute may at any time, either before or after the commencement of a strike or lock-out make an application to the Labour Court for adjudication of the dispute.
(2) Where a strike or lock-out lasts for more than thirty days the Federal Government, if it relates to a dispute which the Commission is competent to adjudicate and determine, and the Provincial Government, if it relates to any other dispute, may, by order in writing, prohibit the strike or lock-out: ' Provided that the Federal Government may, with respect to a strike or lock-out relating to a dispute which the Commission is competent to adjudicate and determine and the Provincial Government with the previous approval of the Federal Government, may, with respect to any other strike or lock-out, by order in writing, prohibit a strike or lock-out at any time before the expiry of thirty days, if it is satisfied that the continuance of such a strike or lock-out is causing serious hardship to the community or is prejudicial to the national interest."
13. ' Section 32 (1) provides that the Federal Government may, with respect to a strike or lock-out relating to dispute, which the Commission is competent to adjudicate and determine, prohibit a strike if it lasts for more than thirty days. Under proviso to this section the Federal Government may prohibit a strtike or lock-out at any time before the expiry of thirty days if it is satisfied that the continuance of such a strike or lock-out is causing serious hardship to the community or is prejudicial to the national interest. Under section 32(3) the Federal Government is obliged to refer the matter to the commission where it prohibited a strike or a lock-out. Under section 32 (4) the Commission has to decide the dispute within thirty days after giving both the parties an opportunity of being heard.
14. ' The provisions referred to above provide that the Federal Government is empowered to refer a case to the Commission only if :- "(a) it considers it to be either causing serious hardship to the community or is prejudicial to their national interest
(b) in such a case, before doing so, it has to first prohibit the lock-out or the strike and then immediately refer the matter."
15. ' It is the gravity of the situation and the necessity of the application of temporary corrective measures that oblige the Federal Government to act. Admittedly in the present case, the respondent No.1 by a notice of demand, dated 1-7-1979 raised demands for payment of bonus to workers equal to 120 days salary for the years 1977-78 and 1978-79. This notice of demand was followed by a notice of strike under section 26(3) read with section 28 of the I.R.O., 1969. The Federal Government intervened in the matter and by its order dated 9-9-1979 made under section 33(1) of I.R.O., 1969, prohibited strike and referred the dispute based on the demands contained in the strike notice to the National Industrial Relations Commission for adjudication. This means that the Federal Government thought that there was situation wherein it should intervene. In the circumstances, it cannot be argued that intervention by the Federal Government in a situation, which did call for an immediate action of stopping the strike serious hardship to the community or prejudice to the national interest, by way of referring the dispute to the commission, was ultra vires of its powers. Reference may be made to the case of Birendra Mohan Das v. Aminuddin Malik 1970 S C M R 304 where it was held that in order to attract validity an action must fulfil conditions of the statute.
16. ' Mr. Ali Amjad the learned counsel for the respondent No.1 has submitted that the petitioner did not raise the objection before the respondent No.2 and the petitioners themselves preferred appeal before the Full Bench of the Commission on merits but did not raise any objection regarding validity of the reference.
17. ' The award shows that the attention of the respondent No.2 was not specifically drawn to the objection that the reference was illegal. The order of the respondent No.3 also shows that no such plea was raised before it by the petitioners.
18. The scheme of the Ordinance as referred to above, therefore, has a very elaborate built in mechanism to settle the dispute without causing any dislocation in the industry. A strike can thus be valid and lawful only if it has come about in accordance with and in the situation as envisaged by law. No party can, therefore, lawfully resort to a particular provision of law without seeking recourse to other provisions which precede it. Admittedly in the case the procedure leading to strike notice as laid down in section 26 was followed. Notice of strike was given. We therefore, hold that as there was valid dispute existing at the relevant time the very reference by the Federal Government and the award thereon are lawful and valid.
