MUHAMMAD FAZLE GHANI KHAN, J.-The declaration of bonus for the year ending December 1965 by the appellant at the rate of 2--months' pay resulted in a labour unrest and mob agitation by its workers. The appellant-Company proposed to take disciplinary action against eleven persons alleged to be responsible for trouble making but on the intervention of the Director of Labour this matter was dropped and conciliation proceedings were commenced on the 15th of June 1965 which ultimately ended in failure and a certificate to this effect was granted by the Conciliation Officer on the 5th of July 1965. The respondent Union did not file its application before Industrial Court in the beginning and continued its campaign against the Company and restrained the workers not to draw their bonus. The continued struggle and agitation of the Union, demanding 3 months' pay as bonus, compelled the appellant to file an application under section 5(5) of the Industrial Disputes Ordi--nance, 1959 (hereinafter called the Ordinance) which was registered by the Industrial Court (hereinafter referred to as the Court) as Industrial Dispute No. 41 of 1965. The application was accompanied by a petition under section 10(1) (a) of the Ordinance for a declaration that the dispute raised by the respondent was frivolous and vexatious and should be thrown out summarily. After sometimes, but before this petition could be decided, the respondent Union also filed its application under-section 5(5) of the Ordinance on the basis of the same Failure Certificate. The Union's application was registered as Industrial Dispute No. 45 of 1965. In this dispute also the appellant --Company moved another petition under section 10(1)(a) of the Ordinance and once again reiterated its request for the declaration .Of the dispute as frivolous and vexatious. Both the petitions under-section 10(I)(a) were disposed of by the Court on 14th of January 1966 which were published as an interim award in the Gazette of Pakistan (Extraordinary) dated 16th February 1966. The, Court rejected both the applications and decided to proceed with the dispute for adjudication on merits. Hence this appeal under section 12(5) of the Ordinance.
2. During the proceedings before the Court the company had raised two preliminary objections. In the first place, it was objected that the demand for the reinstate--ment of 11 workers who had been suspended by the company did not constitute an industrial dispute. Secondly, that in view of a long term settlement made between the company and its workers on the 24th of September 1962 the Union was precluded from raising its demand of increase in bonus as it had given an undertaking not to raise or pursue any demands which may involve financial commitments/expenditure direct or indirect on the part of the company. On the first contention that this was not an Industrial Dispute, the Court held that the demands related to the employment or non-employment of some of the workmen and conditions of their work and as such it was an industrial dispute within the meaning of the Ordinance. On the second objection the Court came to the conclusion that the agreement did not preclude the Union or its workers from raising demands which involved financial commitments/expenditure in future. The Court concluded that it was possible that at anytime during the existence of the agreement if the company were to illegally or wrongfully dismiss a worker or withdraw certain benefits then the workers will not be competent to question the legality of the company's action before the Court if it was held -that the agreement was binding for all such eventualities and this interpretation if accepted will defeat the very object of the law of the industrial disputes. It was further held that in the present case the workers were getting bonus previously at the rate of three months of their pay before the settlement. It could not foresee that the bonus will be reduced in future neither it could anticipate that while giving its undertaking to the company it would never be able to demand the restoration of previous rate of bonus or re- instatement of wrongfully dismissed workmen. With these observations the Court rejected both the applications of the appellant-Company under section 10(1)(a) of the Ordinance and refused to dismiss the dispute summarily. This has given rise to the present appeal before this Court.
3. Mr. Mansur Alam, the learned counsel for the appellant --Company, reiterated his objections before us and vehemently argued that the Court was not justified to hold that the demand for the re-instatement of the workers was not vexatious as the workmen had only been suspended from service during the pendency of enquiry against them, therefore, the dispute was premature and as such should be dismissed summarily under section 10(1)(a) of the Ordinance. He further contended that the deed of settlement dated 24th of September 1962, debarred the respondent Union to raise the demand of bonus for more than what the company had already declared as it involved financial commitments on the part of the appellant and the respondent had given an undertaking that it will not raise any such dispute during the period covered by the agreement. The appellant had given its workers a benefit of about Rs. 8,00,000.00--and it was extraordinary on its part to expect from its workers to maintain industrial peace at the premises during the period covered by the agreement.
