The General Secretary of the West Pakistan Road Transport Workers' Union, Rawalpindi (hereinafter called appellant) filed at industrial dispute against Road Transport Corporation, Lahore (hereinafter called respondent) under section 5(5) of Industrial Disputes Ordinance, 1959, after the issuance of failure certificate dated 24-6-1966. There were 24 demands in all. Under demand No. 1 except the names of workers given at Serial Nos. 2, 5, 7, 13, 14, 18, 19, 21, 22, 25, 26, 28, 29, 30, 31, 34 and 35 who did not put in appearance; the rest of the workers were ordered to be re-instated within one month from the date of announcement of the award. So far Muhammad Sadiq was concerned, he was not allowed back wages because he was re-appointed after his dismissal.
Under Demand No. 2 Muhammad Waris was allowed back wages from 12-11-1965 to 21-3-1966 and Mulazim Hussain from 3-11-1965 to 13-3-1966. Demands Nos. 3, 4, 7, 8, 9, 10, 12, 16, 20, 21, 23 and 24 were totally rejected. Demands Nos. 6, 11, 13, 14,15, 17 and 18 were accepted. Demand No. 5 was allowed to the extent that the rates of daily wages for the employees of the respondent of the class governed by Standing Orders Ordinance of 1968 and Road Transport Workers Ordinance will be the same as were prior to the amendment of these rules in the year 1965. The old rates would be given to the employees on the basis of their present pay. First part of Demand No. 19 was rejected and its second part was accepted. Similarly, first part of Demand No. 22 was rejected and its second part was accepted.
2. The General Secretary, West Pakistan Road Transport Workers' Union. Rawalpindi, filed an appeal (No. RI-64 of 1971) against the award in respect of Demands Nos. 3, 4, 8, 9, 10, 20 and 21. There was also a prayer for the modification of the award in respect of Demands Nos. 1, 7, 13, 16, 23 and 24. The Road Transport Corporation, Lahore, respondent, also filed a cross appeal (No. RI-67 of 1971) against the award in respect of Demands Nos. 1, 2, 5, 6, 13, 14, 18 and second part of demand No. 22.
Since both the appeals are against the same award they will be d1sposed of together.
3. I shall now take up the appeal filed by the General Secretary, West Pakistan Road Transport Workers' Union, Rawalpindi.
Demand No 3.-Under this demand it was claimed that the Cleaners who work on the District Routes be raised to the status of Conductors. The learned Chairman rejected this demand on the ground that if the Cleaners were converted into Conductors, then additional staff would have to be kept for loading and unloading luggage of the passenger s which would increase financial burden to the respondent to an unbearable extent. The reason for the demand is that now in Punjab the duties of distributing tickets is assigned to the Drivers, whereas in Hyderabad and North-Western Frontier Regions the duty of distribution of tickets was assigned to the Conductors and if the Cleaners are raised to status of Conductors then they can be assigned the duties of distribution of tickets.
4. The respondent resisted this demand on the ground that distribution of tickets bad been assigned to the Drivers under rule 98 of the Motor Vehicles Rules, 1969, which reads as under:- "The Driver of public service vehicle shall issue a ticket to a passenger immediately on demand of the fare or freight except where arrangements outside the vehicle for issue of the tickets in advance to the intending passengers on demand of the fare or freight exists and the passenger has in his possession such a ticket."
5. The contention of the appellant is that in actual practice Cleaners distribute tickets on buses and also receive half of the commission from the Drivers but as the responsibility has been fixed on the drivers for issuing the tickets the work is done in the names of the drivers. In support of this contention the appellant examined Mulazim Hussain (P. W. 30), Traffic Cleaner and Muhammad Hussain (P. W. 31), Driver. Mulazim Hussain P. W. Stated that the salary of a driver was Rs. 95 per mensem while the salary of a cleaner was Rs. 78 per mensem. Ordinarily the cleaner issued tickets en-route on the District Routes, whereas in local service it is the conductor who issues tickets to the passengers. He also stated that both of them are given training in the methods of issuing tickets and that they have to deposit Rs. 100 as security. He further stated that in District Routes the Drivers and the Cleaners get a commission of Rs. 6.00 per hundred, which is divided equally between them. Muhammad Hussain, P. W., supported him. The appellant also produced memorandum of settlement Exh. P-8 arrived at between Road Transport Corporation, Lahore and West Pakistan Transport Service Workers' Union, Hyderabad and agreement Exh. P-9 between Road Transport Corporation, Lahore and Road Transport Board Employees Union, TU-39, Peshawar. In Exh. P.-8 demand No. 8 was accepted by the management to the extent that the Cleaners would be redesignated as conductors with effect from 1-10-1966. In Exh. P-9, the Management had agreed to accept demand No. 1 of the Union regarding the fixation of pay scales of Traffic Cleaners of Peshawar Region at Rs. 90 per month Instead of Rs. 78 with effect from 1-3-1964.
