DECISION This is an appeal against an award of the learned Chairman of the First Sind Labour Court, Karachi, dated 21st November 1970. The facts briefly put giving rise to the appeal are these.
2. The Jaleel Brothers Employees' Union (hereinafter called the Union) made an application under section .34 of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance), on 9th June 1970. The allegations in the application related to the termination of services of 12 workers by Messrs Jaleel Brothers Limited (hereinafter called the Management), non--payment of certain dues, namely, (1) Earned Wages, (2) Notice Pay (3) Payment in lieu of unavailed leave, (4) Double Provident Fund Contribution as per award of the Arbitrator, and (5) Gratuity in accordance with the Standing Orders. It was further alleged that one Ghulam Sarwar, a worker, had not been paid his Earned Wages for the period from 10th February 1970, to date and that -he had also not been paid his bonus. The Union claimed that the dispute related to the rights guaranteed to the workmen under the law and the award for the the being in force. The reference to the award is one given by the Arbitrator and published in the Extraordinary Gazette on 15th June 1970.
3. In reply, the Management stated that it was not correct that the Management was not prepared to pay the legal dues to the workers and that the matter relating to Ghulam Sarwar did not fall within the scope of section 34 of the Ordinance.
4. The learned Chairman of the Labour Court came to the conclusion, on the evidence of the Union, that 5 of the dismissed workmen having received their dues from the Management were not entitled to any relief. It is noteworthy that of the rest of the 7 workmen, only 3 appeared in Court, namely, Hasan Din, Amin--uddin and Muhammad Ismail. Muhammad Ismail, however, had deposed in general terms about the rest of the four workmen that they had also demanded their dues from the Management, but the same were riot paid by it. He stated as under: "Our dues consist of Earned Wages, Notice Pay, Un-availed Leave payment, Provident Fund and previous gratuity. When my services were terminated one month's Earned Leave was due to my credit."
5. The learned Court granted wages for 21 days Earned Leave per year of service for the number of years due to each workman. He also granted wages for notice period and also the wages due, but unpaid to the workers. The Court granted Provident Fund in accordance with the decision of the Arbitrator, published in the Extraordinary Gazette of 15-6-1970. Those of the workers, who were not contributing to the Provident Fund, they were granted gratuity in accordance with the terms of Clause (5) of Standing Order 12 or the Standing Orders Ordinance.
6. In respect of Ghulam Sarwar, the Court gave a declare--tion that lie should be treated as still in the employment of the Company. Ghulam Sarwar was also allowed pay at the rate of Rs. 303 for four months, namely, from January to April 1970.
7. I propose to dispose of each of the contentions raised by the appellant in (lie Memo. Of appeal. In order to appreciate the contentions of the learned representative for the appellant, it would be useful to reproduce section 34 of the Ordinance, as it stood at the the when the application under section 34 of the Ordinance was made. It reads as under: "Any party to an industrial dispute relating to a matter arising out of any right guaranteed or secured to an employer or workman by or under any law for the the being in force or an award or settlement may apply to the Labour Court for adjudication of the dispute."
8. It was contended in the first place, relying on section 34 of toe Ordinance, that at the the when the application was presented to the Court, no industrial dispute was pending. On the face of it, this contention is not tenable. Section 34 of the Ordinance does not requite that an industrial dispute should be Pending in Court a. The the when an application under section 34 of the Ordinance is made. All that section 34 of the Ordinance contemplates is the existence of an industrials dispute.
Industrial dispute means "any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen which is connected with the employment or non-employment or the terms of employment or the conditions of work of any person. The definition of industrial dispute is wide enough to include the non--payment of the various dues by the Management to give rise to an industrial dispute.
9. In the second place it was contended that the, Union had not quoted the law under which the Union had a right to claim the various dues mentioned by it. Section 34 of the Ordinance does not lay down any obligation on the Union to name the law under which the various dues could be claimed. It would be a sufficient compliance of the law if the Union is able ultimately to disclose to the Court the law under which it claims the various dues.
10. In the third place, it was contended that the appellant was not given an opportunity to lead evidence and, therefore, the award should be set aside. There is no force in this contention. A perusal of the Order Sheet would disclose that the appellant did not appear on the date fixed for production of its evidence. The Court, in the absence of the appellant, could have heard the Union and passed the order. On the other hand, the Court postponed the matter for another date to hear the argu--ments of both the parties. I cannot hold that the Court, in the circumstances of the present case, had acted wrongly in disallowing the appellant to produce evidence. Moreover, the appellant having admitted that it was willing to pay the legal dues of the workers of the Union, no useful purpose could have beer: served $o allow the appellant to lead evidence. The appellant did not challenge in cross-examination, the statement of Aminuddin, Hasan Din, and Muhammad Ismail, as to the Earned Leave admissible to them, the wages due to them arid the Provident Fund or Gratuity permissible to them. In these circumstances, it would have, been waste of tune to permit the appellant to produce any evidence.
11. In the fourth place it as submitted in the Memo. Of appeal that the clam of the respondents witnesses, in the absence of any documentary evidence in proof of custom or usage, should riot have been accepted. There is no force hi this contention. It appears from the cress-examination of the learned representa--the for the appellant that the Management did not challenge the usage that the workmen used to get 21 days Earned Leave every year.
12. In the fifth place it was contended that a presumption 2.hou13 be raised under section 141-G of the Evidence Act against the respondent for their failure to summon the record from the Management, in respect of Earned Leave Wages, Notice Pay and Gratuity, that had they summoned the record, it would have gone against them. There is no force in this contention. The record was in the possession of the Management. If they wanted to rebut the evidence of the Union, they could have always produced the same. There was nothing to stop the appellant to file the record concerning anyone of the workmen, who appeared before the Court along with the Memo. Of appeal. No reference was made to any of the record, in the Memo. Of Appeal which may have helped the appellant.