4. In order to appreciate the contention of the learned counsel; it will be useful to reproduce here the relevant terms of the agreement of the 24th of September 1962. These read as under:- "That this agreement shall come into force w.e.f. 24th September 1962 and shall continue to remain in force until the 23rd September 1966 and, therefore, indefinitely unless terminated by either party upon giving to the other two months' notice in writing after the 23rd of September 1966
(a) In consideration of the Union entering into and abiding by this agreement for the period herein above stated.
(b) Accepting the terms of the agreement in full and final settlement of all demands and disputes in existence up to the time of agreement and/or pending before the Industrial Court.
(c) Undertaking not to raise or pursue during the operation of this settlement any demand involving financial commitments/ expenditure, direct or indirect, on the part of the Company, and not to raise any demand for the period prior to the execution of this agreement, the company shall give the following benefits to the workmen, concerned:-
(1) Pay scales etc. And a long list of benefits . . . . . Enumerated, in the agreement."
It is stated that the company has involved itself in financial commitment of rupees eight lacs while granting those benefits to, the workers and they should be restrained from raising a demand of 3 months' bonus now.
5. In order to decide the question whether the terms of the agreement mentioned above debar the Union from bringing this dispute before Court, it will be necessary to examine and analyse the present dispute which is the subject-matter of controversy whether it relates to the matters covered by the agreement or involves a matter concerning those financial commitments upon which the parties had agreed that no future dispute will be brought into Court. Our examination reveals that this agreement was made at a time when the Supreme, Body of Oilfields League and Refinery Union had put forth their 22 demands upon the Appellant Company in their strike notice, of 22nd of February, 1961. Seventeen out of those demands were turned down by the Industrial Court, and five were still sub judice. The Union requested the Assistant Labour Commissioner (Headquarters Rawalpindi) to hold conciliation proceedings over those which were pending adjudication before the Court. The Management of the company agreed to enter into negotiations provided the workers were prepared to enter into a long term settlement in full and final settlement of all demands then put forth by them upon the company. Reading this short recital of the case from the agreement itself with term No. (b) of the agreement, it is obvious that whatever was the dispute about the demands of the workers with the company at the relevant time an agreement was arrived at in which the company had agreed to extend certain benefits to the workers and in turn the workers agreed that their all demands in dispute in existence up to the time of agreement and/or pending before the Industrial Court stood settled. At the, same time the workers undertook not to raise or pursue during the period covered by the agreement any demands involving financial commitments/expenditure, direct or indirect, on the part of the company and-not to raise any demand for the period prior to the execution of this agreement.
6. Reading the agreement as a whole with particular attention to the short recital of the case and terms (b) and (c) of the agreement, we are of the opinion that the appellant cannot take the advantage of these clauses of the agreement so as to extend their coverage to the present dispute. The company normally used to declare their bonus at three months' wages for its workers in the past, most probably it continued to do so from 1961 up to the year ending December 1965 when they were advised to adopt the in genuine device of reducing the bonus abruptly from three months wages to 21 months and to deprive the workers of their legitimate expectation of getting their share of three months bonus out of the profits of the company. The words in clause (c) of the agreement "undertaking not to raise or pursue during the operation of this settlement any demand involving financial commitments/expenditure direct or indirect on the part of the company" cannot be read independent of clause (b) of the agreement which lays down that the terms of the agreement extend to all demands in dispute in existence up to the time of agreement and/or pending before the Industrial Court. It cannot, therefore, be argued that it was the intention of the parties to say the least of the Union that by this agreement they closed the doors upon themselves of all those remedies which were open to them under the law for any new dispute which might creep up during the period the agreement subsisted. We are unable to interpret that this agreement was intended to give an upper hand to the company in order to provide it a protection against all possible acts of omissions and commissions of its own and to make it immune on the pretext that it involved financial commit--ments etc. It will be too much to presume that the workers gave a free hand to the company for a long period of five years to deal with its employees in any way it liked. It cannot be visualised that they agreed with the, company that for all this time they will not raise any demand although the company may be acting in an arbitrary or capricious manner with its employees. If that were so the company can easily dismiss all important office- bearers of the Union and the labour leaders on a false plea that their services were no longer required and if the workers were to demand their re-instatement, it can defend its action on the ground that the workers were estopped from raising this demand as the re-instatement involved financial commitments/expenditure. There may be various minor matters between the workers and the Management and majority of them may involve financial commitments, e.g., grant of leave, refusal to give legitimate compensation in case of injury, medical benefits etc. Etc., can the company in all such cases put forth the above terms of the settlement in their defence? Our plain answer is that it cannot do so. We are of the opinion that the only reasonable and rational interpretation which can be placed on the terms of this agreement is this that the parties had agreed to settle all their pending disputes as were incorporated in the conciliation proceedings relating to the demands in Industrial Dispute No. 12 of 1961, which was consigned to the record after the execution of the above agreement, and it is practically inconceivable to include in its terms all various disputes which were possible to arise between the parties to the agreement in future. The demand of restoration of the bonus of three months raised by the workers in 1965 which legitimately arose as a result of the arbitrary cut in the bonus rate for the year ending December 1965, will not, therefore, be covered by the above agreement.