19. ' Let us examine the second and third contention of the learned counsel for the petitioner that the settlement dated 23-10-1978 was still valid and that the payment to the workers of bonus agreed thereunder would disentitle them again to claim the 'Production Bonus'. We find no force in this contention. A look to the relevant provisions of the agreement would show that it is mutually agreed that production bonus would be given according to the rules of the Government as and when notified. Mr. Ali Amjad the learned counsel for the respondent Union put a different interpretation to clause 4(g) of the said settlement and submitted that the petitioner in the said clause 4(g) has virtually agreed in principle to the claim of the respondent Union for the production bonus. He also submitted that the petitioner had also agreed to pay bonus under clause (1) of the settlement as it is agreed in this clause that they prepared to pay the bonus provided it is sanctioned by a higher authority. The respondent No.2 awarded production bonus to the respondent No.1 firstly on the grounds that production bonus has been regularly paid to the respondent No.1 since 1973 and it has become a usage and practice to pay the bonus even though the petitioner-Company is running into loss. He further held that this practice was uniform for the past five years right from 1973 to 1977 and even in 1978 settlement the petitioner-Company had admitted the claim of the workers to receive production bonus.
20. ' Secondly the Manager Administration Mr. Iftikhar Lari stated in his deposition.
21. "I may add that suppose the workers demand certain increases in wages and also bonus. The Management was willing to increase the wages but did not want to pay bonus. In order to reach the compromise the union agreed to drop the demand of increase in wages but insisted to receive bonus. The Management also agreed to the proposal of the Union to negotiate a settlement. In this way, the payment of bonus has become a part of terms and conditions of service."
22. ' It is submitted by him that the workers in order to receive the bonus had agreed to reduce the demands in the increase of wages and other benefits and allowances. It is agreed by the petitioner that they were prepared to pay bonus if sanctioned by any higher authority vide clause (1) of the current settlement and also to pay 'Production Bonus' if the Government frames rule to this effect vide clause 4(g) of the settlement. Mr. Ali Amjad the learned counsel for the respondent No.1 has argued that the payment of the bonus by the company had nothing to do with the 'Production Bonus'. He pointed out that the obligation to pay 'Production Bonus' had become part of the wages of workers and, therefore, the petitioner-Company was bound to pay them 'Production Bonus'. In support of his contention the learned counsel referred to the following dictum from a judgment of Calcutta High Court in the case of Messrs M. Tilate Co. v. Third Industrial Tribunal and the AIR 1959 Cal.
23. 797.
24. "Bonus is a concept of many connotations may be a term of the contract of employment in which event the question if such bonus is payable out of profit only or only when the wages fall below living standards will depend on the terms of such contract of employment it is stipulated range of economic and legal possibility that in a particular contract of employment it is stipulated that bonus will be paid irrespective of profits or living standards. It may be a cash incentive to a greater efficiency and production even when there is no question of absence of living wage. Akin to this conception of bonus is the case of a bonus annexed to the employment by custom or social practices such as Customary bonus and Puja or Festivity bonus. In case of such customary and traditional bonus, the question of profit may or may not arise at all and such customary and traditional bonus will depend on the content and terms of that custom or the tradition on which the claim for bonus is made. Each claim for bonus must depend on the facts of such claim. No doctrinaire view about bonus is possible or desirable. This much, however, is judicially settled that bonus is not deferred wages. It is a narrow and static view that considers bonus as always ex gratia payment of a glorified tip or Bakhshish or a mere cash patronage payable at the pleasure of the employer. In the industrial jurispurdende of modern economic society, it is a legal claim and a legal category whose potentialities are not as yet fully conceived but whose types and boundaries the Courts in India are struggling to formulate. It is a vital instrument of industrial peace and progress, dynamic in its implication and operation."
25. ' Notice may also be taken of a judgment from Lahore High Court in the case of Messrs Attock Oil Co. Ltd. v. The Supreme Body of Oil Feed League and Referring Union, Rawalpindi PLD 1970 Lah. 122- -the following doctrine:- "Taking into consideration the various decisions and the changed conditions of our society in which the rapid industrialization is taking place in the country bonus is to be regarded as deferred wages payable to employees which may be claimed by them as of right and it should be recognized as one of their rights which they can claim from their employers under certain circumstances"
26. ' Mr.Ali Amjad has also relied upon the cases of Dakigratle Labour Union v. Pak. Tobacco Co. Ltd. PLD 1981 SC 495 at 504: "According to the dictionaries and to the judgment, 'bonus' is a remuneration given to labour which is different from and in addition to wages, and the difference, in the words of Lord Birkenhead, is that it is a payment "which the parties contemplate will not continue indefinitely". Secondly the word has been used in our jurisprudence much more frequently in order to indicate labour's share of the employer's profits, and as submitted by Mr.Irshad Hasan, the judgments of this Court in Zeal Pak Cement Factory Ltd. v. The Cement Labour Association and in Saifee Development Corporation Limited's case, are based on this view. I cannot, therefore, agree with the conclusion of the learned Judges of the Peshawar High Court that if a workman makes his employer agree to pay him bonus, it would be deemed to have become a part of his wages."
