This is an appeal brought by Associated Electrical Industries (Pakistan) Ltd., Karachi (hereinafter referred to as A. E. Industries) under section 12(5) of the Industrial disputes Ordinance, 1959 (hereinafter called the Repealed Ordinance) against the award announced by the Industrial Court of West Pakistan, Karachi on 2nd of July 1966, which award was published in the Gazette of West Pakistan (Extraordinary), dated 21st September 1966. This award was given in the industrial dispute raised by the employees' Union of the A. E. Industries called as Associated Electrical Industries Employees' Union (hereinafter referred to as the Employees' Union), who desired adjudication and determination of 27 demands of their's preferred by them against their employer company.
2. It appears that a dispute arose between the respondent .Employees' Union herein and their employer company i.e. A. E. Industries, the appellants, in the year 1963. The employees' Union submitted a charter of 27 demands to their employer company, the appellants, on 1-7-1963. On 8- 7-1963, conciliation proceedings started between the parties and they failed on 35-8-1963.
Accordingly, the Failure Certificate dated 15-8-1963 was issued by the Conciliation Officer, who held the conciliation proceedings. Thereafter, tire employees' Union, the respondents, brought their industrial dispute into the industrial Court of West Pakistan at Karachi by filing their statement of claims containing 27 demands of their's therein on 17-8-1963. This Industrial dispute raising the said demands was resisted by the appellants A. E. Industries and they filed their written statement in the industrial Court. The said Court thereafter proceeded with the matter and recorded evidence of both the sides. On behalf of the employees' Union seven witnesses were examined and on the part of the A. E. Industries, the appellants, the evidence of two witnesses was got recorded. After that the said Industrial Court gave its award as already mentioned above and hence this appeal. In this appeal the whole award deciding all the 27 demands has not been challenged but the findings in the :Impugned award regarding Demands Nos. 6(c), 11, 16(c), 24(b) and 25 are challenged.
3. It will take up these disputed demands in their serial order and deal with them one by one.
4. Demand No. 6 (c) of the employees' Union is that copies of entire proceedings/findings of enquiry should be provided to the employee concerned on demand. This demand relates to the disciplinary action procedure against the employees of the A. E. Industries and their Management in its reply in their statement at page 6 have stated that it falls under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1960, wherein the relevant procedure is laid down. This position has been accepted by the Union before the Industrial Court. The learned counsel for the appellants before me only appeared but .On behalf of the respondents employees'
Union no one was present and the appeal was heard in their absence. The appellants' counsel on the demand under consideration regarding supply of copies asked for in this demand referred me to the Industrial and Commercial Employment (Standing Orders) Ordinance, 1960 thereinafter referred to as the Standing Orders Ordinance) and particularly to Standing Order 13 of it. This order deals with the fine which may be imposed upon a workman by hit employer, his suspension and dismissal. Para. 4 of this Standing Order is relevant for the present demand and the material portion of it says that no order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct and is given an opportunity to explain the circum stances alleged against him. Para. 5 of this Standing Order which also can be invoked materially lays down that an order of suspension shall be in writing and may take effect Immediately on delivery to the workman and such order shall set out in detail the alleged misconduct and the workman shall be give an opportunity of explaining the circumstances alleged against him. The last para. 6 of this Standing Order materially lays down that a copy of the order passed by the manager (for dismissal) shall-be supplied to the workman concerned. These provisions, according to the learned counsel for the appellants, give the right to a workman to have the copies of the alleged misconduct, order of suspension, which has to set out in detail the alleged misconduct and lastly a copy of the order passed by the Manager for dismissal shall also be supplied to the workman concerned are sufficient for the purpose of the workman concerned as all these documents required by him will, according to him, serve his purpose. I am afraid, this argument of the learned counsel for the appellants does not impress me. A workman who is suspended and dismissed after a domestic enquiry which is held against him by its employer, has to seek redress in the Industrial Court concerned for any grievance that he has and for the purpose of representing his case properly there he requires apart from the copies of the above-mentioned documents referred to in paragraphs 4, 5 and 6 of the Standing Order under consideration, the copies of statements of all the witnesses recorded during the domestic enquiry, otherwise he will not be able to discuss his case thoroughly when he approaches the Industrial Court for redress. The domesti enquiries procedure is in the nature of quasi-judicial procedure as such I consider it necessary that the workman against whom an enquiry has been held by his employer should in all fairness be supplied with the copies of statements of all witnesses whose evidence is recorded during the course of enquiry. I need hardly say that the employer viz-a-viz his employee should act fairly and reasonably towards him in all matters connected between the two. I, therefore, find that on this demand it will be sufficient to order that apart from the copies of documents mentioned in paras.
