DECISION ' This is an appeal against the 'award' of learned Presiding Officer, Sindh Labour Court No, IV at Karachi, dated 9-9-1990 on an application filed under section 32(1-A) by the appellants against the establishment of respondents.
2. I have heard Mr. Raja Shamsuzzaman, learned Advocate for the appellant-Union and Mr. S.S. Jahangir, learned counsel for the respondent establishment and have also gone through the record and proceedings of the case.
3. The respondent establishment is admittedly engaged in business of hotel and restaurant and the appellant-Union is a `C.B.A.' Union of the workers working in the respondent establishment. The C.B.A. Union and the respondent establishment had been concluding settlements from time to time with the respondents for revision/improvement of conditions of employment of the workmen employed by the respondents who are said to be about 250 in number. After the expiry of the last settlement the appellant-Union vide notice, dated 27-3-1988 raised 'industrial dispute' consisting of various demands'. After the bilateral negotiations between the parties had failed the appellant- Union gave dispute notice to the respondents under section 26(3) of I.R.O., 1969, whereupon 'Conciliator' started 'Conciliation proceedings' but those also failed. Consequently the appellant- Union made an application under section 32(1-A) of I.R.O., 1969 to the learned Labour Court for the adjudication of the dispute. This application was resisted by the respondent establishment on the ground that they had suffered continuous financial losses due to stiff competition from its competitors such as Hotel Jabees, Hotel Plaza, Faran Hotel etc. Apart from the large number of hotels and marriage halls which have crept up. The respondent establishment also pleaded bad business on account of increase in the rates of taxes, charges of gas and electricity etc. And therefore, opposed all the demands of the appellant-Union.
4. The appellants had examined in their support Mr. Abdul Zubaid, General Secretary of the Union and Mr. Manzar Hussain, General Secretary of Hotel Jabees Employees Union, whereas the respondent establishment examined Mr. Syed Altaf Sajjad, their Asssistant General Manager and also Mr. Muhammad Ashraf Issani, their ex-employee who had signed the written statement.
5. The learned Labour Court rejected practically all the demands of the appellants mainly on the ground that the appellants had not been able to prove that the respondent establishment were financially in good position to meat with their demands. Thus the learned Labour Court had shifted the burden of proof upon the appellants to prove that the respondents were in good financial position to meet with the demands. The learned Labour Court has mainly relied upon the decision of this Tribunal in the case of Workers Union v. Hyesons Electric Company Ltd. 1984 PLC 623. In that case this Tribunal had held that the "burden of proof was upon the trade union raising demands to establish that (1) comparable concerns had made similar payments and benefits and (2) that employer establishment also had capacity to pay". This Tribunal upheld rejection of demands by Labour Court when demands were made merely upon surmises and conjectures that cost of living had substantially increased, without adducing evidence to establish that cost of living had increased and comparable concerns were paying some amounts as demanded and establishment had financial capacity to pay'. It may be pointed out that in that case the respondent establistment had apart from their employees, examined Mr. Shabbir Gangat, Chartered Accountant who had certified the balance-sheet, which was produced and further deposed that according to 'Audit Report' the respondent company had suffered losses during the years 1979 and 1980. It may be pointed that the industrial dispute in that case was raised in January, 1981.
6. The question as to what is the financial position of the respondent establishment and whether it is running into losses or profits would be specially within the knowledge of the establishment and not in the knowledge of the workers or their union. Under Article 122 of the `Qanun-e-Shahadar which is equivalent to section 106 of the repealed 'Evidence Act' when any fact is specially within the knowledge of any person burden of proof is upon him". In Principles and Digest of the `Qanun- e-Shahadat' by Mr. Justice Khalil-ur.Rehman Khan wherein 'commentary' was adopted from Mr. Justice Munir's Principles and Digest on the Law of Evidence, in the 'commentary' to Article 122 at page 1548, the learned author has observed: "A person has special means of knowing the true and proper produce of the lands in his actual possession and therefore the onus of proving it is on him. Though the onus of proving what profits might, with due deligence, have been received in any year lies upon the party claiming mesne profits; the onus of proving what profits the person in wrongful possession actually received lies upon the person in possession. In a Nagpur case, however, it has been held that it is for the person out of possession to prove what profits the man in possession of his property made out of it, and that it is only when some evidence proving prima facie that the profits were somewhere about the sum alleged is given by the plaintiff, that the burden of proving that they were less shifts to the shoulders of the defendant. Similarly it has been held by the Patna High Court that, in a suit for arrears of produce rent the onus of proving as to what was the produce during the period in suit is on the plaintiff landlord. A Division Bench of the Calcutta High Court has held that the burden of proof in such cases would depend on the nature of the claim made by the plaintiff. If he limits his claim to the actual profits which the defendant is said to have received, the defendant having actual knowledge of the profits received by him, the burden would lie on him to prove the actual profits made by him."
