DECISION This appeal calls in question the order of the learned Labour Court No. IV at Karachi, dismissing the petitioner's application under section 32(1-A) of the I.R.O., 1969. It has arisen in the following circumstances.
2. The petitioners, who are the Collective Bargaining Agents of the respondent establishment, presented a `Charter of Demands' to the respondents on 1-7-1987. There could not be an agreement on the demands which had been made, and ultimately the negotiations came to standstill with the result the notice of the strike came to be served on 25-8-1987.
3. There were a number of meetings before the Conciliator again without any results and a Failure Certificate was issued on 2-11-1987. It was hereafter that the petition referred to above came to be filed - before the Labour Court.
4. In the Reply Statement it was alleged that the respondent establishment at Karachi was only a Liaison Office of Mitsui & Co Ltd., employing only one watchman, three messengers, five drivers and seven employees in the clerical cadre including typists, telex operators and telephone operators etc. The number of workmen being below twenty the provisions of the Standing Orders Ordinance were not applicable. It was further stated that they were paying much better emoluments and providing more benefits to their employees than any other commercial establishment of a similar size in Karachi. It went on to say that offers and counter-offers had been made between the parties and also before the Conciliator and later on as well, but the talks failed due to the intransigence and blackmailing attitude of the petitioners. As there was no settlement between the parties it was for the petitioners to put a construction on the legitimacy of their demands.
5. The petitioners examined Abdul Razzaq, their President. The respondents had presented an affidavit of one John David, an executive incharge of the company but he was not produced for cross-examination with the result that there is no evidence led on their behalf.
6. The Labour Court found that beyond the words of Abdul Razzaq there was no material on the record to establish that the number of workmen with the respondents was twenty or above. It also found that the petitioners had failed to discharge the burden which heavily rested on them in support of their contention. It, therefore, dismissed the petition.
7. The Charter of Demands as presented by the petitioners contained the following demands:-- DEMAND NO 1. (PENSIONARY BENEFITS)
The Local Staff of the Company shall also be entitled to pensionary benefits as available to its Home Staff and to all other employees of the Company at Tokyo (Japan) which is discriminating and prejudicial to the interest of Local Staff of the Company.
DEMAND NO 2 GRATUITY PAYMENT ON GROSS SALARY The Company shall pay Gratuity to its employees at the rate of one month's gross salary drawn at the time of retirement of the employee for each year of service.
DEMAND NO. 3. (FREE MEDICAL FACILITIES TO SELF AND FAMILY Free medical care/attention, treatment and hospitalisation for the employees of the Company and their dependents shall be suitably arranged at centrally located clinics/dispensaries in consultation with the Collective Bargaining Agent.
DEMAND NO. 4. (HOUSE RENT)
The Company shall grant every employee a monthly house rent at the rate of 60% of the new salary, effective 1st July, 1987.
DEMAND NO 5. (CONVEYANCE ALLOWANCE)
The Company shall grant monthly conveyance allowance at the rate of 30% of gross salary to every employee effective 1-7-1987.
DEMAND NO. 6.
The Company shall grant every employee three months gross salary as Bonus for each year. These bonuses shall be disbursed to employees at the eve of Eid-ul-Fitr, Eid-ul-Azha before 25th December every year.
DEMAND NO 7 LOAN FACILITIES (Scooter/Motor-Cycle/House Renovation/Construction). The Company shall grant every employee Interest Free Loan of Rs. 35,000 for the purchase of Scooter/Motor-Cycle/House Renovation/Construction on completion of at least 5 years of service.
DEMAND NO. 8. (ALLOWANCE FOR WORKING AFTER 7.00 P.M Conveyance Allowance -- Rs. 50 daily Meal Charges-- Rs. 40 daily DEMAND NO. 9.
Company shall pay the following Traveling Allowance to the employees in respect of their assignments/duties out of Karachi:
(a) For a day--TRIP Rs. 300 to all employees concerned.
(i)If stay in a hotel with Company Guest, then daily allowance shall be Rs. 250 per day; (ii)If staying in a hotel is arranged then such stay shall be at a centrally located hotel, the allowance shall be Rs. 450 per day which shall include cost of food also; (iii)If stay in a private residence is arranged then Rs. 450 per day, all inclusive.
DEMAND NO. 10. (PROVIDENT FUND)
The Company shall enhance the present rate of contributing towards the Provident Fund by the Company and the employee to 15% of gross salary.
DEMAND NO. 11. (PICNIC)
The Company shall make befitting arrangements at its cost for Picnic at a selected place every year. For carrying the staff to Picnic point and their return Air-Conditioned Coach shall be hired.
DEMAND NO. 12. (ENDOWMENT POLICY)
Endowment Policy in the sum of One Lac shall be secured for every employee of the company at its cost, with, attachment policy of Accident Cover.
DEMAND NO. 13. (FREE AIR PASSAGE FOR REST)
The Company shall arrange for free journey/travel passage by air for the employee concerned and his dependents once in a year to visit any place/places in Pakistan or India at the cost of the company. The Company shall also extend all such facilities as are generally available to Home Staff for staying them in the hotel and to meet all other expenses of Boarding, Lodging and for visiting historical place/places. The employee shall also be allowed special leave for the purpose.
DEMAND NO. 14. (EXISTING LOAN FACILITIES INCREASE OF)
The present loan facilities to employees shall be increased to 18 months' gross salary of the employee concerned which shall be interest free and the amount of such additional loan shall be recovered in 36 easy instalments.
