1. AWARD "A. (1) Observance of a Fool Proof Procedure for application and grant of any kind of leave.
(2) l2 Days Annual leave and l2 days casual/sick leave pretended to be allowed with pay to the Workmen be given to the workmen with retrospective effect. (3) 10 days festival holidays with pay be allowed to the Workmen who are pretendedly called and termed contract labour. B. Marking of Return on Attendance Cards 'Return' and payment of Lay off benefits to such Workmen who are returned after their coming on duty for any reason and not marking them Absent. C. (1) The so- called Workmen engaged by terming them Contract Labour under so-called Contractor, Abdul Hameed, who is in fact Foreman of the Works, should be treated as Works' employees for all intents and purppses. Tney should also be paid@Rs. 140 per month or Rs. 5.39 per day. (2) Arrears be paid to such Workmen for the past short payment of Rs. 00.79 per day. D. Workman Mushtaq Ahmad, Foreman, an active member of Union discharged from service as a measure of victimisation for not acting in the hand of the Employers to crush the Union when being re-organised and for not turning the remaining Workmen in the fold of so-called contract labour system, be re-instated with the benefit of continuity in service and wage for the period of forced unemployment." Subsequenly, Demand No. 'D' was withdrawn as it was stated that the case of Mushtaq Ahmad had been settled by the respondents outside the Court. Following is the claim of justification with respect to each demand:-- "A. (1) Observance of Fool/Proof Procedure for application and grant of any kind of leave. It is submitted that the respondents never accept any leave application from Workers.
2. Neither any receipt is given nor grant or rejection slip is issued. The workers are always marked absent for any leave. This is done with a view to deprive the workmen of the benefit of right of Annual, Casual and Sick Leave. The law provides procedure but the respondents having upper hand deviate from the same. (2) Grant of l2 days annual and l2 days casual/sick leave with pay to the workmen with retrospective effect. It is submitted that the respondents have shown on the Notice Board that they allow l2 days annual leave with pay and l2 days casual/sick leave with pay each year to the workers but it is an undeniable fact that no workman out of the strength of 200 are allowed these leaves and remains the pious hope of the workmen. Since the respondents had not allowed these leaves they are entitled to the same for the past. (3) 10 days festival holidays with pay be allowed to the workmen who are pretendedly considered as contract labour. It is submitted that the respondents since last about one year are engaging workmen and giving them to understood that they are under an employer Abdul Hameed, Foreman of the respondents pretending that he is the contractor and that the contract labour has no rights and benefits under the laws. There are about I0O such workmen. This is sheer exploitation and deprivation of the legal benefits of employment of large number of workmen. B. Payment of Lay off Benefits. It is submitted that in order to escape from the liability of payment of Lay off Benefits, the respondents do not leave any trace of Returning Workers after their coming on duty for any reason as no lay off or Return is being marked on the Attendance Cards or Muster Rolls and instead "Absent" is marked which means no wages. C. (1) and (2) So-called Contract Labour. It is submitted that as explained herein before, about 50% of the total strength of workers in the respondents Factory are engaged as contract labour. An employer Abdul Hameed who is a Foreman of the respondents is shown as the Contractor. Such workmen are not considered even the workmen of the Factory. They are paid at on daily rate of Rs. 4.60 per day whether they are unskilled, semi-skilled or skilled workmen. This wage is short by Rs. 00.79 per day of the minimum wage for an unskilled worker under the law and its flagrant violation which is going on in the broaddaylight. The workmen are entitled to the minimum wages of Rs. 5.39 per day and with retrospective effect." > The respondents, in their reply statement, have pleaded that Nazir Ahmad, the General Secretary of the applicant-Union, who has instituted this application, being a Foreman, is not competent to move the application because he is not a workman within the definition contained in section 2 of the Industrial Relations Ordinance, 1969. With respect to the demands, the case of the respondents generally is that these are not guaranteed and secured under any law. Their reply with respect to eaeh demand is as follows i-- "A. (1) That there is a faulty method resorted to by the workers who first obtain leave and then at leisure sometime apply for accepting their leave either with pay or without. Management is ready and willing to