AWARD These are two appeals against the award dated March 11, 1972. I propose to dispose of these two appeals by a common order as the facts and the points raised by the learned Representatives for the parties are common to both the appeals. The facts giving rise to the appeals briefly put are these.
2. Abdul Sattar and Wazir Muhammad, Drivers, the appellants before me were in the employment of Messrs Pakistan Oxygen Limited (hereinafter called the respondents). They were permanent drivers. Their duty was to carry Oxygen Cylinders for supplying to the customers. They claimed that they were concerned in Industrial Dispute No. 4 of 1968. One of the demands was to give proper grade to the appellants and others. According to the appellants this resulted in the displeasure of the Management and they were charge-sheeted on 19th September 1968 for supplying empty cylinders instead of cylinders filled with gas. An enquiry was held and they were found guilty of misconduct and were dismissed from service on 7th October 1968.
3. According to the appellants, no enquiry was held against them and that the order of dismissal was pissed by a person not competent to do so.
4. The appellants examined themselves and relied on the statements of Muhammad Shard and Muhammad Yousuf. On the other hand, the respondents examined Shaikh Muhammad Rafique, who had passed the order of dismissal and A. Q. Malik, the Enquiry Officer in the case of Abdul Sattar, Driver and Mahboob Khan, who was present at the enquiry held by G. S. Ruben, who had left service of the Company.
5. A preliminary objection was taken before the learned Labour Court that the application under section 38 of the Industrial Disputes Ordinance, 1963 (hereinafter called the Ordinance of 1968), was not maintainable, as that appellants were not dismissed for misconduct connected with industrial dispute. The learned Court came to the conclusion that the appellants were not dismissed for misconduct connected with the industrial dispute. None of the demands of the industrial dispute were connected with the supply of empty cylinders to customers.
6. The learned Court further came to the conclusion that a fair enquiry was held against the appellants in which they were given full opportunity to defend themselves. The learned Court also carne to the conclusion that Shaikh Ra5q Ahmed was competent to dismiss the appellants. On these findings the learned Court dismissed the applications under section 38 of the Ordinance of 1968.
7. Mr. M. A. Khan, the learned Representative for the respondents, raised a preliminary objection that in view of the settlement dated 10th February 1972, between the Collective Bargaining Agent and the respondents, the appeals are not maintainable. The relevant portion of the settlement arrived at between the Collective Bargaining Agent and the respondents reads as under:- "The settlement reached between Pakistan Oxygen Limited, the employer, and Pakistan Oxygen Employees' Union, Karachi in the matter of two drivers who were dismissed in. 1968 on account of misconduct and whose case is before the Court, namely: Abdul Sattar and Muhammad Wazir. It is under stood that the Court will give its judgment on 10th March 1972. It' re-instatement is ordered by the Court, it would be accepted by the Company in accordance with the agreement between the Company and the Union reached earlier.
However, If their case is not maintained and they are not re-Instated, then it is agreed that as a gesture of goodwill the Company will pay 'o the two drivers, the Company's pro--portion of the Provident Fund and the Gratuity according to the rules and their dismissal will be treated is a termination of service. It is expected that the decision of the Court will be made on 10th March 1972; but if it is delayed the Company will keep in suspense from today's date for a period up to six months the wages due to the two drivers in question, if their re-instatement is ordered."
8. On the basis of the shove agreement, it was contended by Mr. khan, the learned representative for the respondents that the warned Labour Court having dismissed the applications of the drivers for reinstatement, the driver's appeals for re-instate--ment are no longer maintainable. The agreement having been arrived at on 10th February 1972, the provisions of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance of 1969), will be applicable. Under section 39 of the Ordinance of 1969, a settlement arrived at in the course of conciliation proceedings, where a Collective Bargaining Agent is one of the parties to the dispute, be binding on all workmen who were employed in the establishment or industry to which the industrial dispute relates on the date on which the dispute first arose or who are employed therein after that date. Relying on this provision of law, Mr. Khan contended that admittedly the agreement was arrived at between the Collective Bargaining Agent and the Management. The agreement was binding on the two drivers.
Mr. A. Majeed, the learned Representative for the appellants, however, contended that it is not all agreements, which would bind the two drivers. The agreement in order to have the binding effect provided under section 39 of the Ordinance of 1969 must be an agreement as mentioned is toe definition of settle--ment. Settlement is defined under section 2(xxiv) of the Ordinance of 1969. It reads as under:- " Settlement' means a settlement arrived at in the course of a conciliation proceeding, and includes an agreement between an employer and his workmen arrived at otherwise than in the course ok any conciliation proceedings, where such agreement is in writing, has been signed by the parties thereof such manner as may be prescribed and a copy they of ha been sent to the Provincial Government, the Conciliator ant such other person as may be, prescribed."
