This is an appeal against the award of the First West Pakistan Industrial Court, Karachi, dated 20th December 1969. The respondents, Shafiq Metal Industries Workers' Union, made 7 demands. The Court has dealt with all the 7 demands and given its award. The appellants, Messrs Shafiq Metal Industries, have confined their appeal only to Demands Nos. 3,4, and 5. I propose to dispose of the contentions of the learned Representative for the parties in respect of each demand separately.
2. The contention of Mr. Shaukat Ali A. Nanji, the learned Representative for the appellants, properly analysed is covered by the observation of their Lordships of the Supreme Court of Pakistan in the case of Dalmia Cement Limited, Karachi (1957-58 PLC 666) The relevant portion of the observation appears at page 676. It runs as under- ---As pointed out by my Lord the Chief Justice in the Remington Rand's case an industrial Tribunal adjudicates on rights and liabilities, has most of the indicia of a Court and exercises judicial powers of the State. It is no doubt not strictly bound by the rules of evidence, but -that does not mean that it could act on mere conjecture and its own idea of social justice. In the discharge of its duty of adjudication it should act on material properly brought on record and law applicable to the matters in dispute.---
3. I now propose to dispose of Demands Nos. 3, 4 and 5, in the light of the observations reproduced above.
4: Demand No. 3, was for maintenance of Identity Cards of the workers. The admitted position is that the West Pakistan Industrial and Commercial Employment (Standing Orders). Ordinance, 1968 (hereinafter. called the Standing Orders), does not apply to Messrs Shafiq Metal Industries, as it does not employ 50 workmen. According to the Union's witness, Muhammad Younus, the industry employs from 30 to 35 persons, while according to the Management they employ only 20 to 25 persons. It is not necessary to decide as to how many people the industry employs. It is sufficient to state that the number of persons employed are not so many as to make the Standing Orders applicable to Messrs Shafiq Metal Industries. I may not be understood to lay down that where the Standing Orders do not apply the power of the Court to grant a demand is ousted. In proper cases, if a case is made out on evidence brought on the record, the Court may grant a demand, in spite of the fact that the Standing Orders do not apply. In the present case, there is nothing on the record to show as to why the Management be compelled to maintain the Identity Cards for the workers.
The Union has produced only one witness, namely, Muhammad Younus. He has not deposed anything, whatsoever, on Demand No. 3. Demand No. 3, reads as under:-- ---That Identity Cards be provided to every employee showing his date of appointment, wages and designation---.
No law has been pointed out to me that where the Standing Orders do not apply the Management is bound to maintain Identity Cards for its workers. In the absence of any evidence as to why the Management should be called upon to maintain the Identity Cards, it is not possible to maintain the award in respect of this Demand. It is, therefore, set aside.
6. The relevant portion of Demand No. 4, reads as under:-- "That all new employees be confirmed after three months and the practice of discharging new hands just before completion of three months' continuous service be given up."
7. The relevant finding of the learned Industrial Court, on this demand, reads as under:- "The industry has been purchased as a running concern by the Proprietor Mr. Ismail.. The employer must therefore conform to the normal procedure in such cases, namely, that the employees working with them for six months or more should be considered to be confirmed after completion of six months continuous and unbroken service."
8. A permanent workman is defined under Standing Order 1 (b) of the Standing Orders. It reads as under:- "A permanent workman' is a workman who has been engaged on work of permanent nature likely to last more than nine months and has satisfactorily completed a probationery period of three months in the same or another occupation in the industrial or commercial establishment, including breaks due to sickness, accident, leave, lock-out, strike (not being an illegal lock-out or strike) or involuntary closure of the establishment."
9. The short point is as to whether there is anything in the evidence so as to hold that the essentials of the definition re--produced above have been violated. Muhammad Younus, on this demand stated as under:- "Maximum number ever employed is from 30 to 35. I have been working for eleven years but I do not know whether I was confirmed or not. There are about 20 people who have been working since 1965 and who have not been removed. They have all been receiving their annual increments. In 1965, I was paid Rs. 3.75 per day and now I get Rs. 5.75 per day."