acknowledge receipt of all leave applications provided they are tendered and sanctioned before leave is availed, ln case worker avails leave first and later on applies for the same, he has to explain to the satisfaction of the Management his conduct and reason for not applying earlier. A. (2) It is denied the respondents have shown on the Notice Board l2 days annual leave and l2 days casual/sick leave as permissible to workmen. Annual leave is governed under section 49-B of the Factories Act, 1934, and is 10 days with pay in a year. Casual leave is regulated by Standing Orders and is discretionary. Hence cannot be claimed with pay as of right. A. (3) There are no contract labour as such but petty independent contractors themselves. They are not covered by any definition of the term 'workman* either under the I. R. O., 1969 or any other labour legislation. Mr. Abdul Hameed, Foreman, has not engaged these contractors nor supervises or controls their working. Mr. Hameed, Foreman, supervises and controls working of our paid employees. Moreover, such contractors are also members of the Union. B. The nature of work in the glass factory on the semi-automatic process is such that it requires team work. If one or two of the members of this team is absent or does not attend for duty, then the other members voluntarily and of their own will refuse to work and this return of their part cannot be treated as lay-off by the employer. C. (1) & (2) It is denied Mr. Abdul Hameed, Foreman is shown as a contractor but is a Foreman and our employee and like Nazir Ahmad Butt and Mushtaq is performing duties purely of supervisory nature. The so-called 'labour* recruited through contractor, are actually independent contractors and are not workmen. They are not paid on daily rate as alleged but are paid on contract rates mutually agreed upon earlier. Rest of the workers except these petty contractors are daily rated employees and are treated as such as our employees. They are paid in accordance'with the provisions of the West Pakistan Minimum Wages for Unskilled Workers Ordinance, 1969. Even the demand as worded is vague and unspecific.** During the proceedings, the applicant-Union examined Mushtaq Ahmad, Nazir Ahmad the General Secretary, Anwar Zaman, Ghulam Ahmad, Rasool Bakhsh and Zulfiqar Hussain. They Lave reiterated the averments made in the application. Nazir Ahmad has also produced some documents, including his letter, dated 3rd February 1971, protesting that he had been designated as Supervisor when in fact he was a Foreman, and the letter 6th January 1971, containing the grievances of the workers submitted to the respondents. The respondents filed the affidavit of their partner Fahimuddin. The order sheet shows that the affidavits of the witnesses of the applicant-Union were filed, on 16th June, 1971, and of the respondents on 5th July 1971. Thereafter, the matter was being adjourned for the cross- examination of the witnesses of both Mazdoor Union v. Khokkar Glass Works (Shaffi Muhammad R.
3. Akhund, Chairman) parties, sometimes at the joint request of the parties because there were talks of compromise, and sometimes at the request of the respondents. However, when the matter finally came for the cross-examination of the witnesses on 27th June 1972, the witness of the respondents was absent and the respondent representative requested for adjournment for the cross-examination of the applicant's witnesses. But, since the case had become very old and no sufficient reason was disclosed either for the absence of the respondent's witness or for any further adjournment, their request was disallowed and the side of the respondents was closed. Thus, the affidavits of witnesses of the applicant-Union stand unchallenged, and there is no evidence in rebuttal. However, as the result of a subsequent application by the respondents, they were allowed to file the written arguments. The oral arguments of the learned Representatives of the parties were also heard. The respondents have challenged the maintainability of the application on the ground that Nazir Ahmad, the General Secretary of the Union, does not come within the definition of a workman, and hence he is not competent to move the application. In the reply statement he is described as Foreman, whereas in the written arguments of the respondents he is said to be a Supervisor. However whatever may be the correct designation of Nazir Ahmad, the question is not relevant in the context of this application, because it is not the individual case of Nazir Ahmad that is to be determined here. The application is for the adjudication of the demands of all the Workers of the respondent concern and Nazir Ahmad being admittedly the General Secretary of the applicant-Union, is the proper person to institute the application. Therefore, having found that the application is maintainable, I proceed to adjudicate each