DECISION This is an appeal against an award dated the 23rd of December 1970, whereby the learned Chairman of the First Sind Labour Court, Karachi, granted some of the 13 demands, preferred by the Trans-oceanic Steamship Company Workers' Union (hereinafter called the Union). The facts giving rise to the appeal briefly put are these.
2. The Union served a Notice of Strike on 14th September 1967. The conciliation proceedings having failed, Failure Certificate was issued on 16th October 1967. The Union made an application under section 5(5) of the Industrial Disputes Ordinance, 1959 (hereinafter called the Ordinance of 1959), before the First West Pakistan Industrial Court for adjudication of 13 demands. The Union brought to the notice of the Court that similar demands, which were the subject-matter of Industrial Dispute No. 16/66, and which are now being raised by the Union, but were withdrawn unauthorisedly on 27th July 1967 by the General Secretary of the Union.
3. The Company raised certain preliminary objections, namely ; (1) that the demands are not appended to the Failure Certificate and, therefore, the Court cannot adjudicate upon the demands,
(2) that Demands Nos. 1, 2 and 8 to 10 were covered by the Industrial and Commercial Employment (Standing Orders) Ordinance (hereinafter called the Standing Orders Ordi--nance) and, therefore, they cannot be the subject-matter of an industrial dispute, (3) that Demand No. 13, does not constitute an industrial dispute, and (4) that the demands now raised having already been the subject-matter of Industrial Dispute No. 16/66, which were withdrawn, cannot now be again determin--ed. Mr. Fazle Khaliq, the then Chairman of the Industrial Court disposed of the last question by his order dated 22nd July 1968. He held that the order dismissing Industrial Dispute No. 16/66, did not bar the present application on to-fold grounds, namely
(1) That Mohammad Shad had no authority on 27th July 1967, to withdraw the said Industrial Dispute No. 16/66. He had been already removed from the General Secretaryship on 14th July 1967.
(2) That there was no determination of the demands and, therefore, the present application was not barred.
4. The Union had examined three witnesses, namely. (1) Mr. Ghulam Mohammad, Boiler Maker, (2)
Mr. Ghulam Ahmad, Welder, and (3) Mr. Yasin, Fitter. On behalf of the Company, Mr. R. P. Kooka, Operations Manager and Mr. Nasim Ahmad, Labour Officer, were examined. The learned Court considered the merit of the demands raised by the Union and granted some of the demands, though in a modified form, i.e. 1 to 4, 6, 11 and 12. The appeal is directed against the award given on these demands.
5. There was a cross-appeal by the Union against the award rejecting some of its demands. I dismissed the said appeal as the-barred.
6. After I had heard the learned Representatives for the parties and reserved the appeal for orders, Mr. A. H. Puri, the learned Representative for the Management, made an applica--tion for further arguments on the ground that there was no award within the meaning of section 37 of the Ordinance. In the interest of justice, I gave another opportunity to Mr. Puri, who addressed me on that point.
7. Mr. Puri contended that the award purports to have been given on 23rd December 1970, but as would appear from the copy of the award that it was typed by Mr. Shamim on 29th December 1970, at Hyderabad. The learned Representative contended that under section 37 of the Ordinance, the award has to be given in writing and delivered in open Court. It is contended that the award cannot be said to be in writing as it was not typed on 23rd December 1970. The Order Sheet of 23rd Decem- -ber 1970, of the learned Labour Court reads as under :-
8. If it was announced in open Court, it must have been dictated to the shorthand writer of the Court. Section 37 of the Ordinance does not lay down that the award should be written in long- hand, while it is being delivered in open Court. It is not the case of any of the parties that any addition or variation has been made in the award, which was pronounced in open Court on 23rd December 1970.
9. A Labour Court shall under subsection (2) of section 3E of the Ordinance, for the purposes of adjudicating and determin--ing any industrial dispute be deemed to be a civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908). Under section 99 of the Code of Civil Procedure a simple irregularity, error or defect which does not affect the merits of the case is curable under the said section. The mere fact that the order was typed on 29th December 1970, would amount as best to be, an irregularity curable under section 99 of the Code of Civil Procedure. It is not a material irregularity which affects the nature of the case or the jurisdiction of the Court. No party, in fact, has been affected by the fact that the award was not typed when it was delivered, but was typed later on. I would bold that the award is a legal one.
10. Mr. Puri contended that Demands Nos. 1, 2, 8, 9, and 10, are covered by the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Standing Orders) and, therefore, the proper remedy was to ask for redress for non-- compliance of those Standing Orders under the remedy provided under the Standing Orders and not by raising industrial disputes. He contended that wherever a specific relief has been provided under a special provision .Of law, the same must" be followed without taking recourse to general law. It is not necessary to decide this question for the purposes of this appeal. The demands referred to by the learned Representative are not specifically covered by any provision of the Standing Orders.