6. In rebuttal the respondent examined Maqbool Ahmad Khan (P. W. 4), who stated :- "Driver in the area of former Punjab is supposed to be Incharge of the bus. It is his duty to issue tickets to the passengers en-route and collect fare from them. Cleaner is expected merely to load and unload the luggage of the passengers. He is also to point out to the driver of approaching vehicle from behind. The driver can stop the bus only at the stage meant for the purpose or at the fixed bus stops. He cannot drive the vehicle till the tickets have been sold to all the passengers. He is considered to be a responsible person as against Cleaner in the matter of handling cash."
The evidence produced by the respondent cannot be accepted because in the case Road Transport Corporation, Lahore v. Lal Khan (1), Mr. Inamullah Khan, Member, Labour Appellate Tribunal, West Pakistan, observed. "In the present case it appears from the to charge-sheets; which have been produced by the respondent before the learned Court issued against the Cleaners the charge-sheets which are at pages 25 and 27 of the record of the Labour Court that they were charged for refusing to issue tickets." It was also observed, "It is undoubtedly true that ticket books are issued by the Department in the name of the Driver and so far as the Department is concerned it is the Driver, who is responsible for sale of tickets en-route in all District Services. In practice, however, we find that it is very seldom that the Drivers sell the tickets themselves, these are invariably sold by the Cleaners".
7. From the above it is clear that in practice it is the Cleaner, who sells tickets en-route in all District Services. In other words he is performing the duties of a Conductor. Under these circumstances there is no justification in depriving him of remuneration of a Conductor. In any case, on principle there should be no discrimination amongst the employees of the same service, notwithstanding the fact that they are serving in different provinces. When the cleaners serving on district routes in Hyderabad and Peshawar Regions have admittedly been upgraded as Conductors, there is no earthly reason why the cleaners serving in Punjab should not be promoted as such.
8. Further in Minimum Wages Ordinance, 1961, the pay of a Conductor, who issues tickets en-route and handles cash is fixed at Rs. 90 while the Cleaner's pay is fixed at Rs.
78. The Conductor is shown in the mobile staff whereas Cleaner is shown in the non-mobile staff. If that is so, a Cleaner cannot be a member of a mobile staff and work in the bus on District Routes. Thus there is all the more reason that the cleaners should be compensated for this extra work.
9. In these circumstances, I set aside the award of the learned Chairman on Demand No. 3 and hold that there is good reason to grant this demand. Now the question for determination is from what period the Cleaners should be entitled to receive the pay of Conductor, because at present under West Pakistan Minimum Wages Ordinance, 1969, which came into force with effect from 1-7- 1969, the Cleaners are already getting pay at the rate of Rs. 115 per mensem. In the present case strike notice was given on 21-4-1966, Failure Certificate was issued on 24-6-1966, and the industrial dispute was filed in the lower Court on 28-6-1966. Therefore, the relevant period would be from 21- 4-1966 to 30-6-1969 and during that period the Cleaners would be entitled to receive the pay of Conductors, and I order accordingly.
10. Demand No. 4.-Under this demand it was prayed that the drivers should be allowed to earn commission on those passengers also which they pick up within the municipal limits en-route after coming out of the premises of the recog--nized bus stops. The appellant does not want to press this demand as it has already been accepted vide circular No. 2347 dated 16-7-1969 issued by the District Manager, Government Transport Service, Rawalpindi.
