DECISION This is an application made by the Union under section 50 of the I. R.O, for the interpretation of term No. 1(A) of the Settlement which reads as under :-- Term No. 1-A Clause 1 :-- "Union's demands No. 1-A and No. 7 were considered together and it was agreed that all permanent workmen drawing salary up to Rs. 800 per month will be granted Rs. 45 per month as wage increase effective from 1-1-1974. The salary does not include statutory Cost of Living Allowance of Rs. 35 per month**. Clause 2:-- "Provided that the aforesaid increase shall be adjusted against any increase towards Cost of Living increase that is allowed - and/or granted hereafter by the Federal and/or Provincial Government by any enactment or otherwise, if such adjustment is permissible under that law."
2. The necessity of the interpretation of the clause has arisen on account of the promulgation of the Cost of Living Allowance Ordinance of 1974 providing Rs. 50, or ten per cent, of the pay whichever is greater as cost of living allowance. It has been further provided by the aforesaid Ordinance that any benefit intended as a relief towards the cost of living is granted prior to the promulgation of the Ordinance it would be liable to be adjusted. Pakistan Labour (5asbs 3. IiiIt has been contended on behalf of the Union that the increase in the salary granted by the aforesaid terms of the settlement could not be adjusted against the cost of living allowance allowed by the Ordinance. Since the Management did not agree to this contention the present application was made.
4. I have heard the learned counsel for the Union and I am of the view that there is no force in the contention raised on behalf of the Union in view of Clause 2 of the aforesaid Settlement which clearly provides that the increase granted by Clause I of the Settlement would be liable to be adjusted against any increase towards the cost of living allowed by any enactment or otherwise if such an adjustment was peimissible under law. I have already indicated that the Ordinance allows such an adjustment. Consequently reading both the clauses together it is plain enough that the increase in salary was intended as a relief towards the cost of living and, therefore, it is liable to adjustment. Tne Union cannot be permitted to resile from the Settlement which is in force and binding upon both the parties.
5. The application is rejected. M975 PLC 772 [Labour Appellate Tribunal Sind] Present : Ghulain Rasool Sheikh, Appellate Tribunal Messrs METRO GARMENT INDUSTRIES, KARACHI versus WORKERS' UNION (Regd.) , decided on 29th August 1975.
(a)Industrial Relations Ordinance (XXIlI of 1969)-- ---- S. 32 and S. 2(xiii) [as amended by Industrial Relations (Amendment) Ordinance (XIX of 1974) ]--Industrial dispute--Amendment of definition of "industrial dispute" made by Industrial Relations (Amendment) Ordinance, 1972--Prospective and not retrospective--Prior to such amendment workers could avail of any one remedy i.e. either an application under S. 34 or by raising industrial dispute under S. 32-- Enforcement of right guaranteed by operative settlement, held, could be made subject-matter of industrial dispute under S. 32. [pp. 773, 11A]A & Employees* Union v. Monoo Motors PLD 1975 Kar. 811 rel. (b)Industrial Relations Ordinance (XXIlI of 1969)-- ---- S. 34--Application under section--Scope--Terms already settled-- Pre-existing rights--Can be enforced under S. 34-Controversy regarding a right but not with regard to implementation of an existing settled right, held, would amount to determination as to very existence of such right--Such controversy, held, beyond scope of S. 34--Ruling in Muhammad Aqil v. Chairman Sind Labour Appellate Tribunal 1974 PLC 194, held, be read in this context, [p. 774]C 1974^^^194^ Af!1 V Chairman> Sind Labour Appellate Tribunal and another Hashmat Ali Khan Warsi for Appellant. S. P. Lodhi for Respondent. Date of hearing j 22nd August 1975.
197577$ Decision This is an appeal against the award passed by the Labour Court under section 37(3) of the Industrial Relations Ordinance.