11. I will now proceed to dispose of the appeal on merit. Demands Nos. 1 and 2, may be taken up together. They read as under :- "(1) All Workshop and Outdoor workers shall be made permanent and on monthly payment basis.
(2) All new-comers shall become permanent on completion of three months' service automatically."
12. The learned Court on Demand No. 1 came to the conclusion that the Outdoor workers were performing permanent repair work of ships without any break and, therefore, they should be made permanent. The Labour Court adjudicates on rights and liabilities and exercises judicial power. It is true that it is not bound by the Rule of Evidence, but that does no mean that it would at on mere conjectures or its own ideas of social justice. It should at on material properly brought on record and law applicable. In this connection, reference may be made to Dalmia Cement Limited v.
Dalmia Cement Factory Workers' Union and 2 others (PLD 1959 8 C (Pak.) 153). The question of declaring workmen as permanent workmen, who are performing Outdoor work of ship repair is an important one from the point of view of Management as well as labour. The case of the Union is reproduced in para. 2, of its application. It runs as under :-- "There are approximately 100 workers in the Trams-oceanic Steamship Company Limited employed on jobs not being of temporary or casual nature, who have already completed three months' service, but have not been made permanent. Relationship between employers and employees is about 29 years long. Further details would be submitted if and when necessary. The Union, therefore, demands that all such workers should immediately be made permanent with effect from the date of their completion of three month' service and this should also be made a rule for future.
13. On behalf of the Union, as already stated, there are 3 witnesses, namely, Ghulam Mohammad, Ghulam Ahmad and Yaseen. Ghulam Mohammad alone has made a statement support--ing Demands Nos. 1 and 2. He stated as under: "I work since 11 years in the respondent-Company. I had not been made permanent so far. The remaining workers have also not been made permanent, though they have more than one year service."
14. This is all that he stated in examination-in-chief. It is noteworthy, in the first place, that Ghulam Mohammad does not state that he had been continuously working for 11 years. It may be that he has worked for 11 years but not continuously. He may have been working for 11 years, but with breaks when the ship was available for repair. In the second place, he does not give names of any of the workers who had been continuously working for more than one year or mere than 3 months. He also does not say as to how the work, which he and others were performing was of a permanent nature. The case of the Management was that they had to classes of workmen, one who work in the Workshop and the other who work on repair of ships and are called Outdoor workmen. Those who work in the Workshop are permanent, while those who work on repair of ships are temporary. As the Company does not take outside work for repair, but repairs its own ships and, therefore, sometimes there is no ship to repair. It was only in the cross-examination that Mr. Purr brought out that the "ship repair work is carried out throughout the month." The witness must have given this answer in reply to the question that repair work was not done throughout the month.
15. Ghulam Ahmad another witness does not say anything as to whether the nature of work, which Outdoor workmen were performing, was permanent one. Similarly, the third witness, Yaseen also does not say anything on this point.
16. It is difficult to hold on the solitary statement of Ghulam Mohammad, which is also vague and not specific, that the workmen, who were doing ship repair work, were permanent. On the other hand, R. B. Kooka, Operations Manager was examined on behalf of the Management. He stated that the workers engaged in ship repairs were temporary. The Manage--ment carried on repair of its own ships only and that when there was no vessel for repair temporary workers were not employed, No question in cross-examination, whatsoever, has been put to Mr. Kooka in respect of his statement that workers who were doing ship repair work were temporary. This statement goes unchallenged. In this connection, one cannot lose sight of the fact that though the workers as contended by the Union, were doing ship repair work permanently for the last about 20 years, but they did not agitate to be made permanent earlier. I would accept the statement of Mr. Kooka, which remained unchallenged and hold that the Union is not entitle to any relief in respect of Demands Nos. 1 and 2. In this connection I may observe that it would be open to the workmen to make individual applications to the Labour Court for redress of their grievances, if any.
17. Mr. A. H. Puri, the learned Representative for the Management, did not challenge the award on Demand No. 3. It is, therefore, maintained.
