ORDER This, is an appeal against the decision dated 10-7-1972 of the learned Chairman, Punjab Labour Court, Northern Zone, Lahore whereby the petition of Muhammad Bakhsh Malik, appellant, was dismissed on the ground that it was not proved that the right claimed by him had been guaranteed or secured to him by any law.
2. The facts of the case are that the appellant was employed as Secretary to the Area Sales Manager, Singer Sewing Machine Company, Lahore on 24-2-1968 vide appointment letter Exh. R-l. His post was transferable including Head Office at Karachi. He was confirmed on 23-8-1968 vide confirmation letter Exh. P-2. His appointment was made by the Head Office at Karachi where his service record is being kept. His salary bill is paid by the Head Office and also his leave even for one day whjch is recommended by the Area Manager, Lahore, is sanctioned by the Head Office. His working hours were fixed by the Area Manager, Lahore vide copy of the letter Exh. P-3 dated 21-3-1968 sent by the Area Manager to the Head Office at Karachi. They are to the following effect From Monday to Thursday ... 9-00 a.m. to 5-C0 p.m. (1-00 p.m. to 1-30 p.m. break) Friday ... 9-00 a.m. to 5-00 p.m, (1-00 p.m. to 2-00 p.m. break) Saturday ...
9-00 a.m. to 1-00 p.m. Exhibits P-4 to P-11 over-time claims were sent by the appellant to the Head Office, in some of which over-time was also claimed for working after 1- 00 p.m. on Saturdays. The Head Office sent letter Exh. P-12 dated 7-6-1968 alongwith pro forma Exh. P-13 to the Area Manager affirming his over-time claims. The office timing for Saturdays was fixed from 9-00 a.m. to 1-00 p.m. from 21-3-1968. That timing was never changed. His over-time claims for Saturdays were accepted up to 2-11-1968 and after that they were rejected without any office order to the contrary having been passed. The appellant agitated this matter by sending letters, copies of which are Exhs. P-16 to P-20 and finally received letter dated 31-3-1972, copy of which is Exh. P-21, informing him that his request was refused. The appellant again wrote letter dated 3-4-1972, copy of which is Exh. P-22, praying that his case be reconsidered. The appellant then sent grievance notice, the copy of which is Exh. P-23. He received a reply dated 9-5-1972, the copy of which is Exh. P-24, in which it was mentioned that his grievance was not valid and justified. The appellant, thereafter, filed a petition under section 25-A of Industrial Relations Ordinance, 1969, before the learned Labour Court in respect of right guaranteed or secured to him under section 33 of the West Pakistan Shops and Establishments Ordinance, VIU of 1969, which reads as follows:-- "Savings of certain rights and privilege.--Nothing in this Ordinance shall affect any right or privilege to which an employee is entitled on the date of the commencement of this Ordinance under any law for the time being in force* or under any award, agreement, settlement, contract, custom or usage which is in force at that date, if such right or privilege is more favourable to him than any right or privilege conferred upon him by this Ordinance." The learned counsel for the appellant contended that the respondent-Company, whether in Lahore or in Karachi is one establishment. Since Saturday is a holiday in the Head Office, there should also be holiday in Lahore. Therefore the appellant is entitled to over-time if he puts in work on Saturdays even before 1-00 p.m. The point for consideration is as to whether Singer Sewing Machine Company which has its Head Office at Karachi and shops in Lahore, Rawalpindi, is one establishment. In this connection the leamed counsel fori the appellant contended that if in their relations i.e. branches, parts, units etc.M of a company they constitute one integrated whole, the establishment is oneJ He relied on a judgment of Supreme Court of India in the case, The Associated Cement Companies Limited and another v. Their Workmen (1), wherein it was observed:-- "The Act not having prescribed any specific tests for determining "what is one establishment, in considering the question whether a cement (1) AIR 1960 SC 56 factory and the adjacent limestone quarry supplying limestone to it, are one establishment, one must fall back on such consideration as if the ordinary industrial or business sense determine the unity of an industrial establishment, having regard no doubt to the scheme and object of the Industrial Disputes Act and, other relevant provisions of the Mines Act, 19^2, or the Factories Act, 1948. It is, perhaps, impossible to lay down any one test as an absolute and invariable test for all cases. The real purpose of those tests is to find out the true relation between the parts, branches, units etc. If in their relations, they constitute one integrated whole, the establishment is one; if on the contrary they do not constitute one integrated whole, each unit is then a separate unit. How the relations between the units will be judged must depend on the facts proved, having regard to the scheme and object of the statute whicn gives the right of unemployment compensation and also prescribes a disqualification therefor. Thus, in one case the unity of ownership, management and control may be the important tests; in another case functional integrality or general unity may be important test and in still another case, the important test may be the unity of employment.
Indeed, in a large number of cases several tests may fall for consideration at the same time. The difficulty of applying these tests arises because of the complexities of modern industrial organisation; many enterprises may have functional integrality between factories which are separately owned; some may be integrated in part with units or factories having the same ownership and in part with factories or plants which are independently owned. In the midst of all these complexities it may be difficult to discover the real thread of unity. A company owned a cement factory and also a lime stone quarry which supplied limestone exclusively to the factory.