2. The Respondent Union raised an industrial dispute by serving the Charter of Demands and subsequently a strike notice. Conciliation Proceedings failed and, therefore, an application under section 32 of I.R.O, was made to the Labour Court for the adjudication and determination of the following demands :-- Demand No. 1 :-- Compensation for the loss in wages caused to the Bodymen, Collermen and Pressmen during the last six months by not providing full work during duty hours keeping workers idle for hours together during the days. ; Demand No. 2 :--No material should be sent from the factory to the Pakistan Garments or other factory but all the processes of the materials from start to the end be conducted in the factory. r The appellant resisted the application on the ground that the demands raised by the Union did not amount to an industrial dispute within the meaning of I. R.O. It was further stated that demand No. 1 was already settled as > per settlement dated 26-11-1972 and, therefore, could not be re-agitated. It was also pleaded that according to the previous settlement no financial* demand could be raised for a period of 2 years.
3. The Labour Court on the assessment of the material brought on record accepted both the demands and rejected the contention of the appellant that the demands did not constitute industrial dispute and could not be raised. Aggrieved by. this the present appeal had been filed.
4. It has been urged on behalf of the appellant that since demand No. 1 was included in the previous settlement it could not be raised again as an industrial dispute. There is no force in this contention. The definition of the term "Industrial Dispute* as it existed at the time when the application under section 32 of the I.R.O, was made did not impose any such bar. It is only after the amendment of the definition by Ordinance No. XIX of 1974 issued on 10-10-1974 and published on 12-10-1974 that the enforcement of any right guaranteed or secured to a workman by or under any law other than I.R.O, or any award or lettlement for the time being in force was excluded from the definition. It is, therefore, plain enough that prior to the amendment the workers had two-fold remedies; either they could make an application under section 34 of the I.R.O, or raise an Industrial Dispute. In this view I am supported by the decision of the High Court of Sind and Baluchistan in the case of Employees* Union v. Monoo Motors (1) The decision of my learned predecessor to the contrary was set aside. In that case the claim was covered by the Company's Profit Scheme. A similar plea was taken and was over-ruled.
5. On the other band the learned counsel for the appellant referred to certain authorities which were also relied upon by my learned predecessor in the aforesaid decision and in spite of that the High Court over-ruled the objection. Apart from this, in my view the principle laid down by those authorities has been mis-understood. What had been laid down is that the subject-matter of the award could not be raised as an industrial dispute during (1) PLD 1975 Kar. 811 the period the award or settlement was to remain in operation. What is meant by this is that a dispute which has already been settled cannot be re-agitated but in the present case the dispute has not been raised with regard to what had been settled but dispute had been raised with regard to its non-implementation and, therefore, those authorities are not applicable.
6. So far as the second demand is concerned there can be no manner of doubt that it is an industrial dispute. This is not covered by the previous settlement.
7. Although I have supported the view of the Labour Court that both the demands constitute an Industrial Dispute but this does not really conclude the matter as it is clear from the award of the Labour Court that no reasons were given as to the non-implementation of demand No. 1 and the allegations made in demand No. 2. The learned Labour Court ought to have given definite findings supported by proper reasons as to whether the allegations made by the Union were correct and after having done so suitable remedy should have been ordered. Since this has not been done the case requires to be remanded.
8. In the result I agree with the Labour Court that both the demands constitute an industrial dispute and remand the case to the Labour Court for disposal on merits as indicated in the preceding paragraphs of this Order.
9. Before I depart with this case I would like to point out that some mis-understanding prevails with regard to some observations made in the case of Muhammad Aqil v. Chairman Sind Labour Appellate Tribunal and another^ 1). Substance of the observation is that from the language of section 34 of I.R.O, it appears that the Labour Court could not determine or adjudicate upon the rights of the parties but it merely provided for enforcement of preexisting rights. This observation has been taken to exclude all the applications which are made under section 34 for the implementation of any right guaranteed or secured by or under any taw or award or settlement. So if a term has already been settled it is a pre-existing right and can be enforced under section 34 of I R.O. but if any controversy, not with regard to the implementation of the terms of settlement but with regard to the existence of the very right arises then the application under sectioa 34 cannot be maintained. It is in this context that the observation should be taken to have been made. If the view which is generally supposed to be prevailing in the Labour Courts is accepted it will render the provision of section 43 nugatory and the workmen shall be denied their right to have the implementation of the terms of settlement or award by availing of the speedy remedy provided by section 34 of I.R.O. (1) 1974PLC 194