4, 5 and 6 of the Standing Order No. 13, the copies of the evidence of all witnesses examined at the domestic enquiry should also be supplied to the workman concerned. The finding of the Industrial Court below is in the words "I would however, add that in the interest of justice and conscience, the Management should supply copies of the entire proceedings and. Findings of enquiry to the employee concerned on demand. Award accordingly." This finding in my opinion, Is very broad--- based and the direction that I have given on this demand as mentioned above, would clearly and sufficiently satisfy the requirement of an aggrieved workman from a decision in the domestic enquiry against him. Accordingly, the award on this demand shall stand modified by my finding mentioned' above. The appellant company shall in future comply with, he decision on this demand as given by me recorded above.
5. Demand No. 11 is that privilege leave should be increased from 15 days to 30 days per year, cumulative up to 90 days.
6. It is an admitted position that the appellant A. E. Industries grants 15 days' privilege leave to its workman cumulative up to 30 days and a workman who has put in 10 years of service is granted 21, days' privilege leave cumulative up to 42 days. This has been admitted by Ishtiaq (A. W. 2) witness for the employees' Union. Ghulam Mohammad (R. W. 1) on behalf of the appellants A. E. Industries, who is their Personnel Officer, has also stated likewise. The learned counsel for the appellants contended that this demand is unjustified and in this connection he referred me to the statutory provisions in the relevant law reading the Annual Holidays which is mentioned in Standing Order No. 8 of the Standing Order Ordinance, wherein regarding leave it is laid down that holidays with pay shall be allowed to workmen as provided for in Chapter 4-A of the Factories Act, 1934 and other holidays in accordance with the law, contract, custom and usage. The relevant section of the Factories Act is section 49-B which speaks of the annual holidays. The material portion of section 49-B is in the following terms :- "49-B. Annual holidays.-(1) Every worker who has completed a period of twelve months' continuous service in a factory shall be allowed, during the subsequent period of twelve months holidays for a period of ten or, if a child, fourteen consecutive days, inclusive of the day or days, if any, on which he is entitled to a holiday under subsection (1) of section 35.
(2) If a worker fails in any one such period of twelve months to take the whole of the holidays allowed to him under sub. Section (1), any holidays not taken by him shall be added to the holidays to be allowed to him under subsection (1) in the succeeding period of twelve months, so however that the total number of holidays which may be carried forward to a succeeding period shall not exceed ten or, is the case of child, fourteen."
7. Referring to this section counsel for the appellants contended that the workers of the employees'
Union are already getting more holidays than what are prescribed by said section 49-B and besides that the workers also get medical leave for 14 days up to one month. On this demand the finding of the Industrial Court below is, " . . . . . . . . .That 21 days' privilege leave in a year should be granted cumulative up to 60 days to every worker who has completed at least one year's service.