13. Lastly, it was contended that the declaration in respect of Ghulam Sarwar that he be treated in the employment of the appellant is illegal. This contention must prevail. Admittedly, there is no prayer in the application under section 34 of the Ordinance for a declaration that Ghulam Sarwar be treated to be in the employment of the Company, Ghulam Sarwar, who appeared before the Court, has also not made any such prayer. The declaration about Ghulam Sarwar that he should be treated to be in the employment of the Company is set aside.
14. I have gone through the record of the case and have come to the conclusion that slime of the reliefs granted by the learned Court need modification.
15. The reliefs granted to Aminuddin by the learned Court cannot be modified. So far as Hasan Din is concerned, the relief, which has been granted by the Court and needs considera--tion is in respect of Gratuity. The learned Court in respect of Hasan Din observed sunder: - "That leaves only Hasan Din's claim regarding the amount he would be entitled to receive as gratuity because he was not contributing to the provident fund in his concern."
16. Hasan Din, however, stated as under in his cross-examination: - "I had started subscribing with the provident fund in April 1969, . . . . . . . . . . From 1967 onwards it was introduced also for the workers."
17. In these circumstances, the relief granted by the Court to Hasan Din in respect of Gratuity is set aside. Hasan Din, however, would be entitled to Provident Fund, to be computed in accordance with the award given by the Arbitrator, Mr. Muhammad Anwar, and published in the Extraordinary Gazette on 15th June 1970.
18. So far as Muhammad Ismail is concerned, the relief as to Earned Leave requires consideration.
The Court passed the following order: - " ---.. One month's pay by way of earned leave per year as claimed by him . . . . . ."
19. Muhammad Ismail claimed in his statement before the Court only one month's Earned Leave. He would, therefore, be entitled to only one month's Earned Leave Wages and no more. The words "per year" in the relief granted gives one the Impression that Muhammad Ismail is entitled to more earned leave than one month.
20. It is noteworthy that Muhammad Ismail did not specify the number of days for which he was entitled for his wages and which were not paid by the management. Muhammad Ismail stated as under: - "We all had demanded our dues from the factory Manage--ment after termination of services but we were not paid the dues. Through the Labour Directorate we also demanded the same dues but still they were not paid.
Our dues consist of Earned Wages, Notice Pay, Unavailed Leave payment, Provident Fund and previous Gratuity. When my services were terminated one month's Earned Leave was to my credit."
21. It is clear from his statement reproduced above, that he did not specify the amount of wages that was due to him, or the number of days for which the Management had failed to pay him his wages. On the other hand, Aminuddin and Hasan Din had clearly specified the number of days for which they were not paid wages by the Management. A relief granted by the Court has to be specific. It cannot be left to the sweet-will of the Management to determine the days fur which the wages had not been paid to a workman. The Management may very well say that only one day's wage is due to Muhammad Ismail and the other four workmen, who did not appear before the Court. Muhammad, Ismail, therefore cannot be granted any wages in the absence of any claim for specific amount or proof of the, number of days for which the wages were due to him.
22. The Court made the following observations: - "That leaves out of the 12 workmen whose services had been terminated by Exh. P-3 issued by the Management, the cases of Abdul Khaliq, Afzal Hashmi, Abdul Majeed and Ali Akbar. None of these workmen, as shown earlier, has stepped into the witness-box to give evidence as such we do not know the exact nature of their claims nor these claims are specified in specific terms from their word of mouth anywhere in the plead--ings. Nonetheless regarding these four persons P. W.
Muhammad Ismail has stated that they had also demanded their dues from the Management which consisted of earned wages, notice pay, unavailed leave payment, provident fund and previous gratuity but they were not paid anything. If that be so except their claims regarding their previous gratuity in case of a workman who has been subscribing to the provident fund all the other claims made by them as mentioned by Muhammad Ismail shall be paid to them by the Management in the respondent Concern in accordance with the decision given above regarding similar claims about other workmen."
23. All that Muhammad Ismail stated, as reproduced in para. 20 above about four workmen that they had demanded their dues from the Management. Mere statement by Muhammad Ismail that the four workmen demanded their dues would not be sufficient to prove that any amount was in fact due to the workmen. Muhammad Ismail did not state that it was within his knowledge that any amount was due to the workmen. The only thing Muhammad Ismail deposed was that the four workmen had demanded their dues, but he did not state as to what was the amount that they had demanded. It may be that the four workmen realising the weakness of their claim did not appear themselves to depose about their claim. There being no evidence that any amount was due to the four workmen, the relief granted by the Court to these four workmen is set aside.
24. So far as Ghulam Sarwar is concerned, I have already observed that the declaration that he continues to be in service of the Company, cannot be maintained as there was no prayer in the application nor in the statement of Ghulam Sarwar for such a declaration. As to the wages, the Court has granted him wages at the rate of Rs. 303.00 per month for four months from January to April 1977. Ghulam Sarwar in his examination-in---chief stated as under: - "After 13th April, I did not resume work as I was not paid."
25. Ghulam Sarwar, therefore, cannot get pay for the whole of the month for April 1970. He would be entitled to pay only up to 13th April 1970. The relief as regards pay to Ghulam Sarwar is also modified to this extent that he will be entitled to pay from January to 13th April 1970, only.
26. The award granted by the Court, with the modification that I have already mentioned, is maintained.