DECISION These are two cross-appeals filed by the parties. Simplex Rubber Manufacturing Employees' Union raised an Industral. Dispute making 23 demands which were not accepted by the Managemeint Conciliation Proceedings failed and Failure Certificate was issued. The strike was prohibited by the Government. The matter was referred to the Labour Court under section 32(i) of the Industrial Relations Ordinance, 1969. The Labour Court after recording the evidence gave the Award. Some demands were accepted in their entirety, some were accepted with modification and some were rejected. Aggrieved by the demand which had been accepted the Management filed the appeal. So far as the Union is concerned their appeal relates to the grievance that although re- instatement of the Workers was ordered but the back benefits were not allowed.
2. At the outset of the arguments I asked the learned counsel appearing on behalf of the Management as to whether he was pressing the appeal against all the demands allowed by the Labour Court or confining himself to some of them. He made a statement that he pressed the appeal against the decision with regard to demands Nos. 1, 2 and 23 and did not propose to and contest the findings relating to the remaining demands. Demands Nos. 1 23 relate to the re-instatement of the dismissed Workers while Demand No. 2 relates to bonus which was awarded for the years 1967-68 and 1968-69. 3.
Taking up Demands Nos. 1 and 23 the finding of the Labour Court was based on three grounds viz.
(1) that the inquiry was conducted on the verbal instructions which was not warranted by law (2) that the Enquiry Officer was not examined and (3) that the approval of the Employer was not sought in case of dismissal. 1 must say that the basis of the findings of the l abour Court on these grounds cannot be supported for the simple reason that no such ground was pleaded by the Union either in the industrial dispute or in the affidavits which have been filed by the various workers who had been dismissed. The case has to be tried and decided on the basis of the pleadings. No new case can be allowed to be set up either during the course of evidence or at the time of arguments.
Indeed the law relating to pleadings may not strictly be adhered to but the facts which are to be relied upon must be indicated so as to allow the other party an opportunity to rebut the allegations'* which may be made. The allegations which form the basis of demands were qui e different and no finding by the Labour Court was given. This essential for the disposal of the demands. Since this has not been done the only course open to me is to remand the case for disposal of the demands on the basis of the allegations made by the Workers in the statement of demands and the affidavits which had been filed in support of those demands. If it is considered necessary the Labour Court may allow an opportunity to the parties to lead further evidence, if so demanded.
4. Before I take up the demand with regard to bonus I would like to dispose of another objection taken by the learned counsel for the Management relating to the re-instatement of the Workers. It was urged by him that no Industrial Dispute could be raised for re-instatement as this was an individual grievance and could be agitated under section 34 of the I. R. O. I find no force in this contention. There were two alternatives for the re dressi of the grievance. Either the Workers could take their grievance to a Labour!- Court under section 34 of the I. R. O., as has been contended, or the Unionp could take up their cause by raising an Industrial Dispute. This point is very* well settled and I need not quote any authority. I, therefore, overrule the objection.
5. As regards the demand for bonus the Union had claimed the bonus for the years 1967-68 and 1968-69 at the rate of two months but the Labour Court allowed it at the rate of one month's wages. It is an admitted position that the factory started working in the year 1968. According to the learned counsel for the Management the factory started functioning in May 1968 and the financial year of the Company is from lst of October to the 30th of September. Consequently there were hardly five months during which the factory worked in the year 1967-68. The sale for that year amounted to less than Rupees two lacs. In my opinion when a Company is at the initial stage there cannot be much profit so as to award any bonus, ln the year 1968-69, the production raised up to more than twenty lacs. Although the balance-sheet which was filed showed a loss for that year but the Labour Court observed that the balance-sheet appeared to have been manipulated. I see no reason to disagree with this finding, so the Award of Bonus for the year 1968-69 was rightly allowed by the Labour Court and I confirm it.
6. Since the appeal against the remaining demands was not pressed, the Award of Labour Court with regard to those demands also stands confirmed.
7. In the light of the above findings both the cross-appeals are disposed of. Demands Nos. 1 and 23 are remanded to the Labour Court for disposal as indicated.