From the above commentary which is based on the decisions of the Superior Courts it will be seen that the burden of proof, with regard to profits, is always A upon the party who is in possession of the business or land as it would be within its special knowledge.
7. In the instant case there is only oral word of Mr. Abdul Zubaid, General Secretary of the appellant- Union who has denied the suggestion in the cross-examination that business of hotel was not flourishing. He has also admitted that at the relevant time he was not employee of the respondent as he had been dismissed by the respondents against which he had filed grievance petition but he was admittedly General Secretary of the Union when the Industrial Dispute was raised and application under section 32(1-A) was filed. The respondents have filed affidavit-in-evidence of witness Syed Altaf Sajjad, Assistant General Manager who stated that the respondents were sustaining heavy losses. He has not produced any 'balance-sheet' or 'audit-report'; in support of the contention of the respondent that they had suffered losses. No `auditor' has been examined by the respondents to show that they suffered losses or that their financial position was not good.
Under the circumstances the demands of the appellants cannot be summarily rejected merely on the ground that they have not been able to prove that the respondents were in good financial position to meet with their demands. The facts of instant case in this respect are distinguishable from the facts of the case of Hyesons Electric Company relied upon by the learned Labour Court, as in that case the auditor reports and balance-sheets for years 1979 and 1980 were produced and auditor was also examined. The yery fact that the respondents were still running the establishment would raise the presumption that they were earning profits as otherwise they would have closed the establishment. As for the quantum of profits earned by them as pointed above it will be within the special knowledge of the respondents.
8. However, the second principle laid down in the case of Hyesons Electric Company Ltd. The trade union had to establish that comparable concerns were making similar payments and benefits would be applicable to the instant case. This Tribunal had taken similar view in the case of Staff Union v. Lahore Commercial Bank, Karachi 1975 PLC 128, wherein this Tribunal held that the demand had been rightly rejected when Union of Workers produced no evidence of comparable concerns allowing certain concession to workers involving financial burden on the employer.
9. It may be pointed that the appellant had examined Mr. Manzar Hussain, General Secretary of Hotel Jabees Employees Union. He stated that `Hotel Mehran' is superior to 'Hotel Jabees' as it has better location and earning more profits than Hotel Jabees. He has produced photostat copy of the `settlement' arrived at between the management of Hotel Jabees and the C.BA. Union of the said establishment as Annexure 'A'. This settlement was reached on 3-10-1988 with regard to 'Charter of Demands' of 'Employees Union', dated 3-1-1988. The respondent witness has not stated in his affidavitin-evidence that the respondent are inferior concern of earning less profit than Hotel Jabees. Even such question was not suggested to witness Manzar Hussain, who has denied in the cross-examination, that it was incorrect to suggest that Hotel Jabees was not running in losses at the time of signing of the settlement. No evidence as to what other comparable concerns in the area were paying to their 'workers has been produced by the respondents who in their reply statement have named Hotel Jabees as competitor. Under the circumstances this Settlement between the Employees Union and the Management of Hotel Jabees would be helpful in determining the demands of the appellants.
10. It may be relevant to reproduce terms of settlement arrived at between C.B.A. Union of the Employees of Jabees Hotel and the establishment of Hotel Jabees which are as under:- "(1) It is mutually agreed that the management will pay a sum of Rs,90 per month from 1-1-1988 to all the permanent workers who had a minimum of 3 months service as on 31-12-1987 and are still in employment at the time of signing of this settlement, as increment in wages.
(2) It is further agreed that the maximum of the scale of pay will be enhanced by a sum of Rs,90 so as to cover this increase in wages within the various pay scales.
(3) It is further agreed that this increase in wages will be adjusted/set off against any increase in wages/allowances, if allowed by the Government during the period of this settlement.
(4) The management has also agreed to pay bonus for the year ending 31st December, 1987 equivalent to 55 days wages, to be paid by 15-10-1988, this amount will be deemed as cx gratia in lieu of bonus and inclusive of 10-C of Standing Orders and will be paid on pro rata basis to workers having more than three months service as on 31-12-1987, and arc still in employment at the time of signing of this settlement.
