DECISION This is an appeal against an award of the learned Presiding Officer of Sind Labour Court No. V. Karachi, dated July 17, 1973, whereby the learned Labour Court came to the conclusion that the appellant-company employed more than twenty persons and, therefore, the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Standing Orders Ordinance), were applicable. In the second place, the learned Labour Court directed the appellant-company to pay Profit Bonus under Standing Order 10-C of the Standing Orders Ordinance, to the workers.
2. Mr. Fakhruddin Farooqi, the learned Representative for the appellant, has challenged the conclusions arrived at by the learned Labour Court. He contended, in the first place, that the provisions of the Standing Orders Ordinance did not apply to the appellant-company, as they employed less than twenty persons. Mr. Ghulam Raza, the General Secretary of the Union, produced a list of workers employed by the appellant-company, which is marked 'I', alongwith his affidavit. The list contains the names of 27 workmen. Mr. M. A.
Hasnain, General Manager for Pakistan of the appellant-company filed his own affidavit in reply to the affidavit filed by Mr. Ghulam Raza. In Paragraph 2 of his affidavit, Mr. Hasnain deposed that the company in the preceding l2 months did not employ twenty workmen, so as to attract the provisions of the Standing Orders Ordinance. He filed alongwith his affidavit the Salary Bills for Karachi Staff and that of Lahore Staff. It may be noted at this stage that Mr. Hasnain did not make out a case in his affidavit that the three workmen employed at Lahore cannot be included in the Staff of Karachi. In other words, he did not allege that the three workmen employed at Lahore belonged to separate establishment. Mr. Hasnain deposed in his affidavit that five of the workmen mentioned in Annexure 'I' i.e. Nos. 23 to 27, were not their employees, but that of Messrs Gillanders Arbuthnot & Company. The case of tre Company was that they were paying Rs. 500 per month to Messrs Gillanders & Company for rendering certain services to the appellant-company. The appellant-company did not employ these five persons. They were in the employment of Messrs Gillanders & Company. Mr. Hasnain further stated that Mr. Amanullah was a Field Inspector, drawing a salary of Rs. 1,100 per month, who was responsible for increasing the production There is much force in the contention of Mr. Farooqi that the persons employed by Messrs Gillanders & Company cannot be said to be persons employed by the appellant-company. The relevant provision which requires consideration is section l(4)(a) of the Standing Orders Ordinance. It runs as under :-- "(4) It applies to-- (a) every industrial establishment or commercial establishment wherein twenty or more workmen are employed, directly or through any other persons whether on behalf of himself or any other persons or were so employed on any day during the preceding twelve months ;** 3. On the evidence that has been led, I am unable to hold that these five persons were employed by the company through Messis Gillanders & Company. In this connection, reference may also be made to the definition of "workman", which means, "any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical
(work) for hire or reward." These five persons cannot be said to have been employed by the company for hire or reward. They were employed by Messrs Gillanders & Compaoy, who were paying their wages. It was Messrs Gillanders & Company, which was responsible to render certain services to the appellant-company. They could have sent any sweeper, any tea-man, out-door peon, despatcher or cashier to render the particular service, which they were called upon to perform for the company. These persons cannot claim to be the workmen of the appellant- company, so as to be entitled to any benefit under the Standing Orders Ordinance. I would hold that these five persons are not the workmen of the company. There now remain 22 persons. It is contended by Mr. Farooqi, the learned Representative for the appellant, that Mr. Amanullah cannot be said to be a workman and that Mr. Qasim was not an employee of the appellant-company. As in the present case, I can avoid to give any finding as regards the status of Mr. Amanullah and Mr. Qasim, I refrain to do so as these two persons have not been examined by the appellant- company. A finding in respect of their status might prejudice their case in future. Even if I hold that these two persons are not workmen, there still remain twenty persons who are workmen, so as to attract the provisions of the Standing Orders Ordinance. I am of the view that the three persons, who are admittedly, workmen, as would appear from Paragraph 1, of the affidavit of Mr. Hasnain, in the absence of any specific allegation that the establishment of Lahore was a separate establishment. I would hold, as alleged by Mr. Ghulam Raza, that these three persons belonged to one establishment, i e. The London Assurance, Karachi. It is noteworthy that the company did not specifically allege in its reply statement that the company employed less than twenty persons. All that was said in the preliminary Legal Objections was that the size of the company was such that it did not attract the provisions of the Standing Orders Ordinance. This was to my mind not sufficient to make the provision of the Standing Orders Ordinance inapplicable. The company should have specifically given the number of its employees so as to make the provisions of the Standing Orders Ordinance inapplicable. I would hold that the provisions of the Standing Orders Ordinance apply to the appellant- company.
4. The next question for consideration is as to whether the workers are entitled to bonus under the provisions of Standing Order 10-C of the Standing Orders Ordinance. It was contended by Mr. Farooqi, the learned Representative for the appellant, that the company having already paid bonus in accordance with Paragraph 4, of the settlement arrived at between the parties on 5th March 1973, the question of Profit Bonus Payable under Standing Order 10-C of the Standing Orders Ordinance, does not arise. Under Paragraph 4 of the settlement bonus at the rate of two mouths' salary was payable to each member of the permanent staff, who had completed one year's service on 31st December. Where a confirmed member of the staff had not completed one year's service on 31st December the bonus would be paid on pro rata basis effective from the date of his joining the service. Tne short question is as to whether, under Clause
(4) of Standing Order 10-C of the Standing Orders Ordinance, the Management was still required to make any payment of profit bonus, as required under Standing Order 10-C of the Standing Orders Ordinance. Clause (4) of Standing Order 10-C of the Standing Orders Ordinance runs as under :-- "Nothing in this section shall be deemed to affect the right of any workman to receive any bonus other than that payable under clause (1) to which he may be entitled in accordance with the terms of his employment or any usage or any settlement or an award of a Labour Court established under the Industrial Relations Ordinance, 1969 (XXIlI of 1969)." At this stage I may observe that the Union has failed to make out a case of usage. To make out a case of usage it must be established that it' is ancient and uniform. It would appear from the evidence on the record,1 that the bonus that the company used to pay to the workers of the UnionjJ was not uniform. Under the settlement dated 16th July 1970, between the' parties, which is on the record of the case, the company was to pay one month's salary only as bonus to each member of permanent staff. Therefore, the Union cannot be said to be entitled to bonus under usage. They can claim bonus only under the settlement of 5th March 1973. The contention of Mr. Farooqi is that the company had already paid Profit Bonus and, therefore, the company is absolved from paying any other bonus to the workers of the Union under Standing Order 10-C of the Standing Orders Ordinance There is no force in this contention. All that Clause (4) of Standing Order 10-C of the Standing Orders Ordinance lays down is that the right of the workmen to receive is not affected by the mere fact that he had received bonus under Standing Order 10-C of the Standing Orders Ordinance, if he is so entitled under any settlement. There is no provision under the said settlement of 1973 that if the workmen are granted any Profit Bonus under any provision of law in future, the provisions of the settlement in respect of bonus would not be applicable. I would hold that the workmen of the company are entitled to bonus permissible under Standing Order 10-C of the Standing Orders Ordinance, together with their bonus allowed under the Settlement of 1973.
6. In the result, the award of the learned Labour Court is maintained. The appeal is dismissed.