9. There is nothing on the record to show that a copy o the agreement dated 10th February 1972, was sent to the Provincial Government or to the. Conciliator. In that view of the matter, the agreement being not in accordance with the provisions of tire Ordinance J 1969 cannot have the binding effect under section 39 of the Ordinance of 1969 on the two drivers.
10. Mr. M: A. Khan, the learned Representative for to respondent, contended that at any rate the settlement dated 14t October 1970, arrived at between the Collective Bargaining Agent and the Management would be binding on the workmen under section 39 of the Ordinance of 1969 It was contended that i the case of settlement, which had been arrived at during conciliation proceedings and signed before the Conciliation Other, it was not necessary to send a copy thereof to the Provincial Government. A perusal of the definition of settle--ment supports the contention of Mr. M.
A. Khan.
11. The relevant potion of section 39 of the Ordinance of 1969, necessary for the consideration of the contentions of the learned Representatives for the parties is ~s under:-- "(1) A settlement arrived at in the course of a conciliation proceedings, or an award of an arbitrator published under section 31, or an award o: decision of a Labour Court delivered under section 37 or the decision of the Tribunal under section 38, shall- (a)
(b)
(c)
Where a collective bargaining agent is one of the parties to the dispute, be" binding on all workmen who were employed in the establishment or industry to which the industrial dispute relates on the date on which the dispute first arose or who are employed therein after that date."
12. Mr. A. Majeed, the learned Representative for the appellants, contended in the first place that the settlement will be binding only on workmen who were employed in the industry on the case on which the dispute first arose. He contended that the dispute arose only after the two drivers had been dismissed from service. The drivers, therefore, cannot be said to ho in the employment on the date when the dispute arose. 7h definition of tile term "workman", however, would show this for the purposes of industrial dispute a workman who has been dismissed will continue to be a workman.
The definition is given under section 2(xxviii) of the Ordinance of 1969, which reads as under:- ---. . . . . ---Workmen--- mean any person not falling within the definition of employer who is employed (including employ--ment as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be expressed or Implied, and for the purpose of any proceedings under this Ordinance In relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment In connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay off, or removal has led to that dispute."
13. It, the next place Mr. Majeed contended that under the terms, of the battlement the settlement expired on 28th February 1971, and, therefore, the settlement a not now binding on the appellants. It is true that under Section 40 of the Ordinance of 1969, the settlement was binding for the period agreed upon, i.e. up to 28th February 1971.
14. Demand No. 25 is in respect of the two appellants, which reads as under:- "Re-instatement of Drivers Abdul Sattar and Nazir Muhammad, In disposal of Demand No. 25, it is agreed that as this matter is before the Court we should wait decision and the Company and the Union will abide by the decision of the Court."
15. The learned Labour Court gave its award an 11th March 1972, whereby it dismissed the applications of tile appellants. On the face of it, so far as the compromise in respect of Demand No. 25 is concerned, it does not contemplate that if the decision is not given by the Court within a certain period, it will not be binding on the parties. At any rate, even if the settlement had expired and had ceased to be binding on the parties under the provisions of section 39 of the Ordinance of 1969, it will continue to have its effect a9 contract between the parties that has been made between the Collective Bargaining) Agent and the Management. It will continuo to be binding on the parties until another contract is made. In this connection reference may be made to South Indian Company Limited v. A. R. Chacko (AIR 1969 SC 1622). Reference may also be made to D. B. of Dacca High Court in the case of Pakistan Tobacco Company Limited, Chittagong v. The Chairman, Second Labour Court of East Pakistan and 18 others (1972 F L C 190). In this connection a brief reference may be made to the terms of the settlement dated 14th October 1970. The agreement arrived at between the parties had far reaching effects. The settlement deals with as many as 27 demands. Under the settlement the Management agreed to improve the Chowkidars' quarters, to build a new late, Zakir Husain was given a better grade, and the drivers performing heavy duty were given better allowances and were given the same facilities as given to Lahore drivers. A number of workmen were given better facilities. The Demonstrators were required only to work 361/2 hours per week. It was agreed that the Motorcycle Scheme would continue. The grades of Sales Representatives were to remain unaltered. The Company agreed to open Fair-Price Shop and there would be Works Canteen. The Chairman, Canteen Committee would be the Union's Representative and there were a number of other demands, which has been conceded to by the Management. It is noteworthy that the settlement arrived at between the parties Is of such 's, nature that if it was to come to an end by 28th February 1971, there will be at once trouble between the employers and the workmen. This cannot be conducive to the industrial peace. The Management had agreed, for Instance, to have the Chairman of the Canteen Committee from the Representatives of the workmen. If the Management were to refuse to have a Chairman on the ground that the settlement had expired on 28th February 1471, there will surely he breach of peace.