(5) As a gesture of goodwill the management has further agreed to pay bonus for the accounting years ending 31-12-1988, -12-1989 and 31-12-1990 equivalent to 55 days wages on the same basis as in clause 4, above, to be paid by 15th of Ramazan every year.
(6) The management has further agreed that the minimum annual increment of a worker will not be less than Rs,15.
(7) The management has further agreed to supply a new pair of shoes to each worker during July- August each year free of charge."
11. It may also be pointed out that apart from this settlement of Hotel Jabees no other evidence has been produced in support of the demands to show that after the last agreement there has been increase in the cost of living or in the cost of each item of demand. No such question has been even put to the witness of the respondent. Therefore, the only piece of evidence available with the Court was the settlement of Hotel Jabees for determining the reasonableness or otherwise of the demand of the appellant. No doubt as pointed out above the presumption would be that the respondent was earning some profits and would be in a position to pay such benefits as are being paid by comparable concern but in case where the demands of worker exceed the benefits awarded by comparable concern to its workers the burden of proof would be upon the Workers Union to show that the establishment have earned extraordinary profits or had earned more profits than comparable concern. There is no such evidence produced by the appellant.
12. Now I proceed to consider each demand of the appellants. Demand No,1 ' Under this demand the appellant had demanded for construction of a `mosque' in the establishment, appointment of 'Pesh Imam', carpeting of the mosque and the provisions of 'caps' etc. For the purpose of 'prayer'. It appears that under clause 6 of the previous settlement between the parties, one big room of hotel' was reserved for purpose of mosque which was to be fully carpeted. The appellants' witness Abdul Zubaid had denied in the cross-examination that the room in the hotel had been reserved for said purpose in terms of previous settlement. However, in view of the fact that demand with regard to mosques had already been settled in the last agreement, this demand is allowed to the extent that a big fully carpeted room in the hotel be reserved for the purpose of 'prayer' in terms of the previous agreement, if it has not been done so far. The provision of caps would also not involve any much financial burden and is reasonable demand which is also accepted. With regard to the appointment of Tesh Imam' it is not necessary to have regular Tesh Imam'. Any Muslim, including employee of the respondents, can act as 'Pesh Imam'. Demand of Tesh Imam' will also involve unnecessary financial burden and is, therefore, rejected.
Demand No,2 The appellant-Union had demanded that 'every year four workers be sent to perform 'Hai at the expenses of the respondent and that those workers he paid full wages during the period of Haj. The settlement between employees union and the Hotel Jabees relied upon by the appellants does not provide for any such benefits to the workman. Besides, Haj is a religious duty cast upon every Muslim who can afford to perform Haj. The employer cannot be forced, c even on religious grounds, to send its workers to Haj on its own expenses. The demand has rightly been rejected by the learned Labour Court.
Demand No,3 ' The appellant union had demanded 'separate Cafeteria' of the capacity of 70 persons/workers for eating there with good furniture and crockery, and `Sehri' and 'Mari' be also given to them during the month of `Ramazan'. Admittedly in pursuance of the previous agreement well-furnished `Cafeteria' is provided for free food to the employees. The Hotel is primarily meant for serving food to its customers and it would be unjust to ask them to provide huge Cafeteria for the capacity of seventy persons for the workers only. Under the circumstances the facility provided to the workers under the previous agreement is ordered to continue and demand for huge cafeteria for seventy workers at a time has rightly been rejected by the learned Labour Court. No such facility is provided by Hotel Jabees under the Settlement.
Demand No, 4 The appellant union demand 'increase of Rs,500 per month with a minimum salary of Rs,1,000 and the workers should be given detailed salary slip every month. The learned Labour Court accepted the demand that the workers should be given detailed salary slip every month and no objection has been filed by the respondent against that award. The agreement of Hotel Jabees shows that salary was increased by Rs,90 per month from 1-1-1988 and maximum salary was also increased by a sum of Rs,90. In the absence of any evidence to show that the respondents are earning more profits than the Hotel Jabees the increase in salary is allowed to the extent of Rs,100 per month as has been done in the case of employees of Hotel Jabees. The maximum salary of various scales also be increased by a sum of Rs,100 so as to cover this increase salary in various pay scales. The request for increase of Rs,500 looks unjustified and no evidence has been produced except settlement of Hotel Jabees to justify demand of such increase in the salary. This demand is disposed of accordingly.