11. Demand No. 8.-Under this demand it is said that in the beginning the pay of a conductor was Rs.
40 and that of a driver Rs. 50 per mensem. Now the pay of driver has been raised to Rs. 150 per mensem and that of conductor Rs. 95 per mensem. As the difference in the pay of Conductors and Drivers in the beginning was Rs. 10 only, the demand is that pay of Conductor should be increased by Rs. 55 per month so as to keep a difference of Rs. 10 per month in his pay from that of Driver. This demand was rightly rejected by the learned Court because the pay-scale of different categories of workers have now been fixed in the Minimum Wages Board Award and the Conductors are being paid in accordance with that award.
12. Demand No. 9.-Under this demand it was desired that the respondent should issue free passes to the children of the employees for going to school, and return from there.
13. It was contended by the appellant that it causes great hardship to the employees because a substantial amount of their pay is spent in paying for the transportation charges for their children.
The appellant, however, did not produce any evidence on the record to show that in any comparable concern such a concession was being allowed to the children of the employees.
Under these circumstances this demand was rightly rejected.
14. Demand No. 10.-Under this demand the relief sought was that the drivers be allowed to remove their caps, while driving buses on the ground that due to perspiration it becomes uncomfortable.
Cap is a part of a uniform and has to be worn when a person is on duty. In other concerns like Railway and P. I. A. The persons who are on duty have to wear uniform which includes caps. In view of the above, this demand was rightly rejected.
15. Demand No. 20.-It pertains to subsistence allowance during the suspension period of a workman. This demand was dropped at the the of arguments before the Labour Court and therefore it was rightly rejected.
16. Demand No. 21.-Under this demand the claim put forth was that the ratio of 1/4 in pay in the subsistence allowance during the period of suspension be raised to 1/3. This demand is covered by demand No. 13 which was accepted.
Under these circumstances this demand had become infructuous and was rightly dismissed as such.
17. The appellant has also prayed for modification of the award in respect of Demands Nos. 1, 7, 13, 16, 23, and 24. So far the award in respect of Demands Nos. 1 and 13 is concerned, the prayers will be considered in Appeal No. RI-67 of 1971.
18. Demand No. 7.--Under this demand the appellant wants that workers be supplied details of leave granted and refused to them during the year. This demand had become redundant In view of Demand No. 6 having been accepted, whereby the details of leave accepted and refused would be found in the service book. In view of above, this demand was rightly rejected and the award requires no modification.
19. Demand No. 16.-Under this demand it was asked that instructions that no show-cause notice is required to be given alongwith the inquiry report, be cancelled. In view of many recent appellate decisions the respondent has withdrawn the aforementioned instructions and therefore, this demand had become infructuous and was rightly rejected and the award therefore requires no modification.
20. Demand No. 23.-Under this demand it was desired that the workers should not be punished unless he was afforded an opportunity to cross-examine the complainant. This demand was dropped because in practice respondent was allowing a worker to cross-examine not only the complainant but also witnesses appearing against him. As such this demand was rightly rejected and the award requires no modification.
21. Demand No. 24.-Under this demand it was claimed that workmen of Government Transport Service, Rawalpindi, be given Rs. 20 per month as conveyance allowance. At the the of the arguments, this demand was dropped and was rightly rejected. Hence the award requires no modification.
22. Now I shall advert to the appeal filed by the- Road Transport Corporation, Lahore.
23. Demand No. 1.-It was demanded that the workmen men--tioned in the list were illegally dismissed on account of their Trade Union activities and that they should be re-instated `with all the back wages. The learned Labour Court held that the order of dismissal of all the employees excerpt those men--tioned at Serial Nos. 2, 5, 7, 13, 14, 18, 19, 21, 22, 25, 26, 28, 29, 30, 31, 34, 35 and 36 who had not appeared were bad in law and therefore, directed all those employees to be re- instated. The learned Labour Court also observed, "Normally when re-instatement is ordered on some technical grounds, the employer has a right to remove the defects of inquiry and take action afresh. But in the present case the dismissal orders were passed as far back as the year 1964-55 so it does not look appropriate that a fresh inquiry be restarted by the employer against the re- instated workmen. As the employer has been stopped from re-starting the inquiry and removing the technical defects of inquiry and as none of them has been working for the respondent during all this period and re-instatement is ordered on account o technical defects in the inquiry, we think that the workers 4 are not entitled to the wages of period after the dismissal to the the of their re- instatement. These workers will be re-instated, within one month from the date of announcement of this award.
