' FAKHRIMDIN G. EBRAHM, J -The facts giving rise to this appeal are that on 8th September, 1971 the respondent-Union submitted its charter of demands to the appellant-Company which included a demand for annual bonus which read as follows "The Company should pay annual bonus to all employees equivalent to 1/5th (20%) of the total annual earnings including over-time etc., for the year 1970-71 and should continue to pay annual bonus at the said rate in future subject to the additional increase requested by the employees."
' On 26th of January 1972 a Settlement was arrived at between the parties and the claim for bonus was resolved in these terms "The Company agree to pay annual bonus to all workers calculated at the rate of 15% of their earnings of scale of pay during the currency of this Settlement"
2. The period of operation of the Settlement agreed to between the parties was from 1st September, 1971 to 30th of June 1973 and thereafter to be continued to be binding on the parties until expiry of two menthe notice terminating the Settlement by one party to the other. It was further agreed that the Settlement was in full and final Settlement of all the &wands made by the Union and that the Union will not make any further financial demands during the currency of the Settlement.
3. On 13-4-1972, the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 was amended to include inter alia, Standing Order 10-C providing for the payment of a profit bonus. On 1st of January 1973, the Company announced by notice, bonus for the calendar year 1972 in accordance with the aforesaid Settlement dated 24th January, 1972 to be paid to all eligible employees who had as on 31st of December, 1972 completed six months continuous service with the Company. This notice further stated that all other existing conditions regulating payment of annual bonus will remain unchanged. It is au admitted position that in terms of this notice the Company paid and the eligible employees received bonus for the calendar year 1972 immediately thereafter. On 4th May, 1973, the Union served a demand notice under section 26(1) of the Industrial Relations Ordinance, 1969, claiming, inter alia, payment of bonus for the financial year 1972-73 under Standing Order 10-C which was resisted by the company on the ground that the bonus paid following the notice dated 1-1-1973 was a profit bonus and the employees were, therefore, not entitled to receive additional profit bonus under Standing Order 10- C. The dialogue that followed between the parties failed to resolve this issue. The Com-- pany's case is that to avoid the threatened strike and with a view to maintaining industrial peace but without prejudice to its contention they reluctantly entered into a Settlement with the Union on 13th June, 1973 agreeing to pay an amount equivalent to the alleged additional bonus under Standing Order 10-C, bat subject to its claim to seek enforcement of its legal right in this respect. The relevant clause of the Settlement reads as follows "Therefore, the Company, in order to avoid an unpleasant situation and in order to maintain industrial peace and without prejudice to its contention, reluctantly is obliged to pay an amount equivalent to the alleged additional bonus under Standing Order 10C on the clear understanding that the Company will have the right to approach the competent Courts of law to seek enforcement of its right and other reliefs in the above respect or to enforce any decision which may be pronounced by competent Courts of law or Government in this regard in general in due course of time."
4. Following the above Settlement the Company filed a petition under section 34 of the Industrial Relations Ordinance, 1969 before the Labour Courts. The case of the appellant was that they have been paying in the past its workmen annual bonus because of its being related to the profits made during the financial sear and this profit bonus was paid at a varying rate over the years and it was in keeping with this policy that bonus was agreed to be paid under Settlement dated 26th January, 1972. The Company prayed for an award, that on payment of profit bonus under the Settlement dated 26th January, 1972, it had discharged its liability under Standing Order 10-C, that in the circumstances of the case the Company was not liable to pay and the Union rot entitled to claim additional bonus under Standing Order 10-C and the Company was entitled to recover the alleged additional bonus paid under the Settlement dated 13th June, 1973, from the employees by deduction from their monthly wages and/or by adjustment against future bonus, if any. The Labour Court found that "bonus so far paid to the workers in the instant case were contractual bonus or irrespective of the fact whether the Company earned profits or not "which was further supported by the admitted position that though the Company had sustained losses in the year 1971 it did pay bonus in accordance with the Settlement. It rejected the contention of the Company "That the bonus so far paid was nothing but a profit bonus and that clause (4) of Standing Order 10-C does not guarantee that bonus which though paid under the settlement was in fact a profit bonus and dismissed the petition."
' This order was unsuccessfully challenged in a Constitutional petition and this appeal is directed against the dismissal of that Constitutional petition. The learned Single Judge rightly observed in his judgment that the substance of the controversy between the parties is as to the nature and the content of the settlement bonus stipulated to be payable under the Settlement dated 26-1-1972 and went on to observe : "That the decision of the question as to the nature of bonus under the Settlement in my opinion did not conclusively determine the true construction of clause (4) of Standing Order 10-C upon which the fate of the petition ultimately hinged."
' On the question of the nature of the bonus stipulated in Settlement dated 214-1972 the learned Judge after a detailed and impressive analysis of the history of payment of bonus came to the inescapable conclusion that in the past the Company was made to pay the bonus on the basis of profit and not as an implied term of employment irrespective of profits.