Demand No,5 ' The appellant union had demanded three bonuses every year i,e, two for both the 'Eids' and one on the occasion of 'Easter'. Admittedly the respondent are paying bonus as provided for under Standing Order 10-C. The payment of bonus is co-related with the quantum of profit earned by the management. Extra bonus can be allowed only when evidence shows that the respondent establishment has earned extraordinary profit. The burden of proof in such case would be upon the Union to show that the respondent have earned extraordinary or huge profit. In the case of Babul Islam Printing Press, Karachi v. Workers Union this Tribunal held 'that the entitlement of bonus of workers depends upon profits and where there was no evidence of such profit bonus could not be claimed.' Similar view was taken by this Tribunal in the I cases reported in 1975 PLC 84 and 1978 PLC
406. This demand, therefore, was F rightly rejected by the learned Labour Court.
Demand No,6 The appellant union had demanded Rs, 200 per annum increment for each worker which appears to be rather/fantastic. Under the Settlement of Hotel Jabees it was provided that minimum annual increment of workers should not be less than Rs,15. In the absence of any other evidence with regard to the quantum of the profits earned by the respondent establishment and the increase in the cost of living this is the only evidence with regard to this demand. The demand is therefore allowed to the extent that minimum annual increment of workers would not be less than Rs,20.
Demand No,7 Applicant union demanded 'House Rent' at the rate of 70% of monthly salary. There is no evidence to show that House Rent at the rate of 70% monthly salary is being paid by any comparable concern to its employee/workers or that the rent has increased to that extent. As such this demand has rightly been rejected by learned Labour Court.
Demand No, 8 Applicant union demanded shift allowance at the rate of Rs,150 per month and Rs,200 for night shift for each of the workers. This demand is also not supported by any evidence and as such has rightly been rejected by the learned Labour Court.
Demand No,9 ' Demand No,9 consists of two demands. Firstly the applicant union demanded that each worker should be paid attendance allowance of Rs,150 per month. In absence of any evidence on the lines mentioned above this demand has rightly been rejected by the learned Labour Court. The second part of this demand relates to the grant of Casual Leave and Sick Leave as provided under the law.
The labour Court has relied upon 1983 PLC 532 and held that demand relating to enforcement of right of worker conferred by law cannot be subject-matter of Industrial Dispute. The definition of Industrial Dispute under section 2(xiii) supports this view of learned Labour Court as it excludes the dispute in respect of enforcement of any right guaranteed or secured to worker by or under any law, other than this Ordinance, or any award or settlement for the time being in force. The demand has rightly been rejected by the learned Labour Court.
Demand No:10 The applicant union's demand for allowance of Rs,300 per month for Cashier/worker has also been rejected by the learned Labour Court for non-production of proper evidence by the applicant union.
Demand No,11 Applicant's demand for introduction of Provident Fund Scheme was opposed by the respondent on the ground that they were already paying gratuity to the workers at the rate of 20 days a year. The applicants have failed to produce any evidence in support of the demand as such it was rightly rejected by the learned Labour Court.
' Demands Nos, 12, 14, 17, 19, 20, 21, 23, 25, 27, 28, 31, 34, 35, 37, 38, 39 and 41.
' In the foregoing paras this Tribunal has laid down the standard of proof required to be adduced in support of demands. Keeping in view this standard of evidence, the Demands Nos, 12, 14, 17, 19, 20, 21, 23, 25, 27, 28, 31, 34, 35, 37, 38, 39 and 41 have rightly been rejected by the learned Labour Court.
Demand No,13 Applicant union has demanded for the introduction of Workers' Participation Scheme. There is no evidence to show that if any such Scheme is introduced by any comparable concern or the profits earned by the respondents justify the introduction of such Scheme. There is also no evidence to show as to whether the respondent is a Company as defined under the Scheme under Companies Profits (West Pakistan) Workers Participation Act, 1968. If it is a Company coming within the scope of said Act right of workers is guaranteed by the said Act and cannot be subject-matter of Industrial Dispute for which the applicant has to approach competent Authority under the said Act.
The demand has rightly been rejected by the learned Labour Court.
Demands Nos, 15 and 16 These demands have been rejected by the learned Labour Court as the benefits are already available to the workers under the Old-Age Benefits Scheme and Social Security Scheme. I see no reason to disagree.