The agreement though It came to an end on 28th February 1971, continued to operate between the parties as a contract till it Is replaced by another contract, The binding effect of the settlement between the Collective Bargaining Agent and the Management cannot in equity and fairness be ignored to suit the two driver; of the Ltd.Company. The settlement has conferred material advantages] on a number of workmen. It is not the case of the appellants that they did not know that the Collective Bargaining Agent had entered into any settlement in respect of their re - instatement. It i; also not their case that the Collective Bargaining Agent has played any fraud on them, The drivers may have expected that, the decision of the Court may go in their favour. But that would be no ground to ignore the settlement as the decision had gone against them.
16. Mr. Majeed also contended that the "Court" under the settlement would include the appellate tribunal and therefore, the settlement regarding the drivers has not yet become final. There is no force in this contention. The Court In the settlement means only the Labour Court. Had the intention of the parties been otherwise, they would not have mentioned that they would abide by the decision of the Court. They would have mentioned that they would abide by the decision of the appellate tribunal. In this connection, Mr. Majeed also contended that the right of appeal cannot be taken away by settlement. There is no force in this contention. It is open to the parties to abide by the decision of the Labour Court without going to appeal.
17. It was submitted by Mr. Majeed that the appellants made their applications under section 38 of the Ordinance of 1968 on 26th October 1968, while the demand by the Collective Bargaining Agent in respect of their re-instatement was raised on 14th September 1970. The demand in respect of their re-instatement having been raised by the drivers in 1968,the latter demand by the Union in 1970 was not tenable in law. There is not much force in 1 his contention. There is nothing in the ordinance of 1969 to limit the authority or the power of the Collective Bargaining Agent to negotiate or to raise demands. As the application under section 38 of the Ordinance of 1968 was made in 1968 and nothing had transpired till 1970 the Collective Bargaining Agent proposed to achieve re- instatement of the drivers along with other demands through a strike-notice. Strike-notice is a very effective weapon to achieve the demands made by the Collective Bargaining Agent. The individual worker has no power to resort to strike. In these circumstances, it cannot be said that the strike- notice and the ultimate settlement arrived at between the Collective Bargaining Agent and the Management was not enforceable in law and was not binding o1 workmen.
18. Lastly, it was submitted, relying on- section 44 of the Ordinance of 1969, that the strike-notice was bad in law as an application under section 38 of the Ordinance of 1968 was pending before the Court. The Collective Bargaining Agent could not give notice in respect of the same. The notice -being bad in law, tile settlement arrived at between the Management and the Collective Bargaining Agent was also bad. The short question for consideration in this connection is as to whether the Collective Bargaining Agent could take this plea having taken tall the advantages that accrued under the- settlement dated 14th October 1970. If the plea is not open to the Collective Bargaining Agent, it can surely be not open to an individual workman. A party who accepted benefits under the transaction cannot subsequently challenge the transaction. The party cannot be permitted to approbate and reprobate in respect of the same matter. The Collective Bargaining Agent cannot be allowed to take all the benefit that accrued to the workmen under the settlement and later on challenge the same as invalid. The two drivers cannot be allowed to challenge the settlement simply because the decision of the Court had gone against them. They would have been only too willing to accept the settlement if the decision of the Court was in their favour. I would hold that the appellants cannot be allowed to contend that the settlement was invalid on some legal grounds, where it had been acted upon by the parties and advantage taken by the workmen. Moreover, a plea that is not open to the Collective Bargaining Agent, cannot be permitted to be taken by an individual workman.
19. As i have come to the conclusion that the settlement is binding on the appellants, their appeals could have been dismissed without any further observations. There is, however, one point that requires consideration. The agreement dated 10th February 1972, arrived at between the Union and the Management though not binding in law on the parties, but as the Management does not challenge the binding effect of the said agreement, the appellants would be entitled to take advantage of the same. The relevant portion of the agreement dated 10th February 1972, reads as under:- "It is understood that the Court will give its judgment on 10th March 1972. If re-instatement is ordered by the Court, it would be accepted by the Company in accordance with the agreement between the Company and the Union reached earlier.
However, if their case is not maintained and they are not re-instated, then it is agreed that as a gesture of goodwill the Company will pay to the two drivers, the Company's proportion of the Provident Fund and the Gratuity according to the rules and their dismissal will be treated as a termination of service."
20. It is not necessary to consider the contention of Mr. Majeed on the merit of the appeals, in view of my conclusion that the settlement is binding on the appellants.
21. The order of the learned Labour Court is maintained with this modification that the Company would pay to the drivers its proportion of the Provident Fund and the Gratuity according to the rules and their dismissal will be treated as termination of service. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.