"The learned counsel for the appellants has referred me to the evidence of Anisur Rehman (A. W. 5) an employee of General Electric Corporation Co. Who says that employees of that company get 21 days' privilege leave which is carried forward to 42 days. Ishtfaq (A. W. 2) has produced the comparative statement of other three companies as chart Exh. A/4 in which position in the three companies namely, B. I. C. C., G. E. C. And Greaves Compton is mentioned. In the B. I. C. C. Co. 21 days' privilege leave cumulative up to 3 years is allowed, in the G E. C. Co. 21 days privilege leave is granted to its employees and in Greaves Compton 30 days' privilege leave cumulative up to 16 days is allowed to its workmen. It will be seen from these comparative details that at least 21 days' privilege leave is allowed to each workman by the other comparable concern noted in Exh A/4 and the accumulative leave works out to at least 60 days in these comparable concerns which has been allowed by the award. I therefore, find that the award on this point is quite reasonably; and just as such it ought not to be disturbed. However, the learned counsel for the appellant has attempted to dislodge me on this demand by arguing that the other comparable concerns were not shown to be similar or identical concerns with the A. E. Industries, the appellant company. He also said besides the privilege leave, his clients grant sick leave 14 days in a year and after 5 years of service 30 days with full pay. According to him, therefore, the appellant company satisfies more than the relevant provisions of the Factories Act as to this demand in respect of privilege leave, therefore, there was no ground to justify the award passed on this demand. In support of his contention he cited the case of Saifee Development Corporation Ltd. v. Workers' Union (PLD 1965 Kar. 347), wherein it has been held that leave of 15 days earned, 10 days sick and 5 days casual in addition to festival holidays were held to be reasonable. I like to say with reference to this authority that each case is to be decided upon the facts and circumstances as appearing therein and no universal and inflexable rule regarding the custom o $ privilege leave obtaining in various concerns can be laid down a yardstick. I am, therefore, of the opinion that the cited authority was applicable to the facts and circumstances of the case as were found therein but in the instant case there is sufficient evidence coming from the other concerns to show and support the finding of the Industrial Court on this point with which I agree.
8. The learned counsel for the appellant also argued that the appellant A. E. Industries were running into a loss and were not making any profits and they were not a manufacturing company while the comparable concerns were trading and manu--facturing companies, therefore, the grant of privilege leave allowed by the award was justified under the circumstances of this case. In this connection he referred me to the finding of the Industrial Court to the effect on page 2639 of the Published award, "the Union has not been able to show the financial position of these three companies. The fact that these three companies, apart from being trading companies are also manufacturing companies." But in reply, I think it can be stated by the other side that as admitted by the appellants' witness Mr. Halloway, Assistant Managing Director that the appellant company in Pakistan Is owned by the Associated Electrical Industries England, therefore, it is quite obvious that even though the financial position of the appellant company for some years was not sound that would no have any effect adversely on the finding reached on this demand. Accordingly, I confirm the finding in the award on this demand and do not see any sufficient or good ground to disturb that finding.
9. Demand No. 16(c).-In this demand Bonus for the year 1961 has been claimed, which should be equivalent to two months basic salary per year and it should be to all the employees of the appellants, A. E. Industries.
10. On this demand the contention of the appellants' counsel is that the payment of Bonus to its employees is not a statutory obligation on any industrial company and particularly in the year 1961 in which Bonus is being claimed. In that year the appellant company went into losses of some lakhs of rupees, therefore, the workmen's demand for Bonus for (hat year 1s not justified. To prove the losses he referred me to the evidence of (R. W. 2) Mr. Halloway aforesaid, who has produced the balance sheet of the appellant company as on 31st October 1961 as Exh. R. W. 2/1 and he says that during the period ending 31-10-1961, the appellant company handled a total business of about 49 lakhs but on this business the company suffered a loss of Rs. 3,19,155.00 in that year. The balance- sheet as also the profit and loss account which have also been produced by this witness as Exh. R.
W- 2/4 shows this loss which fact cannot, therefore, be denied. In support of this contention the learned counsel for the appellant has relied upon two authorities of the Supreme Court which are the case of Saifee Develop--ment Corporation Ltd. v. Pakistan and 2 others (PLD 1961 SC 39) and Pakistan Petroleum Workers' Federation v. Burmah Shell Oil Storage d? Distributing Co. Of Pakistan Ltd. And 7 others (PLD 1961 SC 479M) as well as several other connected appeals decided by the Supreme Court. In the first mentioned reported authority it has been held by the Supreme Court: "It is clear that the Management did not make any profit for the year 1956 and as such the workers were not entitled to get any Bonus that year."
"One cannot fail to be impresses, by the fact of the very great increase in the bonus which has been ordered by the Tribunal. The chart of dearness allowance shows that over the lower grades of employees, it runs at about 100% of the basic wage. There is no standard by which average overtime workings can be gauged upon this record, but perhaps a modest figure such as 10 % may safely be accepted. . The amount received as wages by an employee whose basic wage is Rs. 100 would thus actually be about Rs. 210 per month. The Tribunal has now allowed him three times the latter amount, that is Rs. 630 as bonus. In the existing arrangements, he is entitled only Rs. 200. It can at once be seen that the increase compelling reasons should have been sought and obtained.