Demand No, 18 The applicant union has demanded 'First Aid' Box in every Department and keeping of 'ambulance' for the workers and also permission to submit 'Medical Certificate' by any 'Private Doctor'. The keeping of 'First Aid' Box in every Department would not involve much expenses. It is a fair demand and is therefore accepted. With regard to permission to submit Medical Certificate for any Private Doctor the demand would be fair unless the workers are covered under the Social Security Ordinance under which Ordinance they are entitled to be treated by the Doctors appointed by Social Security Organization and require production of the certificate of such doctor. This demand is disposed of accordingly. Keeping of the 'ambulance' involves expenditure. To me it appears that in big Organizations should be kept by the establishment to meet with any emergency. However, it involves quite lot of expenditure. There is no evidence to show that respondents do earn enough profit to meet with such expenditure or that any other comparable concern keeps such ambulance. For want of sufficient evidence I am unable to accept this Demand. However, I would suggest that Government may make suitable amendment in relevant law making it obligatory for big establishment employing more than 200 workmen to keep such ambulance.
Demand No, 22 Applicant union demanded 'festival holidays' on full pay Sand also payment of salary on the day preceding such holidays. Respondent claim that they are already allowing such holidays to the workers but show their inability to arrange salary of the workers on the day preceding such holiday.
This demand does not involve any financial implication. It should not be impossible for the respondents to arrange salary of the workers on the day preceding such holidays, therefore, this demand is just and is accepted.
Demand No, 24 Applicant union demands one month's full wages on the day before the religious day which may be recovered from the workers in instalments. This demand does not involve any additional financial burden, but would enable the workers to enjoy `religious/festival'. As there arc two `Eids' in a year, the advance pay to them on Eids can be recovered each in five equal instalments from the salary of the workers for the remaining ten months of the year. This ,demand is, therefore, allowed accordingly.
Demand No, 26 Applicant union demands fifty per cant discount on all meals, drinks and confectionary purchased by the workers with permission to take his guest in the hotel restaurant. There is no evidence to show that if any such concession is allowed in any comparable concern. Under Demand No, 3, the workers are already provided with free food. Therefore this , demand is rejected.
Demands Nos, 29 and 32 These demands have been accepted by the learned Labour Court and no appeal has been filed against said order as such 1 need not discuss these two demands.
Demand No, 30 ' The applicant union has demanded two pairs of shoes and two pairs of uniforms each year for every worker. The Settlement of Hotel Jabees shows that the said hotel has to supply new pair of shoes to each worker each year in July-August free of charge. As such this demand is partly accepted to the I extent, that the respondent would supply one pair of uniform and one pair of S shoes to every worker free of charge in July-August each year.
Demand No, 33 ' Applicant union has demanded a separate room for changing clothes with attached bath in every department and also a separate steel locker for every worker. There is no evidence to show how many departments are in the hotel. If a separate room is provided in every department, it will curtail availability of the rooms in the hotel which they could give to their customers. However, the demand of the workers cannot be ipso facto rejected as unjustified. There is justification of at least provision of one room for change of clothes for the workers and for as many steel lockers as the number of workers employed in each shift. Such lockers should be made available to the workers in each subsequent shift for their use or could be used jointly to two or three workers depending on numbers of shifts. This would not involve any extraordinay expenditure that the respondents could not bear but it will ensure the safety of the clothes and articles of the workmen. This demand is accepted to the above extent.
Demand No, 36 ' Applicant union had demanded Eid Milan Party and Milad Party to be held in `Kanwal Restaurant' of the respondents on expenses of the respondents in respect of food and decoration also. There is no evidence of any such concession by any comparable concern. However, under the provision of settlement admittedly the Milad Party could be held in `Mehran View' and so also Eid Milan with 'dinner' free of cost to the workers. The concession under the previous agreement to continue. This demand is disposed of accordingly.
Demand No, 40 The applicant's union demand that absence of the workers during curfew or emergency should be treated as leave with pay and that the workers who cannot return to their homes during that period should be provided food and lodging free of cost and the respondents should also arrange for their transport. There is no evidence of any such concession in any comparable concern. However, it is admitted that absence due to curfew and emergency is being treated as 'leave without pay'. If the demand of workers for 'pay' is accepted then even those workers who could come, would not come. However, with regard of workers who could not go back to their homes during curfew, the respondent should provide them with reasonable lodging accommodation free of cost and with food free of cost. The demand is partly accepted to the above extent.
Demand No, 42 ' This demand has become infructuous as no fresh demand has been raised during the negotiations.
Demand No, 43 ' The applicant union demanded that the tenure of the agreement, should be for one year and the facilities already given to the workers by the agreement or otherwise shall remain in force. The period of agreement has been specified in the agreement and under section 40 of I.R.O. That agreement, however, would stand superseded after this award.
13. The appeal stands disposed of by this Award as per decisions under each demand. This 'Award' in this appeal shall be effective from 26-3-1990 upto 15-6-1992.