27. With respect, we wholly agree with this exposition. We agree with the learned counsel for the petitioner that the respondent No.1 was not entitled to raise any financial demands, but maintain that the demand for bonus was not covered by this commitment. We are of the view that clauses
(1) and 4(g) of the settlement, dated 23-10-78 do not place a bar against any demand for bonus especially the 'production bonus'. Clause 4(g) of the settlement clearly said that the production bonus should be paid in accordance with the rules framed by this Government.
28. Respondents Nos. 2 and 3 have acted within their jurisdiction and therefore the impugned orders do not call for interference by this Court in exercise of writ jurisdiction even otherwise, in our view the finding of the respondents Nos.2 and 3 that the workers of the petitioners are entitled to production bonus equal to 56 days basic wages for the years 1977-78 and 1978-79 are not in conflict with the past practice. The petitioner has not denied that in the year 1978 high production has been recorded. An amount equal to 56 days basic wages. Was paid to the workers as bonus for the year 1976-77. In these circumstances, the respondents Nos. 2 and 3 seem to have rightly awarded to workers 'production bonus' for the years 1977-78 and 1978-79. In view of the above finding that the award and order of the respondents are not in conflict with the settlement, the company would be disentitled to any relief in these proceedings which cannot be invoked in aid of injustice. Assuming for a moment that the impugned award and the order of the respondents Nos.
29. 2 and 3 are, for the reasons advanced by the learned counsel for the petitioner, without jurisdiction, nevertheless it has done complete justice between the parties and to set aside in these proceedings now would tantamount to perpetuate against the workers a state of injustice. In this respect, we would like to quote from the well-known judgment of the Supreme Court of Pakistan in the case of Nawab Syed Raunaq Ali. v. Chief Settlement Commissioner and others PLD 1973 SC 236 the following dictum with advantage:- "An order in the nature of a writ of certiorari or mandamus is discretionary order. Its object is to foster injustice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the orders sought to be set aside had occasioned some injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked."
30. Mr. Sayeed A. Shaikh the learned counsel for the petitioner has contended that in the absence of any agreement or a statutory provision the award of 'production bonus' is wholly without jurisdiction. The contention is devoid of force. We are of the view that the respondents Nos. 2 and 3 have jurisdiction to award production bonus to the workers of the petitioners. Reference may be made to the judgment of the Supreme Court in Pak. Tobacco Co. Ltd. v. Employees Union PLD 1961 SC 403 at 419: " It will be proper to state here the difference between an ordinary arbitration and a proceeding before an Industrial Tribunal. The arbitrator like a Court simply determines what the rights of the parties are. He neither purports to grant nor can he grant to a party any right which it does not possess, if an arbitrator were, for instance, to find in a case of inheritance that one of the heirs is entitled under the relevant law to one-third shares of the estate of the deceased he could not on equitable grounds convert that one-third to one-half. The scope of the jurisdiction of the Industrial Tribunal is however entirely different. The Tribunal does not discover what the rights of the parties are. If he were simply to do that he would never be able to help the workmen because the rights of the workmen are based on contract and cannot go beyond the terms of the contract. The Tribunal possesses a jurisdiction by which it alters the terms of the contract and grants to parties rights which they do not possess under the law on what it considers to be just and equitable grounds.
31. Truly speaking, there are no fetters at all on the discretion of the Tribunal to vary the conditions of service. Some general principles on which the Tribunals should act are found in decided cases but they have no binding force as precedent and the jurisdiction of the Tribunal, subject of course to the jurisdiction of any appellate Authority remains supreme."
32. The award of the respondent No.2 and the order of the respondent G No.3 are in consonance with law and need no interference by us.
33. ' This petition, therefore, fails and is dismissed. But in view of the rather difficult questions of law involved in it, we would leave the parties to bear their own costs.