18. On Demand No. 4, which is for Conveyance Allowance, the learned Court granted a fixed allowance of Rs. 10 per month to every worker. Mr. Puri contested the award on this demand. Mr. Puri, in the first place, contended that similar demand for Bus Allowance was raised in 1963, but it was withdrawn by the Union. That this is so, would appear from Exh. P-B. He also relied on a Memorandum of Settlement between Karachi Port Ship Repairers, Watchmen and Tally Workers'
Union and its employers in support of his contention that no Conveyance Allowance was allowed by the employers under the said settle--ment dated 24th June 1970. Lastly, it was contented by Mr. Puri that the Karachi Shipyard and Engineering Works Limited, which is a semi-Autonomous Body, cannot be said to be comparable concern with the Appellant-Company. Moreover, the Karachi Shipyard and Engineering Works Limited manu--factures ships and does not ply ships for freight. In this connection, reliance was placed on Pakistan Petroleum Limited, Karachi v. Pakistan Petroleum Workers Federation and others (PLD 1961 (SC) 479), that the example of semi-Governmental Organization cannot be treated on the same basis as a private Company operating for profit. This demand, however, can be decided on the evidence produced by the parties. Ghulam Mohammad stated that the Company was paying 00.90 as Conveyance Allowance while they were spending Re. 1 per day as Conveyance Allowance. I have gone through the cross-examination of this witness by Mr. Puri. No question has been put to this witness challenging the amount that he spent on conveyance. On the other hand, Mr. Kooka, the Operations Manager does not say anything as regards Conveyance Allowance. The position appears to be that the workers have to spend a considerable amount on conveyance. This fact has not been challenged by the Manage--ment.
The Company, admittedly, does pay Conveyance Allowance. Which would come to about Rs. 6.00, per month to its workers who go for work to Mauripur and Port Area. There being no evidence to contradict the statement of Ghulam Mohammad that he spends Re. 1 for conveyance per day, the learned Court cannot be said to have unreasonably awarded Rs. 10 per month as Conveyance Allowance to every worker in the Company reporting for duty at the Workshop of the Appellant Company.
19. Demand No. 6, relates to bonus. Of the three witnesses on behalf of the Union only to, namely, Ghulam Mohammad and Ghulam Ahmad have deposed on the question of bonus, The evidence of Ghulam Mohammad reads as under :- "We have not been paid bonus for the year 1964-65 and 1966. In the year 1963, we were given one month's wages as bonus."
20. Ghulam Ahmad stated as under :- "The respondent gave us bonus in the year 1966-67."
21. The learned Court on this evidence ordered the Company to pay bonus to all its workers for to years, i.e. 1964 and 1965, computed at one month's salary or average wages per year. On the face of it, the evidence already reproduced on behalf of the Union was insufficient to award any bonus to the workers. It is true that as both labour and capital contribute to the earnings of the industrial concern, it ii fair that labour should derive some benefit if there is a surplus after meeting prior or necessary charges. It is impossible to draw any conclusion on the basis that an industrial concerned paid bonus in the past year that there was surplus after meeting prior charges, so as to entitle the workers to bonus. Having come to this conclusion, I requested Mr. Puri, the learned Representa--the for the Company and Mr. Kooka, an employee of the Company, to persuade the Management to pay bonus to the workers in the interest of industrial peace and smooth running of the concern. It must be said to the credit of the Management that they accepted the suggestion of the Court for better under--standing between the Management and the Union. Mr. Puri stated on 26th June 1971 as under :- "------------that the Company, as a gesture of goodwill, has agreed to give one month's wages as bonus for each of the to years to those who hive worked for one year. Those who have worked for less than one year and for more than 75 days, will also get pro rata bonus for the to years . . . . -- -
22. The award of the learned Court is modified to the extent as agreed by the Company.
23. The last contention of Mr. Puri relates to Demand No. 11. The learned Court, while dealing with this demand, observed as under :- "In this demand medical facilities are claimed but nothing has been said regarding it by any of the witnesses for the Union except that attempt is made through them to show the position of comparable concerns through their documents referred to already."
24. Demand No. 11, runs as under :- "Free medical facilities shall be provided to all workshop and outdoor workers and their families."
25. The learned Court, relying on Exh. P.C. Which relates to Karachi Shipyard and Engineering Works Limited, ordered the Company to supply free medicines to all permanent workers, whenever they fall sick and produce Medical Certificate from Registered Medical Practitioner and Cash Memo for the drugs. The learned Court by this order meant that the Company should pay the price of the medicines to the workers. There is nothing in Exh. P.C, to order the Company to pay the price of the medicines to the permanent workers. Moreover, the Karachi Shipyard and Engineering Works Limited is a semi-Government Organization and it cannot be said to be a comparable concern in respect of a private Organization. The paragraph relied upon by the learned Court, In Exh. P.C., runs as under :- "In order to provide prompt and regular medical services to the workers, one additional qualified doctor with compli--mentary staff is being appointed for the M. I. Room."
26. The above clause in Exh. P. C. Does not lead one to the relief granted by the learned Court. I have come to the conclusion that there is no evidence on behalf of the Union to make out a cafe for the grant of any medical facility.
27. The award of the learned Court stands modified, as already stated in previous paragraphs.