' The subject-matter in this case was raised by Attock Cement Pakistan Employees Union, which was then functioning as Collective Bargaining Agent, in the Attock Cement Pakistan Limited by letter dated 17-1-1989. The substance of the allegations was that the complainant trade union had addressed a letter to the employers with the signatures of 130 workers on 23 November, 1987 requesting the Establishment that they should under the check off system deduct the subscription from the salaries of the workers named in the memo and deposit the same in Account No, 5417 in Shershah Branch of National Bank of Pakistan, Karachi under intimation to the Union. Another letter was addressed on 24-12-1987 containing a declaration of authorisation of six more members with the request that the same check off system be applied to them and the deposit be made in the same account number and same Bank. Still another letter was addressed by the Union on 29 September, 1988 under cover of which the names of more than 54 members of the union were forwarded to the Employer for check off again specifically mentioning that the amount recovered was to be deposited in Account No, 5417 of the National Bank of Pakistan in Shershah Branch, Karachi. It has been complained that the receipts on this account were not deposited by the company in the Bank Account of the Trade Union for the months of April 1988, May 1988, June 1988 and July 1988 and the petitioner thereafter addressed a letter on 31-8-1988 to the employers that they were required to comply with their request for check off under section 23 of the Industrial Relations Ordinance, 1969 and the violation thereof amounted to an offence. The petitioners addressed a letter dated 1-12-1988 to the Management and protested that the money received by check off had not been deposited in their Account for April 1988 onwards. The company by their letter dated 3-12-1988 informed them that the cheques for the deductions from April to July, 1988 had been handed over to the ex General Secretary of the Union by hand. The union addressed a letter on 7-12-1988 to the Management and asked them to expedite the deposit of union funds in.
Their Bank Account for the month of April 1988 to November 1988. The Union by letter dated 18-12- 1988 requested the Management to let them know the details of the encashment of the cheques handed over to the General Secretary and the Account number in which the said cheques were deposited. A request was also made for supplying the photo copies of the receipts of the cheques allegedly issued to the ex General Secretary by hand. The company by letter dated 29-12-1988 wrote back that photo copies were being provided. This letter was delivered on 4-1-1989 to the Joint Secretary of the union and the stand of the petitioners is that no photocopies were supplied.
The Joint Secretary in his letter dated 9-1-1989 protested that the copies had not been forwarded with their letter dated 29-12-1988 and they should now be supplied. No further information was received by the petitioners from the Company. On 11th of January, 1989 the petitioners again addressed a letter to the Management to abide by their instructions and deposit the workers' contribution in their Bank Account. On not having received any reply to this letter, the Union approached the Registrar of Industrywise Trade Union by letter dated 17-1-1989 and requested that the Management of Attock Cement Pakistan Limited be directed to deposit the amount of contribution in their Bank Account for the months of April, 1988 to December, 1988 failing which legal action be taken against them. The Deputy Registrar of the Commission vide letter dated 27- 2-1989 asked for the comments of the employer who requested for time till 7th April, 1989 as their legal Adviser was out of the country. The comments in this case were filed on 2-5-1989 wherein it was said that cross cheques for Union's subscription in respect of the months of April to July, 1988 were handed over to the General Secretary of the Union. It was stated in para. 5 of the comments that necessary details including payment vouchers bearing signatures of the then General Secretary of the Union were provided to the General Secretary of the Union by letter dated 29-12- 1988. The detailed statement of union fund deductions was attached with these parawise comments, and it appears from it that the cheques from January, 1988 to July, 1988 were handed over to Mr. Pervez, General Secretary of the Union. There were no deductions for the months of August, 1988, till November, 1988 but recovery for the months of August 1988, September 1988 and October, 1988 was made alongwith recoveries made in January 1989, February 1989 and March 1989. There is no mention of any recovery for the month of November, 1988 but the cheque for the recovery relating to December, 1988 was deposited in the Shershah Branch of National Bank of Pakistan, Karachi on 18-1-1989.
2. The learned Member dealing with the case struck issues on 28-7-1980 as to whether the Management had deposited contributions from April 1988 to December 1988 in the Account of the union. On 15-10-1990, the respondents were ordered to be dealt with ex parte because of their absence. The learned counsel for the petitioners made a statement that he will not produce evidence and the case was adjourned to 16-10-1990 on which date the application made by the respondents for setting aside the ex parte order was also dismissed. The case was fixed for announcement of orders for 13-12-1990 but no orders were announced perhaps because of the fact that the learned Member dealing with the case had then left the Commission. It came up for hearing before me on 20-10-1991 and after hearing the learned counsel for the petitioners, I reserved orders in this case.
3. Section 23 of the Industrial Relations Ordinance, 1969 reads as under:- "23. Check-off. (1) If a collective bargaining agent so requests, the employer of the workmen who are members of a trade union shall deduct from the wages of the workmen such amounts towards their subscription to the funds of the trade union as may be specified with the approval of each individual workman named in the demand statement furnished by the trade union.
(2) An employer making any deductions from the wages under subsection (1) shall, within 15 days of the end of the period for which the deductions have been made, deposit the entire amount so deducted by him in the account of the trade union on whose behalf he has made the deductions.
(2-A) A collective bargaining agent shall maintain with a branch of the National Bank of Pakistan or with a Post Office Saving Bank an account to which shall be credited the entire amount deducted by the employer under subsection (1) from the wages of the members of the trade union.
(3) The employer shall provide facilities to the collective bargaining agent for ascertaining whether deductions from the wages of its members are being made under subsection (1)".
4. On their own admission the cheques for the months of April to July, 1988 were handed over by the Company to the then General Secretary of the union by hand in clear violation of the request of the union to deposit them in Account No, 5417 in the Shershah Branch of National Bank of Pakistan, Karachi. The Union in their correspondence requested the company to supply, them with the particulars of the encashment of the said cheques. The Management claimed that they had sent the photocopies of the receipts of those cheques and other particulars to the General Secretary of the Union with their letter dated 29-12-1988 but according to the union none was supplied and in spite of the communication of this fact to the company, no details of the encashment of these cheques were supplied to the Trade Union nor were they supplied with the comments placed on the record of this Court. It could have been very easy for the respondents Company to verify from their own Bank as to whether these cheques had been deposited in the Account of the Union. The burden was on the respondent to show that the amounts of these cheques had been deposited in the account of the union, but they failed to supply this information even in the comments placed on the record of the Court. The comments were filed on 2-5-1989 but no details about the check off for the month of November, 1988 have been supplied therein. It however does appear that the amounts on account of check off for the months of August to October, 1988 were belatedly made in the months of January, February and March, 1989. There is no information about the check off in relation to the month of November, 1988. It is manifest that the respondents have acted against the mandatory provisions of section 23 of the Industrial Relations Ordinance and the instructions of the union by handing over the cheques by hand to the General Secretary of the Union and then subsequently failing to account for the disposal of these cheques by asking their Bank to supply them the information whether these cheques had been cashed and if so to which' account they had been credited. The respondents are therefore, directed to deposit the amount of check off in relation to the months of April 1988 to July 1988 and the month of November, 1988 in Account No, 5417 of Shershah Branch of National Bank of Pakistan, Karachi. If this Account number stands changed, they should seek information from the union before depositing this amount. They should also appear before the learned Member at Karachi on 16-1-1992 and show cause why they should not be dealt with for violating the specific provision of section 23 of the Industrial Relations Ordinance, 1969.