' In this petition the petitioners have challenged the validity of the award-dated 6th October 1973, passed by the Sind Labour Court No. V, Karachi, disallowing the petitioner's request seeking declaration that they were entitled to a customary bonus.
2. The facts forming the background of this case are that the petitioners are a Workers' Trade Union existing in 2nd respondent's organization. According to the petitioners, there was an uninterrupted practice of the payment of bonus to the workers in the 2nd respondent's organisation. Prior to 13th April 1972, on which date the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, (hereinafter called "Standing Orders Ordinance, 1968") was promulgated there was no statutory obligation on the 2nd respondent to pay bonus to their workers.-However, Standing Order 10 (c) of the Standing Orders Ordinance, 1968,. Provided that besides the customary bonus, if any, paid by the employers, the workers shall be paid statutory bonus according to the formula laid down in Standing Order 10 (c) of the Standing Orders Ordinance, 1968.
3. The petitioners further contended that in their organisation there was a long practice of paying one month's salary on Eid occasion and the last payment in this connection was made in October 1972. Apart from this, one month's salary was also paid in the month of June every year after the closing of the accounts and the last such payment was made to the workers in June 1973. Thus they were paid two bonuses one of which, was paid on Eid occasion and the other on closing of the year.
4. On 11th April 1973, the 2nd respondent put up a notice on their Notice Board announcing that the second bonus which was paid on the Eid occasions would henceforth be dispensed with as they were not obliged by law to pay the same. The contents of the notice show that the amount equivalent to one month's salary paid to the workers on Eid occasions was in fact advance salary adjustable against the bonus and not the bonus itself. After issuance of this notice the petitioners raised a dispute and wrote a letter to the 2nd respondent stating that the amount equivalent to one month's salary paid to them on Eid occasion was not an advance against, salary but it amounted to customary bonus, therefore, the 2nd respondent was not discharged from the liability of paying the statutory bonus under Standing Order 10-C of the Standing Orders Ordinance, 1968 as well as the bonus paid on Eid occasion. This contention was, however, turned down by the 2nd respondent who persistenly insisted that only one profit bonus was paid to the workers and one month's salary paid on the Eid occasion was advance against salary and not a bonus.
5. On 23rd April 1973, the petitioners made an application under section 34 of Industrial Relations Ordinance, 1969, which was decided against them on 6th October, 1973 by the Sind Labour Court No. V, Karachi. The Sind Labour Court held that one month's salary was not paid by the 2nd Respondent to the workers on Eid occasion as bonus but it was advanced against the salary. It further held that the petitioners have not been able -to establish that the amount paid to them on Eid occasion was of ancient origin and it could therefore be considered as customary bonus.
6. The learned counsel for the petitioners has contended that there was a usage prevalent in the 2nd respondent's organisation whereby above-said two bonuses were paid to the workers and that this practice could not be discontinued by virtue of Standing Order 10-C(4) which provides that the statutory bonus payable under Standing Order 10-C of Standing Orders Ordinance, 1968, would not affect the payment of any bonus to which the workers may be found entitled in accordance with the terms of their employment or any usage, settlement or award of a Labour Court. Defining the word "usage" he laid stress on the point that it was not necessary that usage should be of ancient origin. As this word is not defined in the Standing Orders Ordinance, 1968, therefore, he stressed that dictionary meaning shall have to be attributed to it. In Twentieth Century Chambers Dictionary the word "usage" is interpreted as "practice" or "custom" or "treatment". The word "practice" has been defined as a repeated performance. The word "custom" has also been defined in it as an act usually done by a person. It is obvious that the word "usage" shall have to be considered in the terms of an act which is frequently repeated by a person. In this connection the petitioners' counsel has placed reliance on Hind Mercantile Corporation Limited v. Meryalia Venkateswa rlu & Co. And others. (1). In this case it is held that it was not necessary to establish antiquity, uniformity and notoriety in proving a usage.
' Even if the contention of the learned counsel for the petitioners is accepted in entirety and it is held that to prove a usage it was not necessary that the practice which is termed as "usage" should be of an ancient origin, the fact remains that the case set up by the 2nd respondent is quite different. The 2nd respondent's case is that the amount continuously paid on Eid occasion was an advance against salary and not a customary bonus. According to the 2nd respondent they paid only one profit bonus to the workers and even now they were prepared to abide by the provisions of Standing Order 10 (c) of Standing Orders Ordinance, 1968 and pay profit bonus according to the formula laid down in Standing Order 10 (c) of Standing Orders Ordinance, 1968. The question therefore requiring examination is whether the amount paid on the Eid occasion was an advance recoverable from the salary or profit bonus or it was itself a bonus. In this connection I may refer to the statement of Ghairat Hussain Kazmi who is General Secretary of the petitioners' Union. He appeared as a witness before the Labour Court and stated that his claim was for statutory bonus under Standing Order 10 (c) of Standing Orders Ordinance, 1968. He further stated that whatever bonus the workers were paid was on the profits earned by the Company. He went on to say that :- "It is, however, correct that Eid advances are recovered from the subsequent bonuses paid to the workers each year."
' From this statement it transpires that the amount paid to the workers on the occasion of Eid was not a bonus but an advance against the salary' {{FOOT NOTE}}
(1) AIR 1959 Andh. Pra. 545 {{FOOT NOTE}} which was recoverable from the bonus paid each year. The learned counsel for the petitioners has tried to argue that the amount paid on the occasion of Eid was never recovered from the workers.
This argument does not carry any force. Even if the 2nd respondent did not recover the amount paid to the workers on the occasion of Eid by way of advance against the salary it did not preclude him from recovering the same or compelled him to pay it regularly. It is so because the nature of the payment is such that it is always adjustable or recoverable from the amount paid by way of bonus or salary. An advance paid against salary can always be recovered and it does not lie in the mouth of the petitioners to say that since for a number of years this amount was not adjusted against the bonus or recovered from the salaries therefore this practice should continue and the amount so paid should be treated as a bonus. Moreover, they are belied by their own witness whose statement I have reproduced above. He has categorically stated that the amount paid on Eid occasion was recovered from the subsequent bonus paid to the workers each year.
' From the perusal of the record the relevant portion of which has been discussed above it clearly transpires that the 2nd respondent paid one profit bonus to the workers. Besides that, in order to facilitate the workers they gave advance salary at Eid occasion which can by no stretch of imagination be termed as customary bonus. This payment is not covered by the provisions of Standing Order 10-C(4).
7. For the foregoing reasons I find no substance in this petition which is hereby dismissed. In the circumstances of the case the parties are left to bear their own costs.