DEMAND NO. 15. (RAJ AT COMPANY'S EXPENSES)
The Company shall send at least two employees by Air every year to perform Haj-e-Baitullah. They shall also be allowed special leave of one month for this purpose. The two employees shall be selected for Haj on their individual seniority basis.
DEMAND NO. 16.
The Company shall provide a separate Lady Room for use by female employees only.
DEMAND NO. 17. (SUBSTITUTED HOLIDAYS IN LIEU OF)
The Company shall grant substituted holiday/holidays in case the festival/national holidays fall on week-end holiday.
DEMAND NO. 18 (A) EXTRA REMUNERATION FOR TELEPHONE OPERATOR).
The Company shall grant sufficient remuneration on monthly basis to the staff required to operate Telephone in absence of the Telephone Operator.
DEMAND NO. 18(B) (ENHANCEMENT OF PAYS AND ALLOWANCES OF MESSENGERS).
The Company shall grant suitable and reasonable increase in pay and allowances of the Messengers and the company shall give them a dignified designation of `Office Attendant'.
DEMAND NO 18 (C) PROMOTION)
Promotion and increase in salary shall always be accorded to the existing staff members on the seniority and efficiency basis which shall be evaluated justly which shall not be disregarded or superseded in any case.
DEMAND NO 19 (ENHANCEMENT IN SALARY)
(a)In addition to Annual Increment, the Company shall give one time flat rate increment of Rs. 600 per month to each employee from 1st July, 1987.
(b)The Company shall also pay additionally a lump sum of Rs. 5,000 as arrears to every employee to compensate him on account of non--payment of Cost of Living Allowance as dues.
(c)The Company shall always compensate for the loss on account of payment of Cost of Living Allowance audits discontinuation to the employee concerned.
(d)All the benefits granted shall be effective from 1st July, 1987 and shall be binding for a period not exceeding one year.
DEMAND NO. 20. (EXISTING FACILITIES)
All other facilities, terms and conditions of service currently in force and which are more favourable to any employee/employees provided under the law or by custom, usage or practice but not covered by this Charter of Demands, but existing/prevailing benefits, rights/facilities are available to any class of employees by custom/usage practice as existing on or before 30th June, 1987 shall always prevail and shall remain unchanged/undiminished and unaltered. All the employees shall have a right to enjoy all such right/rights and benefits without any adverse/prejudicial and detrimental effect."
8. The petitioners had described the respondents as one of the most dynamic and prestigious multi-national companies engaged in business also in Pakistan for their company. In spite of this what they were doling out to their workmen was just a pittance. However, when it came to evidence in spite of the denial of the contentions on the part of the respondents, they stopped short by examining only their President. He was content to talk about the earlier negotiations and remained supremely indifferent to tell us of the pay and the benefits of the workers in comparable concerns.
There was also nothing to establish that any profit at all had been made by the respondent company, who had asserted to be a `Liaison Office' and that they were not involved in any profit making activities in Pakistan.
9. In his affidavit Abdul Razzaq made a detailed mention of the offers which had been made by the respondents on a number of demands. The only dispute to resolve, it went on to say, was with regard to Demand No. 19 pertaining to the Salary and the Court was to confine its adjudication only to that point.
10. The respondent's case is that the respondents in the interest of peace and harmony in the establishment had made some offers and counter-offers at different stages but the petitioners had spurned those offers. The agreement which is pressed into service by the appellant namely the `Memorandum of Agreement' in December, 1988 does not bear the signature of any of the four representatives of the appellants, who were the President, the General Secretary, the Joint Secretary and the Finance Secretary of the Union respectively. Only S. Hara, the General Manager had put his signature thereon out of the four representatives of the respondents and at the bottom had mentioned as follows:-- "My signature will become effective provided that the letter of withdrawal to be submitted by the Union to the Company concerning Union's side letters, to be duly agreed by the Company. Union's side letters are the ones dated 14-6-1988 (3 letters), 16-6-1988 (3 letters), 20-6-1988 and 2-7-1988 and others if any.
(Sd.)
S. HARA."
11. A perusal of these letters shows that they were in bad taste hurling all sorts of accusations against the General Manager and also conveying the insinuation that "he has taken himself the commission of crimes which is forbidden by law" etc. Etc. Such a slanderous language bristling with insinuations as to be found in the letters which are on the record, could not go without protest. The appellants however did not pay any heed to the request for the withdrawal of these letters and remained adamant in regard to the stand taken by them. They should have realised that there was no settlement duly signed by the parties. All that had happened was that there were offers and counter-offers and even at the last stage while the proceedings were pending before the Labour Court the respondents were prepared. To finalise the agreement provided the letters were withdrawn. The offer was only a contingent offer and it had not been accepted by them. The appellants had no intention to have it formalised by compliance of the demand from the .Respondents. And if they did not choose to reach a settlement it was for them to substantiate their claim and meet the case as they were put to face.
12. Nothing of the sort was even attempted, and with the slender material on the record it cannot be said that the number of workmen working with the respondents is above twenty.
13. Otherwise too as held in the case of Pak Industrial and Mining Syndicate Limited v. Pak Industrial and Mining Syndicate Employees Union 1982 PLC 250, Hyesons Electric Company Workers Union v.
Hyesons Electric Company Limited 1984 PLC 623 and Zelin Limited, Karachi v. Zelin Limited Employees Union 1975 PLC 431 the petition merited dismissal as there was nothing on the record to show that the company had made any profits or workers in similar concerns were enjoying terms as sought by the appellants.
14. There is no merit in this appeal, I will, therefore, dismiss it.