24. On going through the record, I find that none of the employees who were dismissed were served with a second show--cause notice after inquiry. It has been laid down in a series of decisions of this Tribunal that it was a legal necessity based on principles of natural justice that a second show-cause notice be given to the employees before ordering their dismissal. In view of the above their dismissal was rightly held to be bad in law.
25. Mr. Nazir Ahmad Naz on behalf of West Pakistan Road Transport Workers' Union, Rawalpindi contended that since the dismissal of the employees was bad in law, they are entitled to back wages from the date of their dismissal. In support of his contention he relied on a decision of the Labour Appellate Tribunal, West Pakistan, in the case Muhammad Islam v. The Road Transport Corporation, Lahore (1969 PLC 545), wherein it was observed:- "The general rule is where an employee remains out of employment as a result of an illegal order, he would be entitled to wages for the period of his unemployment, as a result of an order which was found to be bad in law."
This decision was based on a ruling of the Supreme Court in the case of Divisional Superintendent, N. W. R., Lahore v. Muhammad Sharif (1963 PLC 696), wherein it was observed -- "The order of removal from service was cancelled and claimant was re-instated to his old post.
Thus the relationship of the employer and employee was not in dispute. As the employee was all along challenging the legality of the order of his removal from service, it could be said that he was all along ready and willing to render service to his employer. Hence the authority rightly held that the mere fact that the employee was not given work by the employer will not derogate his right to receive his wages."
In the present case, I find that some of these employees had filed departmental appeals against their dismissal which are still pending. They are Qurban Ali (P. W. 7), Manzoor Hussain (P. W. 10), Muzaffar Khan (P. W. 12), Saifullah (P. W. 18) and Karamdad (P. W. 21). In the case of Muhammad Hussain (P. W. 8) when his appeal was projected, he had filed a revision which is still pending. Noor Ilahi (P. W. 9), Ghulam Asghar (P. W. 14) and Dilawar Ali (P. W. 23) stated that their appeals had been rejected without hearing theca. From the above it is clear that only aforementioned employees have been challenging the legality of order of their removal from service and so relying on the law laid down by the Supreme Court in the afore--mentioned ruling, I hold that only those persons whose names are mentioned above are entitled to back wages from the date of their dismissal to the the of their re-instatement. This does not cove the case of the persons, whose names are not mentioned above. The award of the learned Chairman of the Labour Court Is, accordingly, upheld with the modification mentioned above.
26. Demand No. 2.-Under this demand back wages of Muhammad Waris, Conductor and Traffic Cleaner and Mulazim Hussain have been claimed on the ground that when they were re-instated by the higher authorities, they were not paid back wages. The learned Labour Court allowed back wages to Muhammad Waris from 12-11-1965 to 21-3-1966 and to Mulazim Hussain from 3-11-1966 at the rate of wages which they were earning at the the of their dismissal.
27. Taking the case of Muhammad Waris, I find that he was first dismissed on 10-5-1965 and was re-instated on 17-8-1965. He was again dismissed on 13-11-1965 and was re-instated on 22-3-1966.
The respondent had claimed that he was entitled to back wages when he was first dismissed because his dismissal was illegal. The appellant contended that when he was first dismissed, he was not entitled to wages for that period because he was a probationer. The appellant's contention was rightly rejected by the learned Chairman of the Labour Court on the ground that his services were terminated on account of misconduct for which no inquiry was held. In other words, his dismissal was illegal. There is, however, an application Exh. P-3 on the record filed by Muhammad Waris showing that he after his first dismissal had prayed for re-instatement or re-appointment and the appellant instead of re-instatement had re-appointed him. In view of the above he is not entitled to back wages from the date of his first dismissal. On 13- 11-1965, he was again dismissed and was re-instated on 22-3-1966. This dismissal was illegal because he was an office-bearer of a Trade Union and as such could not have been dismissed without prior permission of the Labour Court. In view of the above, he is entitled to back wages from 12-11-1965 to 21-3-1966 at the rate of wages he was drawing at the the of his dismissal.