8. Mr. Mansoor Alam urged that so far as the settlement of industrial disputes are concerned, these are governed and controlled by the Industrial Disputes Ordinance by a set of self-contained rules which form a complete code in themselves and that such a settlement is binding not only on parties to the agreement but on all workmen and that they cannot be deviated from not even in case of changed circumstances and hold good for the specific period, and once a settlement was arrived at between the workers of the Union in 1962 not to raise any financial commitment, it had to be accepted that it is not open to go into the fairness or reasonableness of such settlement either from the point of view of the employer or the employees. So far as these legal formulae are concerned, these are good propositions of law and we have no quarrel with any one of them, but when we examine the case of the Supreme Court cited by Mr. Mansoor Alam in support of his contention, M. M. Ispahani Ltd. v. Ispahani Company Office Employees' Association (PLD 1960 SC 151), we find that it has no application to the facts of the present case. The agreement between the workers and the company in that case was about the following:- "(1) Whether the dismissal of employees effected on 22nd February 1958 was justified and if not, whether they should be re-instated?
(2) If any bonus should be given for 1956?
(3) If any improvement in the existing medical facilities is called for?
(4) If any overtime allowance for outdoor labour staff should be given and the rate thereof?
(5) If the grades and pay-scales have been properly fixed as per provision of the agreement?
(6) Whether the two employees namely-Kabir Ahmad and Ejlash Mia should be re-instated in their former position?
(7) (By subsequent notification) fixation of working hours for Darwans."
The Tribunal had found expressly that the above matters were covered by a settlement effected as a result of the conciliation between the company and the registered association of the employees on the 10th of April 1962 and the particular agree--ments on these points included in the settlement were binding upon the employees on the date of the reference i.e., the 26th of March
958. Their Lordships of the Supreme Court held that it was clear enough that on the date of the reference the settlement was still in force, and the decision of the tribunal in respect of the above items of the agreement entered into under the settlement was binding upon the association and was not open to question. But in view of our finding that the present demand is not covered by the agreement of the 24th of September 1962, neither the above proposition of law nor the Supreme Court authority will be attracted to the present case.
9. Mr. Mansoor Alam also brought to our notice a large number of cases from Industrial Courts, as published from time to time in the Gazette of West Pakistan containing the awards giving effect to the agreement between the workers and the employers. Those cases of Industrial Disputes are from 1962 to 1966, and relate to various industries in West Pakistan. I t will not be necessary for us to give the details of each agreement on which the awards were based by the Industrial Courts in the cases referred to by Mr. Mansoor Alam. We, however, would like to say that it is the duty of the Court to examine each agreement carefully to satisfy itself that it was made in good faith and was not intended to defeat just and reasonable demands put forth by the workers. When the Court is so satisfied it is only then that the settlement can be made the basis for the award of the Court. In the present case, the Industrial Court has held that the under--taking in the agreement cannot, in any way, preclude the Union or the workmen from raising every demand involving financial commitments in future and, as already discussed by us above, we are in agreement with the learned Court that the present demand of increase in the bonus was not covered by the agreement of 1962. The dispute, therefore cannot be said to the vexatious an frivolous as to be hit by the provisions of section 10;1)(a) of the Industrial Disputes Ordinance of 1959, and it constitutes an industrial dispute within the meaning of the law.