The quarry was situated near the factory. The quarry was a feeder to the factory qpd without lime stone from the quarry, the factory could not work. There was a manager of the quarry but he was under the Manager of the factory. There were thus unity of ownership, unity of management, supervision and control, unity of finance and employment, unity of labour and conditions of service of workmen, functional integrality, general unity of purpose and geographical proximity. It was contended that the factory and the quarry did not form one establishment because (i) the standing orders of both were different, () under the provisions of the Industrial Disputes Act, the appropriate authority in respect of the factory was* the State Government, whereas the appropriate authority in respect of the lime stone quarry, which was a mine as defined in the Mines Act, 1952, was the Central Government. The employees of the Cement Works had to be dealt with by the State Tribunal, while the employees of the quarries by the Central Tribunal, fin) the lime stone quarry had an office of its own and a separate attendance register, the manager of the factory was an Agent in respect of the lime stone and there was a separate Manager who was responsible for the control, management and direction of the mine under the provisions of section 17 of the Mines Act, and manager of the factory acted as the agent, that is representative of the owner, viz, the company; and this arrangement which was in consonance with the provisions of the Mines Act, 1952, made the factory and the quarry two separate establishments: , Held that (i) section 17 of the Mines Act, 1952 had no relevance to the question whether the lime stone quarry .was part of a bigger establishment. It prescribed the appointment of a Manager for purposes of the Mines Act, 1952, and did not deal with the question of one establishment within the meaning of clause iiii) of section 25-E of the Act. Thfe fact that the quarry Manager worked under the overall control and supervision of the factory Manager showed on the facts proved that the factory and the quarry were treated as one establishment; (//) the existence of two sets of Standing Orders was explained by reason of the statutory requirement of approval by different authorities--one set by the State Labour Commissioner, and the other by the relevant Central authority; v iiii) the quality of jurisdiction, dichotomy one may call it, one of the Central Government and the other of the Staje Government did not imply that for all purposes of the Act, and particularly for payment of unemployment compensation as per the provisions in Chapter VA of the Industrial Disputes Act, the factory and the quarry must be treated as separate establishments ; (iv) there was no difficulty in applying section 33 in the case. For workmen in the mine, the authonty would be the one appointed by the Central Government; for the factory, the authority would be that appointed by the State Government. This was the same argument as the arguments of two jurisdictions in another form. The lime stone quarry and the factory were not separate establishments. They constituted one establishment within the meaning of clause (iii) of section 25-E of 1he Act."
3. Now the point for determination is as to whether the test laid down in the aforementioned authority applies to the facts of the present case. In this connection the appellant who appeared as P. W. 1 stated that on 24-2-1968 he was appointed as Secretary to Area Sales Manager, Lahore vide appointment letter Exh. P-1 issued by the General Manager, Head Office at Karachi, that his post was transferable including Head Office, Karachi, that he was confirmed on 23-8-1968 vide confirmation letter Exh. P-2 issued by the Head Office, that his service record was being kept by the Head Office, that the bill for the payment of his salary was paid by the Head Office, that leave application even for one day recommended by the Area Manager, Lahore, was sanctioned by the Head Office, that stiops are uoder the direct control of the Head Office, that payment of goods sold was made to the Head Office every week, that function of the Area Manager was only to inspect the shop and verify the stock, that accounts were directly sent to the Head Office, that Exh. P-3 is, the copy of the letter sent by the Area Sales Manager to the Head Office for changing of time, that Exhs.
P-4 to P-11 are over-time claims sent by the appellant to the Head Office, and that on 7-6-1968 a letter Exh. P-12 was sent by the Head Office to the Area Sales Manager with a direction that in future over-time claims should be sent in accordance with pro forma Exh. P-13, sent alongwith the letter.
Mr. Jamil Ahmad Khan. R. W. 1 stated that they have Area Managers at Lahore and Rawalpindi besides various shops situated in different cities and towns; that the shops are controlled by the Area Manager, who is responsible to the Marketing Manager at Management Office, Karachi, that the working conditions and working hours of the Area Manager's Office are fixed and determined by the General Manager of the Company, that' the over-time is given in the over-time slips prepared by the Area Manager's Office duly recommended by him and sent to the Head Office, Karachi for necessary payment, that the Head Office scrutinizes the over-time slips calculating over-time and pays the over-time on monthly basis alongwith salary, that the salary and over- time are mentioned on the pay order, which is sent to employee by the Head Office and the employee collects the amount from the shop on the production of the said pay order, that the pay order bill signed by the employee for accepting the amount paid by the Head Office to his full satisfaction is returned to the Head Office for record, that since 1965 in the Head Office, Karachi, Saturday is a closed day, that two days in a week are observed as holidays in the Head Office, i.e. Saturday and Sunday and that the General Manager is the appointing authority of the appellant.
From the above it is clear that there is unity cf ownership, unity of finance and employment, unity of supervision and control and unity of labour and conditions of service of workmen. Applying the test laid down in the Supreme Court authority mentioned above, I come to the conclusion that Singer Sewing Machine Company is one establishment.
4. The learned counsel, therefore contended that the common practice i e. usage which was prevailing since 1965 up to the date so far Saturday being an, off day, was saved by section 33 of the West Pakistan Shops and Establishments Ordinance, VIH of 1969, and, therefore, there was no reason why a distinction was made ih the case of the appellant. The appellant was employed with effect from 24-2-1968 and it was only after 2-11- 1968 when he was refused overtime after 1-00 p.m. on Saturdays, he started agitating this'matter.
The fact that he kept quiet for a period 1962 PLC 888