28. Now taking the case of Mulazim Hussain, I find that he was dismissed on 6-11-1965 and was re- instated on 14-3-1966 because his dismissal was illegal. Since he was deprived of his wages for that period I.e. From 3-11-1965 to 13-3-1966 at the rate of wages which he was getting at the the of his dismissal. I, accordingly uphold the award of learned Labour Court in respect of this demand.
29. Demand No. 5.-Under this demand the respondent wanted an increase in daily allowance while on travelling duty. The old rates according to 1959-Rules were Re. 1 for a person with a pay of Rs. 150 and Re. 0.75 for a person having pay of Rs.
50. The respondent had desired that these should be increased three-fold as the cost of living had arisen threefold. The learned Labour Court accepted this demand to the extent that the rates of daily allowance for the employees of the Road Transport Corporation of the class governed by Standing Orders Ordinance, 1969 and Road Transport Workers Ordinance would be the same as were prior to the amendment of these rates in the year 1965. In other words the old rates would be given to the employees on the basis of their present pay.
30. The appellant contended that this demand should not have been accepted because there has been an increase in daily allowance on travelling duty.
31. Originally daily allowance of Rs. 2.50 per day for ordinary stations and Rs. 3 for costly stations was given to drivers earning pay up to Rs. 145 per mensem. In the year 1959 the rates of daily allowance were Rs. 1.50 for ordinary stations and Rs. 2 for expensive stations for those, who were drawing pay less than Rs. 40 per month. The rates of daily allowance for those getting pay from Rs.
40 to Rs. 149 was Rs. 2.50 and Rs. 3 for ordinary and expensive station, respectively. The rates of daily allowance for employees getting pay from Rs 150 to Rs. 249 per month was Rs. 4 and Rs. 5 for ordinary and expensive stations, respectively. In January 1965, however, these rules were changed and rates of those employees getting pay from Rs. 85 to Rs. 199 per month was Rs. 2.50 for ordinary stations and Rs. 3 for expensive stations. For employees getting pay from Rs. 200 to Rs. 299 per mensem the rates of daily allowance was Rs. 4 and Rs. 5 for ordinary and expensive stations, respectively. By comparison of above tables, it is clear that an employee, who was getting Rs. 150 per month was drawing higher daily allowance than what was being allowed to him subsequently in the revised scale of 1965. Instead of increasing the daily allowance in 1965 on account of high cost of living the scale of the daily allowance was reduced, which in my opinion was extremely unfair. I, accordingly, uphold the award of the learned Chairman of the Labour Court with respect to this demand.
32. Demand No. 6.-Under this demand the employees of Road Transport Corporation had asked that duplicate service books be maintained by the Road Transport Corporation. The learned Labour Court gave an award accepting this demand.
33. Appellant does not challenge this demand on the ground that it has already been implemented.
34. Demand No. 13.-Muhammad Arif, Muhammad Iqbal, Conductors, Fazal Karim Allah Jawaya, Muhammad Banaras, Sumandar Khan, Muhammad Hussain Ismail Khan and Zabir Dad Khan Drivers, were suspended on 24-7-1964 and were re-instated on 1-11-1964 and not on 31-7-1964 as mentioned by the Labour Court. This is definitely a mistake. It was demanded that after their re- instatement they were entitled to full wages for the period under suspension. The learned Labour Court directed that each one of them should be paid wages for that period minus the sum already received by them. The demand was therefore accepted in the terms mentioned above.
35. The learned Labour Court rightly accepted this demand in view of Sub-Clause (5) of Standing Order No. 13 of the Industrial and Commercial Employment (Standing Orders) Ordin--ance, 1960 which was then in force. According to Sub-Clause (5) if the order of suspension is rescinded, the workman is deemed to have been on duty during the period of suspension and shall be entitled to the same full wages as he would have received, if he had not been suspended. Since the workmen mentioned above were suspended and re-instated, they were deemed to be on duty from 24-7- 1964 to 1-11-1964 and as such were rightly entitled to payments of full wages for that period.
