7-Up Employees' Union viz. the petitioner-Union has filed the under consideration petition under section 34 of the Industrial Relations Ordinance, 1969 seeking the implementation of the settlement dated 26-6-1972 and further praying that the respondent i.e. the Management of 7-Up Bottling Co. be restrained from violating the said settlement.
2. The petitioner-Union has contended that according to the aforesaid settlement the Management had undertaken to pay commission @ 8 paisas per crate to salesmen, 4 paisas per crate to drivers and 2 paisas per crate to loaders on the sale of beverages. This commission was to be paid in addition to the monthly wages being paid to the above-mentioned categories of workmen. According to the petitioner-Union, the Management now intended to do away with the system of sale of the beverages through employees and wanted to effect sales through agencies.
In this manner, according to the petitioner, the respondent intended to deprive the employees of the commission which they were entitled to receive under the settlement dated 26-6-1972.
3. The Management resisted the petition and pleaded inter alts that the settlement dated 26-6- 1972 on which the present petition of the petitioner --Union was based was no more in force inasmuch as the petitioner-Union itself by giving notice to the Management terminated the settlement on 22-2-1973 and subsequently fresh settlements were executed on 23-6-1973 and 1-8- 1974. It has also been contended by the respondent that the petitioner-Union was a not validly formed union and a validly elected or declared C. B. A. On merits the respondent contended that the Management bad not agreed that it would not introduce a different mode of sale beneficial to it and therefore the Management was at liberty to introduce agencies system.
4. The petitioner-Union has examined P. W. 1 Mr. Munawar Ali, General Secretary of the petitioner- Union and P. W. 2, Mr. Muhammad Amin a salesman.
5. The respondent Management has produced R. W. 1 Mr. Gulzar Ahmed Nasim, Chief Accountant, R.
W. 2, Mr. Kolvin Gardner Area Sales Manager and R. W. 3, Mr. Shaukat Aziz, General Manager of the 7- Up Bottling Co.
6. As regards the first objection raised by the respondent that the settlement dated 26-6-1972, the basis of the present petition, has since been terminated and substituted with subsequent settlement, it is observed that admittedly the petitioner-Union by sending notice Exh. R-I to the Manage--ment terminated the settlement and the Management had agreed to revocation of the said settlement by letter Exh. R.
2. This is also on record that subsequent settlements have been executed between the parties. It is however' not disputed that in the subsequent settlements the terms regarding the payment of commission on sales of beverage to salesman, drivers and' loaders as contained in the settlement dated 26-6-1972 has rot been done away with amt no settlement containing a contrary provision has beam executed between the parties. While disposing of the stay application by my order dated 14-1-1975 relying on 1972 PLC 190 I have already concluded that the settlement dated 26-6-1972 so far at the terms contained in it regarding the payment of commission to salesmen etc. is concerned has not become nullity and that the parties cannot revert back to the position obtaining prior to the date of settlement. In view of this it is again concluded that the terms contained in the settlement dated 26-6- 1972 regard-- ing the payment of Commission on which the present petition is based has still a binding effect on the parties, until fresh terms in this behalf are negotiated and arrived at.
7. Regarding the validity of the constitution of the petitioner-Union and its status as C. B. A., it is observed that the contents of Exh. P. I. photocopy of the registration certificate of the Union show that the petitioner --Union is a duly registered Union. Mr. Muaawar Ali General Secretary, has stated that out of about 175 permanent employees of the establishment of the respondent 135 were the members of the petitioner-Union. He has produced Exh. P. 2 photocopy of the C. B. A. certificate.
According to this witness all the office-bearers were the workmen employed in the establishment of the respondent. Three of them had since been terminated but their applications under section 25-A of the Industrial Relations Ordinance, 1969 were still pending. No evidence has been led in rebuttal.
8. From the parties evidence it transpires that the petitioner-Union was a validly formed and registered Trade Union. It was previously recognised as C. B. A. and subsequently it has been certified as C. B. A. It is true that the C. B. A. Certificate has been obtained by the petitioner-- Union after tile present petition was filed but no objection in this behalf has been raised by the respondent. Moreover the respondent in the past has always recognized the petitioner-Union as C.
B. A. and has executed settle--ments with the petitioner-Union,' on 26-6-1972 (Exh. P. 3), 23-6-1972 (Exh. P-4), 1-8-1974 (Exh, P. 5) and 28-7-1975 (Exh. P. 6).
9. In the light of the above, it is held that the petitioner-Union is legally competent to file the present petition.
10. So far as the merits of the case are concerned, the oral as well as documentary evidence of the parties show that previously the plant installed by the respondent had the production capacity of 6000 crates a day. The respondent has installed another plant with production capacity of 13000 crates a day. After the installation of the now plant the Management has introduced agency system alongwith the system of sale through salesmen. Muhammad Amin who has appeared as P.
W. 2 has admitted that on account of increase in the production capacity there has been increase in the commission of salesmen, drivers and loaders even after the introduction of agencies system as compared to the period when the agency system was not introduced. Mr. Gulzar Ahmed Nasim Chief Accountant of the respondent has produced statements E:h. R. W. 1 and Exh. R. W. 1/2 showing commission of salesman for the years 1974 and 1975 respectively. A perusal of these statements reveals that the commission paid to salesmen after the introduction of agency system has in fact, increased. Obviously there is no provision in the settlement-dated 26-6-1972 to the effect that the Management could not effect sales except through salesmen, drivers and loaders.
11. In this view of the matter and in the light of the parties evidence it is concluded that the agency system introduced by the respondent after the installation of new plant with much more production capacity compared to the previous plant has not in any manner adversely affected the right of workman to receive commission in persuance of the settlement dated 26-6-1972. It appears that agency system has been introduced as a competitive sale system side by side with the system of sale through salesmen etc.
12. in view of the findings recorded above it is directed that the respondent shall continue to give effect to the terms of settlement dated 2b-6-1972 in so far as the payment of commission on sales through salesmen to certain categories of employees i3 concerned. The Management of the respondent shall be bound to do so till such time that fresh terms in this behalf are negotiated and arrived at between the parties. Consequently the respondent shall not do away with the system of effecting sale through salesmen. The respondent shall however be at liberty to effect sale through system of agencies as a competitive system of sale and for the disposal of the increased production due to the installation of the new plant of more production capacity. However, on account of the introduction of agency system retrenchment of the staff affected by the terms of settlement-dated 26-6-1972 concerning commission shall not be resorted to.