10. This is the only evidence on Demand No. 4, on behalf of the Union. The analysis of the above evidence would establish that all those persons, who are working with Messrs. Shafiq Metal Industries, had been made permanent in due course of time as they are receiving their annual increments. There is not a word to disclose that any person, who was engaged for more than 9- months after completing probationary period of 3 months, has not been made permanent. I have already observed that Standing Order do not technically apply to Messrs Shafiq Metal Industries, as it employs less than 50 workers. However, even if the Standing Orders are made applicable to the case of the appellant-Industries, the respondents have failed to establish that the Management has not fulfilled the ingredients of the definition of "permanent workman". I would, therefore, set aside the award in respect of Demand No. 4.
11. Demand No. 5, relates to Annual Leave, Festival Leave, Sick Leave and Casual Leave. The learned Curt observed as under:- The increase of the number of the paid holidays to the workers is opposed on the financial position of the respondents.
We have heard the parties and we order that bearing is mind the nature of the work that the workers should be allowed annual earned leave for 15 (fifteen) days, festival holidays for 13 (thirteen) days, 5 (five) days sick leave and 5 (five) days casual leave with pay, the sick leave with pay being subject to a certificate of the Medical Officer of the dispensary which attends to the medical needs of workers."
12. The learned Representative for the appellants does not object to the demand for 13 days festival holidays, as he sub--mits that the Management has been granting the same to the workers.- He objects to the increase in the number of days of the Annual Holidays from 10 to 15 days and the Sick and Casual Leave with pay. It would be useful, while considering the contention of the learned Representative for the appellants, to refer to the evidence led by the Union on this demand.
Statement of Muhammad Younus on Demand No. 5, reads as under:-- "We get 13 festival holidays. We were also paid besides, ten days annual leave. We do not get pay for days on which we were on sick leave."
13. It is clear from the statement of Muhammad Younus that he has not disclosed any reason as to why the Annual Leave should be increased from 10 days to 15 days. He has not cited any comparable industry in which more than 10 days' Annual Leave is granted. Under section 49-B of the Factories Act,' 193-1, which is applicable to the case of the respondent-Union, only 10 days'
Annual Leave is permissible to a workman. In the present case, there is no evidence, whatsoever, to make out a case for increase in the Annual-Leave from 10 days to 15 days.
14. So far as Casual Leave and Sick Leave is concerned, the admitted position is that the same is granted by the Management, but without pay. The question is as to whether the demand is justified that Casual Leave and Sick Leave should be granted with pay. Under Standing Order 9, a workman may be granted Casual Leave of absence with pay not exceeding 10 days in the aggregate for one calendar year. It is true that the provisions of Standing Orders technically are not applicable to Messrs Shafiq Metal Industries. The Standing Order, however, is based on social justice. If the Management does grant Casual Leave, I do not see any reason to deviate from the principle laid down in Standing Order 9. The Court has confined the Casual Leave to 5 days only. I would maintain the demand in respect of Casual Leave to the extent of 5 days with pay.
15. The next question is as to the Sick Leave with pay. The Management does admit that Sick Leave is granted, but without pay. It will be very unfair to a workman to grant Sick Leave but without pay.
The learned Representative for the appellants very strenuously contended that if Sick Leave is permitted with pay, the workmen would always like to avail of it and the Management will very materially suffer. There is no force in this contention. There is no reason to attribute dishonesty to the workers that they would like to avail Sick Leave or Casual Leave without any reason or on false pretext. The learned Court has, however, made a safeguard in favour of the shah. Management by making it incumbent on the worker to produces a Medical Certificate. I would hold that it would be unfair that if a workman is granted Sick Leave, he should not be entitled to the pay. The demand in this respect is entertained. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.