10. Mr. Mansoor Alam argued on behalf of the appellant that the disputes raised by the respondents were not genuine but frivolous and vexatious not only on the legal grounds but even on facts. In this respect it was submitted that the Union did not care to file their application immediately and chose to bring their dispute before the Court more than five weeks after the Failure Certificate was granted by the Conciliation Officer. It was, therefore, contended that the Union itself was not serious about these demands and they were raised only as a counter-blast and as a result of the observation of the Court during the proceedings of the appellant's case. It was also pointed out that in spite of filing the application before the Court in the first instance, the Union served a fresh strike notice inflating their demands and that the suspension was not a punishment and demand of Bonus was not an industrial dispute. We regret we are not able to accept any one of these contentions of the learned counsel. The mere fact that the Union was late in bringing the case in Industrial Court and instead served another strike notice was no bar on it to act upon the Failure Certificate and to file the present dispute before the Court. We were not shown any law that in case a party had approached the Court a little late in time or had served another notice of a strike, it will be precluded from acting upon the Failure Certificate to bring the matter to the Court after sometimes. Lastly, it was submitted that the demand for bonus does not constitute an industrial dispute as, according to the Ordinance, an industrial dispute is a dispute or difference which is connected with:
(i) the Employment ;
(ii) non-Employment ;
(iii) terms of Employment ;
(iv) conditions of work and, it was argued that a dispute regarding bonus is neither connected with employment or non---employment or terms of employment and cannot be stretched to come under the expression `conditions of work'. The learned coun--sel pointed out that the Management have filed a copy of their conditions of service in which the term bonus does not figure anywhere and, as such, it cannot be said to be a term of agree--ment and so far as the term `conditions of work' is concern--ed, it merely connotes the physical conditions in which men are working in an industrial concern and has no relation, whatso--ever, to the conditions of employment which, in fact, is covered by the terms of employment because the terms of employment are invariable while the bonus is a variable item, the declaration of which depends upon the rate of profit earned by a particular industrial concern and is never uniform and varies according to the earning.
11. So far as the nature of bonus is concerned, we would like to observe that the employees always regard bonus as an item of remuneration to which they are entitled out of the profits of the company after they have put in a year's labour and they 1 consider it as an essential condition for the continuance of work by them in the future in a particular industrial concern and by convention of industries it has now come to be regarded as a part of their terms and conditions of employment and has been enforced as such by the Courts of law. In India, particularly in Bengal festival bonus has been claimed by the workers at the time of Durga Pooja and it was enforced through Court. In Ispahani Employees' Union v. Messrs Ispahani Ltd. (AIR 1959 SC 1147), the question was that the customary bonus paid at the time of Durga Pooja may be considered to be a term of payment implied in the agreement which may be inferred from the agreement to pay this bonus at the time of Pooja festival. It was held that it has become usual with many firms in Bengal to pay their employees bonus to meet a special Pooja expenses.
12. The object of the Industrial Disputes Ordinance is to bring about industrial peace by settling the disputes between the workers and the Management which, if not settled, may result in the dislocation of the business essential to the life of the community. The grant of bonus to the employees is calculated to make labour more contended and it has always been considered as part of remuneration of the workers for their services. In fact bonus has been regarded as a recognition of the right of the workers to share in some measure in the profits of the company which encourages its workmen to work hard in the hope and wit the knowledge that they will secure more gain to themselves. See Sri C. B. Naido v. The Krome Leather Company Ltd. (AIR 1951 Mad. 856). In Sri Nanakahi Mills Ltd., Madora v. State of Madras (AIR 1951 Mad. 974), it was observed that bonus was not in the nature of an ex gratia payment and must he treated as comprised in the terms of employment.
13. In view of what we have said above about the nature of bonus any dispute about its grant or a variation in its usual grant will invariably be an Industrial Dispute within meaning o the Ordinance.
In Indian Hume Pipe Company Ltd. v. E. M. Nanawati (AIR 1947 Bom. 42), on the question whether a dispute about the payment of bonus within the meaning of Trade Disputes Act of 1929 Stone, C. J., observed: "Accepting that the primary meaning of the word `bonus' is gift or gratuity, in the present case it was not asked as a matter of patronage or bounty. It was demanded, and strike action was threatened, if the demand was not complied with. So as soon as the demand was declined, all the elements of a trade dispute arose. I respectfully agree with the conclusions arrived at in the learned Court below that the dispute between the appellant-company and their argument relating to their demand for the payment of bonus for the year 1944 is a trade dispute within the meaning of Trade Disputes Act."