demand as follows:-- A. (1) Under this demand, the applicant's complaint that the respondents never accept any leave application from the workers, nor do they give grant or rejection slips, and the workers are always marked absent for any leave. The respondents have blamed the workers for not adopting the proper procedure for leave. Now, a clear and elaborate procedure for applying for leave, the grant or rejection thereof, and record to be maintained for the purpose, is laid down in Standing Order 8(2) of the Standing Orders Ordinance, 1968 Therefore, the respondents and the workers shall follow this procedure strictly. ln the evidence of the applicant's witnesses it has been disclosed that no holiday books are ever supplied to the workers. Therefore, the respondents shall supply the holiday books to each worker. (2) The applicants' witnesses have stated that they or any other worker have never been granted any kind of leave, though the respondent have put up on the Notice Board that they are giving 10 days annual leave, 7 days casual leave and 7 days sick leave, with pay. Under section 49- B of the Factories Act, 1934, every worker who has completed twelve months continuous service is entitled to 10 days annual holidays with pay in a year. Similarly, under Standing Order 9, a workman is entitled to casual leave, which includes sick leave, for an aggregate period not exceeding 10 days, in a year with pay. The applicants have demanded l2 days leave on each count. But, they cannot get more leave than the limit prescribed by law. Therefore, every worker shall be allowed 10 days casual/sick leavel in a year, and in addition each worker who has completed one yeaip service shall be given 10 days annual leave in a year, both with pay.| The workers shall be entitled to both kinds of leave with effect from lst January 1972. (3) The evidence of applicants' witness shows that out of 200 workers employed by the respondents, about I0O have been converted as so-called contract-labour, but in fact they are the full-fledged employees of the respondents. The applicants have demanded 10 days festival holidays for them, as are allowed to the other workers of the respondents. The respondents admit that 10 days festival holidays are allowed to their workers.
4. They have, however, denied that there is any contract labour engaged by them, but each one is a contractor himself and hence not covered by the definition of workman. The learned Representative for the respondents has, however, failed to point out how such employee is excluded from the definition of workman. He appears to be as much an employee of the respondents as any other worker. Under the terms of Standing Order 20, the employer is liable for the proper and faithful observance of the Standing Orders, whether or not the workmen of his establishment are employed through contractors. Standing Order 8 provides that, in addition to the holidays provided in the Factories Act, 1934, the workers shall be allowed holidays in accordance with law, contract, custom and usage. Therefore, since some of the workers of the respondent concern are given 10 days festival holidays with pay, I see no reason why the rest of the workers should be deprived of this benefit. Consequently, all the workers of the respondent concern shall be given 10 days festival holidays with pay, whether they are engaged through contractors or they are themselves 'petty contractors' as the respondents choose to call them. B. As regards this demand, the terms of Standing Order 11(3) are very clear. If the workers are laid off by the respondents on account of the reasons stated in the said subsection, the workers will certainly be entitled to lay off benefits. But, if any workman chooses to remain absent on his own, as pleaded by the respondents, he cannot claim these dues. C (1) and (2). Under these demands, the applicants have prayed for payment of wages to the so-called 'contract labour* in accordance with law, and with retrospective effect. According to the respondent, such workers are paid at the contract rates mutually agreed upon and in fact, earn more than the minimum wages prescribed under the law.
5. However, whatever may be the position, these workers are no doubt entitled to Minimum Wages of Rs. 140 per month i.e. Rs. 5.39 per day, as provided by the Minimum Wages Ordinance, 1961, and shall not be paid less in any case. As regards the payment of arrears with retrospective effect, the applicants have not stated as to from what date the payment is claimed. Besides, the affidavit of Nazir Ahmad 1975 Employees' Union v. Corning Glass (Pak.) Ltd. 469 (Shqffl Muhammad R. Akhund, Chairman) shows that the respondents have started payment of wages at the prescribed rates since the service of summons of this application. Consequently, no order need be made regarding this part of the demand. The Award is made in the terms stated above.