36. I, accordingly, modify the award given by the learned Labour Court in respect of this demand, and direct that the aforementioned employees be paid full wages from 24-7-1964 to 1-11-1964.
37. Demand No. 14.-Under this demand the respondent desired that the orders of punishment in nature of compensation, fines, stoppage of annual increments and payment of bonus be cancelled, which were passed against Noor Khan, Alaf Din, Awwal Hussain, Muhammad Anwar, Abdul Haque, Bakhat Awar Khan, Khan Zaman, Drivers and Mushtaq Cleaner. The learned Labour Court observed. In Standing Order No. 13 Standing Orders Ordinance, 1960 punishment was provided for certain acts and omissions of the workmen. The punishment of stoppage of bonus or increment is not provided for in this Standing Order or in any other provision of this Ordinance. The conditions of stoppage of increment and bonus as provided in Appendix "B" are in conflict with this Ordinance and as such they shall both apply to the workmen mentioned in this demand. As such, order of stoppage of increment and bonus which were passed after the enforcement of Standing Orders Ordinance of 1960 are clearly bad in law. All such orders of stoppage of increment or payment of bonus are set aside. So far as the question of compensation against loss caused by any workers is concerned, there is no provision in law for ordering payment of such a compensation. This item is at par with stoppage of increment and bonus. Any orders passed for compensa--tion for loss caused and any compensation recovered in this connection beyond the permissible limits of fine as given in the Standing Order No. 13 of 1960 is illegal. As such any amount recovered towards compensation beyond the permissible limit of fine is refundable to these workers. Any compensation realized from them beyond that limit is illegal and the order of realization of compensation in that connection is set aside. The respondent it directed to repay such excess compensation to each one of them from whom it has been realized under this demand. Demand No. 14 is accepted in the terms mentioned above.
38. The appellant contended that punishment was provided for in the Service Rules of 1954, which had been held applicable to the respondent and was also provided for In the instructions contained in Appendix "B" mentioned earlier.
39. This contention has no force because Service Rules of 1954 were not in force at the the when the said punishments were awarded. However, Appendix "B" which was issued in the year 1958 was subsequently abrogated, in view of the Standing Orders Ordinance of 1960, which does not provide for stoppage of increment or bonus. Thus Appendix "B" is in conflict with this Ordinance and as such shall not apply to the workmen mentioned in this demand.
40. In the result, I uphold the award of the learned Labour Court with respect to this demand.
41. Demand No. 18.-Under this demand it was put forth that period for filing an appeal or revision should be made six weeks instead of 30 days from the date of the order.
42. In Service Rules of 1959, the period for filing an appeal and revision has been fixed as six weeks from the date of the impugned order. Since in demand No. 1 it has been held that provisions pertaining to appeal and revision given in Service Rules of 1959 have been practised in the case of workers, this demand was rightly accepted.
43. Demand No. 22 (second part).-Under this demand it was claimed that when a complaint was made by some outside agency against a workman and he is charge-sheeted as a result thereof, a copy of that complaint should at least, be given to him so that he may be able to prepare his defence properly. The learned Labour Court gave an award accepting this demand.
44. The appellant contended that this demand should not have been accepted because it will not only cause unnecessary inconvenience to the Department but also it will not be necessary because when a workman is charge-sheeted, all the allegations are mentioned therein so that he may be able to meet the charge.
45. This contention has no force because unless a copy of the original complaint is provided to a workman, he will not be able to meet the charge properly. In any case, this demand is, compatible with the principles of natural justice and as such was rightly accepted. I, accordingly, uphold the award of the learned Labour Court with respect to this demand.
In the result. Appeal No. RI-64 of 1971 partly succeeds inas--much as the award in respect of Demand No. 3 is set aside, award in respect of Demands Nos. 1 and 13 is modified, while the award on Demands Nos. 4, 7, 8, 9, 10, 16, 20, 21, 23 and 24 is maintained. However, Appeal No. RI-67 of 1971 is dismissed in toto.