The provisions of Trade Unions Act of 1929 defining `trade dispute' is analogous in contents and particular with the provisions of the term `industrial dispute' as defined under section 2(h) of the Ordinance. The words "Industrial Dispute" under they Ordinance will, therefore, include any dispute between an employer and its workmen for the demand of "bonus". Taking into consideration the various decisions cited above and the changed conditions of our society in which the rapid industrialisation is taking place in the country we are of the view that bonus has to be regarded as deferred wages payable to employees which may be claimed by them as of right and it should be recognized a one of their rights which they can claim from their employer under certain circumstances.
14. The absence of any terms in the agreement regarding the demand of bonus either of the past or in the future sufficiently indicates that the parties did not intend to bind themselves about this particular item by the agreement. The settlement between the parties which are of binding nature according to the agreement, are those which have been clearly delineated in the deed of settlement and its interpretation cannot be extended beyond the specific scope of the subjects mentioned therein. Those are only the matters to which the law has given a sanctity to be binding between the parties. We agree with the learned counsel for the appellant that the Industrial Law does not envisages a situation in which the finality of the settlement arrived at between the parties can be interfered with by Courts. It rather enjoins upon Courts to compel the parties to ensure that the settlements are carried out for the period mentioned in the agreement itself and neither party is permitted to challenge those matters in the duration of the agreement, but the mere fact that the parties have made a compromise does not oust the jurisdiction of the Court so as to take away its powers to decide about the extent and applicability of the agreement. The finding of the lower Court is that the matter is not covered by the agreement and we have given our approval to this finding. In this view of the matter also the dispute cannot be said to be vexatious and frivolous as to be hit by section 10(1)(a) of the Ordinance.
15. The next argument of the learned counsel that the suspension of certain workers does not constitute industrial dispute has not impressed us in the least. These workers have remained under suspension from 11th June 1965 without being paid any suspension allowance and their fate is hanging in the balance since then. It cannot be urged with any force that the suspension of workers by an industrial concern is not a question relating to employment or non-employment or it does not amount to a change in the condition of service of an employee. Mr. Mansoor Alam drew our attention to a case, decided by the Industrial Court, West Pakistan, reported in 1964 PLC 7(2), where it is observed by the learned Chairman that the demand for the removal of the suspension of the Secretary of the Union was not a demand falling within the definition of industrial dispute as no question of employment, non-employment or a change in terms and conditions of service of the employee was involved in that demand. With due respect we are unable to agree with this finding of the learned Chairman for his interpretation of clause 2(h) that the suspension is not an industrial dispute and does not fall in its ambit. The learned Chairman has given no reasons for hi conclusions. To our mind, the suspension of an employee is a matter which directly hits his terms and conditions of service and affects his remunerations. The Union can, therefore, valid come forward and challenge before the Court that the suspension was arbitrarily ordered and, as such the terms of employment of the workers have been affected or that the suspension is not warranted by the terms of their employment. The mere fact that no final order terminating the service of an employee has been passed will not debar the Union to challenge the order of suspension which obviously is a matter affecting the terms of employment. The employees can also claim that during the period of suspension they are entitled to certain suspension allowance which the Management is unlawfully withholding or that they are made to work during the period of suspension without any remuneration and this amounts to taking forced labour from them. All these matters will certainly fall under the definition of industrial dispute within the meaning of section 2(h) of the Ordinance of 1959. The dispute has, therefore, validly been taken cognizance of by the Court.
16. Before parting with the appeal, we consider it necessary to deal with another important legal aspect of the case. We have seen that in a large number of cases objections have been raised before the Court as and when an industrial dispute is instituted that before proceeding with the adjudication and determination of the dispute on the merits in respect of which an application has been made, the Court should determine in a summary way that all or any of the matters constituting such dispute is frivolous or vexatious. We have noted with concern that in some of the cases parties have insisted on the removal of the dispute from the files of the Court on the ground that the person who filed the dispute was not competent as he was not holding a proper power of attorney etc., and, as such, the dispute should be struck off under section 10(l)(a) of the Ordinance as vexatious and frivolous. The interlocutory determination or adjudication on the preliminary objections, raised under the cover of section 10(1)(a) as vexatious or frivolous objections, are decided by the Court as an interim award and they are published as such in the official Gazette.