The most compulsive of these reasons would have been an enormous increase in the profits for the distribution such an increase cannot be assumed upon conjecture, but must necessarily be ascertained by the usual methods applicable to public companies, namely, by reference to certified balance-sheets. No such balance-sheets were produced before the Tribunal. The mere fact that while pleading inability to produce the balance-sheets, the companies admitted their capacity to pay is by no means to be regarded as a sufficient ground for tripling the bonus hitherto paid. The danger of unrest from paying too much to workmen seems clearly illusory. It cannot be denied that towards any profits that these companies have been making, the labour which they employed has made a material contribution, and therefore a share In the final divisible profits, If they be large, can justly be claimed by then but unless it is shown that the profits have increased enormously, to increase their bonus to over three times what it was before seems to me to be wholly unreasonable."
11. It will be seen from the two authorities of the Supreme Court mentioned above that unless a company makes substantial profit in a particular year its employees should not be entitled to any Bonus. Accordingly, the finding of the lower Industrial Court that the fact that the company suffered a loss is no ground to refuse bonus to the workers, is unjustified as such I set aside the award on this demand and hold that the employees' Union, the respondents herein, shall not be entitled to any Bonus for the year 1961.
12. Demand No. 24-B.-This demand is as follows :- Minimum basic salary to clerical and subordinate staff should be as under :-
(i) Clerical Rs. 120 per month.
(ii) Peons and Coolies Rs. 75 per month.
(iii) Drivers Rs. 85 per month.
13. On this demand the finding of the lower Industrial Court is that according to it (R. W. 1) i.e. a witness for the appellant A. E. Industries has admitted this payment to be accepted, therefore, award in terms of the demand has been given. This finding is challenged by the learned counsel for the appellants by saying that this demand on the part of (R. W. 1) has been wrongly taken to be correct by the Industrial Court as the same witness in his re-examination has said that as regards demand No. 24, there is only acceptance of clause (a) and there is no disparity but not the pay- scales. The learned counsel. Therefore, argues that the evidence of this witness R. W. 1 should be read as a whole and not in isolated pieces as has been done by the industrial Court. I agree with his contention as it seems quite clear that R. W. 1 has not accepted this demand as mentioned in his re-examination. I would, therefore, set aside the award as given on this demand and in its place substitute my own finding which will be presently given.
14. Exhibit A/9 shows the grades of the workmen in the appellant company and their basic salaries and dearness allowance allowable to them. In this document four grades of clerical staff are mentioned. Out of these four grades the IV grade clerk gets pay in the scale of Rs. 80-6-122-8-170, whereas the other three grades get Rs. 122 starting salary and above that. Therefore, the question of revising the basic salary of the grade IV clerk is concerned only in this demand so far the clerical staff of the employees' Union is concerned. The IV grade clerk starting salary is Rs. 80 but the dearness allowance addable in this document shows that minimum dearness allowance per month has to be Rs. 60 and it varies according to scale from the first Rs. 100 to the 5th Rs. 100 as mentioned in this document so that the total emoluments of the fourth grade clerk according the appellant's counsel would be Rs. 152 per month including the dearness allowance allowable to him.
As such, according to counsel he gets more pay than is demanded in this demand for the fourth grade clerk. Likewise regarding peons and coolies the pay-scale of the peons is Rs. 30-1-45-2-65- 3-90-3-130 and that of the coolies is Rs. 20-1-40-2-60-3-90. Both these class of employees would get Rs. 60 also dearness allowance as a part of their emoluments. As such the drivers would get Rs.
