DECISION This appeal calls in question the Award given by the Third Sindh Labour Court at Karachi on an application filed by the present appellant under section 32(1-A) of the -I.R.O. It arose in the following circumstances.
2. On 13-1-1987 the applicant had served a demand notice under section 26(1) of the I.R.O. On the General Secretary and the President of the C.BA. Alongwith the Charter of Demands. Later it was followed by a Notice of Lock Out under section 26(3) read with section 28 of the I.R.O. Conciliation proceedings having failed, the applicant presented the application before the Labour Court. The demands were as follows:-- Demand No. 1-- Leaves (a)Annual leaves should be 15 days instead of 21 days with pay as at present.
(b)There should be no marriage leave with pay.
(c)Sick leave with pay should be strictly in accordance with law. There should be no accumulation of sick leaves.
Demand No. 2 -- Annual Increment Annual increment should not be claimed as of right. It should be open to the management to give increment on the basis of individual performance of each employee.
Demand No. 3 -- Provident Fund and Gratuity Provident fund and gratuity should not be given simultaneously and a worker who is a member of provident fund shall not be entitled to gratuity and similarly a worker opting for gratuity shall not be entitled to be a member of provident fund scheme.
Demand No. 4 -- Absence during working hours .
An employee staying away from work beyond the rest interval without prior written approval will be treated as absent and liable to disciplinary action apart from deduction of his wages.
Demand No. 5 -- Wage Meritorium In view of the fact that the wages in the company compare favourably with others, there should be no increase in salary/wages for the next four years.
Demand No. 6 -- Duration It is demanded that the settlement if any be for a period of three years commencing from the date of the signing of the settlement. In case of no settlement, it is demanded that the award to be given by the Court be for. Minimum period of three years.
3. The application was vigorously resisted. Inter alia it was stated that the application was liable to be dismissed on the short ground that an Industrial Dispute at the instance of the respondents was pending between the parties before the Labour Court. Otherwise too the demand as set out did not constitute an industrial dispute.
4. Yoichi Tamura, the Assistant General Manager of the appellants appeared as a witness on behalf of the appellants while Muhammad Younus, a Driver of the appellants, who was the Joint Secretary appeared on behalf of the respondents.
5. The Labour Court found that the application as presented was not maintainable as the person signing the same had not been examined and otherwise too it was barred under section 47(1) of the I.R.O. It was further found that all the demands raised were devoid of any merit.
6. The point was not pressed. Before me but was take in the written statement and also during the arguments before the Labour Court that as the person signing the application had not been examined but altogether a different person had take his place, there will be no evidence left on the record from the side of the respondent. Support was sought from the case of Mst. Khair-un-Nisa and six others v. Muhammad Ishaq and two others (PLD 1972 SC 25).
7. I have already held in an earlier decision that the ratio therein, cannot be extended to Labour cases too rigidly. Otherwise too an Assistant General manager as in the instant case, who is at the helm of the company's affairs, is competent to testify on behalf of the Corporation, if the application had been signed by somebody who is not available.
8. Admittedly the petition under appeal had been filed by the appellant while an Industrial Dispute raised by the respondents under section 32(1-A) was already pending adjudication. The contention, therefore, was that looking to the language of section 44, I.R.O. The notices under sections 26(1) and 26(3) could not be served by the appellants. Section 44 of the I.R.O. Reads as under:-- "44.Prohibition on service notice of strike or lock-out while proceedings pending.---No notice of strike or lock-out shall be served by any person to an industrial dispute while any conciliation proceedings or proceedings before an arbitrator or a Labour Court or an appeal to the Tribunal under subsection (3) of section 38 are or is pending in respect of any matter constituting such industrial dispute:"
Then comes section 47 of the I.R.O. According to which conditions of service are to remain unchanged while proceedings are pending. It reads as under:-- "47.Conditions of service to remain unchanged while proceedings pending ---(1) No employer shall, while any conciliation proceedings or proceedings before an Arbitrator, a Labour Court or Tribunal in respect of an industrial dispute are pending, alter to the disadvantage of any workman concerned in such dispute, the conditions of service applicable to him before the commencement of the conciliation proceedings or of the proceedings before the Arbitrator, the Labour Court or Tribunal, as the case may be, nor shall he--- (a)save with the permission of the conciliator, while any conciliation proceedings are pending, or (b)save with the permission of the Arbitrator, the Labour Court or Tribunal, while any proceedings before the Arbitrator, Labour Court or Tribunal are pending, discharge, dismiss or otherwise punish any workman except for misconduct not connected with such dispute.
(2)notwithstanding anything contained in subsection (1) an officer of a registered trade union shall not, during the pendency of any proceedings referred to in subsection (1) be discharged, dismissed or otherwise punished for misconduct, except with the previous permission of the Labour Court."
9. Citations were made by Mr. Abdul Majeed and Mr. Mahmood Abdul Ghani but looking to the text of the law and the clash in the demands between the appellants and the respondents and the rights acquired by the latter earlier, I am of the opinion that the petition as held by the Labour Court would not be maintainable.
10. However, it will be in the fitness of things to cursorily examine the validity of the demands raised: Demand No. 1-- Leaves On the showing of the appellants themselves these advantages are already available with the respondents. It is not their case that such facilities are not available at comparable concerns.
Actually there is nothing except the word of the solitary witness Yoichi Tamura on behalf of the appellant. The grant of prayer, under the circumstances, will hardly be justified.
Demand No. 2 -- Annual Increment There is a well-entrenched practice by now that the workmen are given increments annually and if not annually, then by means of settlements between the parties which is normally reached in two years. There is no pick and choose therein. The prayer as couched leaves the matter of increment totally on sweet-will and pleasure of the employer, has hardly anything to command. We have not been told of any other establishment following this system. It has been very properly rejected by the Labour Court.
Demand No. 3 -- Provident Fund and Gratuity It is true that if a Corporation or a Company has arrangements for provident fund scheme then it is not incumbent on it to make provision for gratuity also. However, if the same is being done, it is neither against public policy nor in defiance of law which needs to be undone. It appears that the appellants have given benefits of both the schemes to the workmen. They are not the only one in the field that way. The demand as raised is devoid of all merits and has been properly rejected.
Demand No. 4 -- Absence during working hours The demand puts a workman to double jeopardy. It has only to be rejected as was done by the Labour Court.
Demand No. 5 -- Wage meritorium Looking to the stagflation which is rampant and also there being not an iota of evidence that the wages being paid by the appellant are unmatched by any company, it is simply atrocious and hardly needs any serious consideration.
Demand No. 6 -- Duration Even the last demand is rather capricious and no reason worth while in support thereof has been furnished.
11. There is no merit in this appeal and as a result it stands dismissed.