These so-called interim awards give cause to the aggrieve parties to agitate the matter in appeal before this Court as an appellate authority under section 12(5) of the Ordinance and the result of filing such an appeal is that the decision of the Court as contained in the award is suspended. The law makes the decision of the High Court as final and the simple filing of the appeal automatically operates as a stay of the order of the 1. Industrial Court. In majority of the cases these provisions of law under section 10 (1)(a) and the filing of the appeals under section 12(5) are being abused.
There are, in many cases literally done with an object to prolong the agony of the workers and to ensure that the litigation is protracted and the workers are denied an immediate relief. It is seldom that a preliminary objection under section 10(1) (a) is raised bona fide, or appeals against interim award are filed to get a decision on a substantial point.
17. The term award, as defined under section 2(h) of the Ordinance means the determination by an Industrial Court of any Industrial Dispute nor any matter relating thereto and includes an interim award. We are unable to understand how each and every matter which is decided by the Industrial Court under section 10(1)(a) becomes an industrial dispute or a matter relating thereto and unless it is shown that the objection which has been raised is a matter concerning the industrial dispute or matters relating thereto, it cannot be termed as an award or an interim award. It may be that an objection goes to the root of the case but every decision on such an objection cannot beg termed as an award. Take, for instance, the case where it is~ urged that the person who has filed the dispute is not duly authorised agent or, as in the present case, the award cannot proceed in the duration of the agreement. If the decision of the; Court is to the effect that the objection is upheld and the petition is thrown out on those objections it may amount to an award, or an interim award, as the case may be. But a decision that the objection is not vexatious or frivolous will not, in all circum--stances, be either an interim award or an award within the meaning of the words award as defined under the Ordinance. We are fortified in this view for the reasons that even in a civil suit a decision which goes to the root of the matter is not always the subject-matter of the appeal.
When a civil Court decides a preliminary issue as to the jurisdiction in favour of the plaintiff, no appeal lies against that finding. The mere fact that an issue as to jurisdiction has been decided cannot be a ground for granting a right of appeal when on the wording of the relevant provisions it is not possible to do so. No injustice or hardship will result to a party if the right of appeal at the initial stage of the proceeding is denied. After all under the Code of Civil Procedure right of appeal is not invariably available against every order, but when an appeal is preferred against a final order any interim order can also be challenged under section 105 of the C. P. C. A decision on the preliminary objection will not, therefore, be an interim award in each case and no right of appeal exists where the objection that the dispute is vexatious or frivolous is simply overruled. The Court should only send such of its decisions for publication as an interim award when its interlocutory order has conclusively determined all or any of the points in controversy between the parties an U which has the semblance of a decree of the civil Court and not every decision on all technical objections. The filing of appeal unnecessarily leads to the protection of the trial and delays the proceedings under the Ordinance and also results in the multiplicity of litigation.
18. The object of the industrial litigation is to maintain harmonious relations between the workers and their employer and to have industrial peace. We cannot visualise a peace in an industry where the dispute of the labour hangs on for decision between the Industrial Court and the High Court for an indefinite time. The other object of the Ordinance is to provide a speedy remedy by setting up special tribunal and that object is also being frustrated by the provisions of sections 10(l)(a) and 12(5) of the Act which provide that a summary judicial determination 1hould be made when a dispute is called by one party as vexatious or frivolous and that the decision of the tribunal has been made subject to the decision In appeal by the High Court and all further proceedings are suspended. In appeal, the High Court may or may not like to grant a stay order, but the existing provisions of section 12(5) operate as an automatic stay of further proceedings before the Court when an interim award is challenged. It is in the interest of labour as well as of the Industries that these provisions are suitably amended, so that the provisions of law of Industrial Dispute are not abused by any interested party. This, however, is a matter concerning the Legislature, in our view, however, even as the law stands at the present, every decision or an objection under section 10(l)
(a) is not such an order which may amount to an award and should not invariably be sent for publication in the official Gazette as an interim award. The Industrial Courts can easily decline to register such cases as an interim award and may proceed to determine, the merits of the petition so that speed disposal of the industrial disputes is recorded.
19. As a result of the above discussion, we see no merit in this appeal, which is hereby dismissed with costs.