120 per month as total emoluments and peons would get Rs. 90 as their total emoluments to begin with. These emolu--ments obviously are more than the amount of Rs. 75 per month asked for in this demand for the peons and coolies as argued by the learned counsel for the appellants. The learned counsel for the appellant also argued that the pay-scales of the employees' Union have been revised twice once in the year 1960 and second time in the year 1.962 as stated by R. W. 1 and also admitted by Ishtiaq (A. W. 2) the witness for the employees' Union. There--fore, on these grounds, according to him, there was no justification to increase the scales of basic pay and allowances as demanded in this particular demand. He also in support of this contention added another ground that the financial position of the appellant company was not sound and for this he relied upon the finding of the Industrial Court expressed in its published award at page 2638 wherein it observed :- "Besides the company's financial position as established on the record is far from satisfactory and it has been suffering losses during the last 15 years and they have suffered an accumulated loss of 7J lacs of rupees and even in 1965. The company suffered a loss of Rs. 1,22,257.00. The prospect for ,the year 1966 are such that the Company would again suffer 'losses."
Looking to this financial condition of the appellant-company obviously, in my opinion, there would be no justification for :increasing the pay-scales of the employees' Union as asked for by them to this demand, although in the comparative statement ,Exh. A/7, it has been shown that in other concerns also similar employees get more pay. But this by itself would not suffice to give a finding in favour of the employees' Union on this demand under consideration. I, therefore, set aside the award as passed on this demand by the Industrial Court and hold that -the basic salary to the clerical and subordinate staff as is being given to them presently is quite sufficient and need not be increased.
15. Demand No. 25.-In this demand one pair of shoes has been asked for to be provided to all subordinate staff annually. In fact the word used is "chappals".
16. The finding of the Industrial Court is that Mr. Ghulam ,(R. W. 1) on behalf of the company stated that the company supplies uniform and caps but not chappals or shoes. A. W. 2, has stated that no chappals or shoes were provided to the drivers and other subordinate staff. A. W. 4 has said that the company gave three summer uniforms and one winter uniform to the peons. The Industrial Court went on to say, in his cross---examination A. W. 5 admits that the company provides a pail .Of shoes to all the peons and this finding is, "I think this demand is quite reasonable and I award it accordingly". I tike to say that the observation of the Industrial Court that A. W. g In his cross- examination admits that the company provides a pair of shoes to all the peons, is a misstatement of facts as this witness has not admitted this position. In fact on this demand there is no other evidence on record as produced by the employees, Union with reference to other comparable concerns. Therefore, I find that there is no material on which this demand can justified and granted.
Accordingly, I set aside the award on this demand and substitute a finding that the demand will stand rejected.
17. Demand No. 26.-Under this demand it is asked that all the demands should be implemented with retrospective effect from the date they have been demanded with the exception of those expressed otherwise. The finding of the Industrial Court is:- "It is but natural that the demands allowed should be implemented with retrospective effect, i.e. From the "date of filing of the application under section 5(5) of the Ordinance in this Court."
The award on this demand has been challenged by the learned counsel for the appellant who has contended that the award on this demand is not justified and it should be from the date of the order and not from the date of the application because by adding that the demand for the past three years is to be granted to the employees' Union and this will ruin the appellant-company in its financial position. He has also argued that according to, rules 26 and 27 of the Industrial Disputes Rules, 1960 it is laid down that the award shall be deemed to have come into effect on the day it is made, as such no retrospective relief can be granted by the Industrial Court, for that matter even by this Court retrospectively. The material portions of these Rules are as follows :- "26. Procedure regarding disposal of the decision of the Court-Government shall communication the parties concerned the decision of the Court under subsection (3) of section 12, within one month of its receipt.
27. Date of award or decision.-(1) The award of the Court shall be deemed to have been made on the date on which it is published in the official Gazette under sub--section (2) of section 12.
(2) The decision of the Court shall be deemed to have been given on the date on which it is communicated to the parties under rule 26."
It will be seen from the above rules that they merely lays down the date of decision and the award of the Industrial Court for the purpose of preferring an appeal therefrom but it has no concern with reference to the question whereby the award can grant relief on demands retrospectively o not.
The general law applicable to the ordinary suits in the civil Courts is that relief can be granted to the plaintiff part from the date of institution of the suit and this rule, in my opinion, should also apply to the proceedings before the Industrial Court. Accordingly, I find that the award given on this demand by the Industrial Court is quite justified, reasonable and high as such I would not set it aside. Accordingly, this demand is maintained as ordered by the Industrial Court.
18. For the foregoing reasons this appeal is decided accordingly with the modification as mentioned above. The parties shall bear their own costs since the respondents have not contested the appeal.?"