' The learned Judge thereafter went on to discuss the question whether clause (4) of Standing Order 10-C prevented the workers from claiming statutory bonus under its clause (1) if for the relevant year they have received a higher profit bonus under a Settlement. In other words, whether or not the law contemplated payment of more than one profit bonus in the same year to the workmen. Clause (4) of Standing Order 10-C reads as follows :- "10-C.-(4) Nothing in this section shall be deemed to affect the right of any workman to receive any bonus other than that payable under clause (1) to which he may be entitled in accordance with the terms of his employment or any usage or any Settlement or an award of a Labour Court established under the Industrial Relations Ordinance, 1969 (XXIII of 1969)."
' According to the learned Judge the clear intention of the Legislature envisaged in clause (4) was to have the validity of bonus payable under a Settlement from being affected by the payment of compulsory statutory bonus and if "the intention was to only preserve the validity of the bonuses other than profit bonus, then any settlement or award by which a profit bonus in excess of the statutory bonus was required to be paid would also cease to be payable." But this does not appear to be the intention of the Legislature. He has been further pleased to observe that it was legally permissible for an employer to agree to pay profit bonus at rate higher than prescribed under Standing Order 10-C, for its clause (2) prescribes for the minimum and accordingly an employer would be guilty of violation of the provisions of Standing Order 10-C in case he fails to pay profit bonus at the minimum rate prescribed and any agreement to that effect would be void as being unlawful which led to the conclusion that it was open to the workmen despite the mandatory payment of profit bonus at a higher rate if they can justify the same. The conclusion was summed up by the learned Single Judge in these words "Looking at the provisions of clause (4) in the above prospective, it would appear that the intention of the Legislature was to clarify that if the bonus is payable otherwise than under the statute by virtue of terms of employment, usage, settlement or award, it shall continue to be payable. To me the meaning of the words 'other than' appears to be 'apart from' and if the former words are substituted with the latter the meaning would be plain and clear."
5. Mr. Irshad Hussain Khan, the learned counsel for the appellant challenged the impugned judgment on the ground that the learned Judge having come to the conclusion that the annual bonus paid for the calendar year 1971-72 under the Settlement dated 26-1-1972 was a profit bonus at rate higher than prescribed in clause (2) of Standing Order 10-C, it was not open to the Union to claim or receive additional statutory bonus under clause (1) in view of the provisions contained in clause (4) of Standing Order 10.C. He burden of the argument of the learned counsel was that the learned Judge has overlooked the real purport of Standing Order 10-C and that he has erred in construing its clause (4). Now, in so far as the Schedule to the Standing Orders Ordinance is concerned it provides for minimum terms and conditions of service applicable to specified establishments. Before the incorporation of Standing Order 10-C payment of profit bonus depended upon either the will of the employer or was paid under an award or a Settlement between the parties.
' There were a large number of establishments which did not pay any profit bonus. By introducing Standing Order 10-C such establishments were compelled to pay a profit bonus. The Standing Orders do not displac either the existing more favourable terms and conditions of service of the employees nor do they deprive the workmen from seeking better terms and conditions of service, either by adjudication or as a result of collectir bargaining. Section 4 of the Ordinance provides that the Stan sing Orders may be modified by means of a collective agreement but no such agreement shall have the effect of taking away or diminishing any right or benefit available to the workman under the provisions of the Schedule. Section of the Ordinance expressly protected the existing conditions of employment in so far as these conditions were more favourable to the workman than those provided In the Standing Orders. It, therefore, follows that if under Standing Order, gratuity was payable to a workman under specified conditions a more favourable gratuity payable to the workmen under a Settlement an Award will continue to be payable to the concerned workmen. It will, further follow from this that it will not be open to such a workman t claim more favourable gratuity under an Award or a Settlement and als the gratuity ensured to him by the Standing Order.
So construed there would be no conflict between a settlement which may provide for a higher rate of profit bonus and the statutory bonus under Standing Order 10-C as was apprehended by the learned Single Judge. This would be the position even in the absence of clause (4) of Standing Orjer 10-C the purport of which clause is altogether different, namely to protect bonuses other than profit bonus that may be payable to the workmen in accordance with the terms of his employment or any usage or any settlement or an award. The Legislature was aware that the law recognised several kinds of bonuses other than profit bonus, namely, customery bonus, production bonus, bonus as a condition of employment, festival bonus and clause (4) protected these bonuses for they were not intended to be adversely affected by the statutory profit bonus under clause (1) of Standing Order 10-C. "Clause (4) protecte bonuses other than that payable under clause (1), and with respect to the learned Single Judge, we are of the view that in its context the meaning of the words "other than" does not mean "apart from". Black's La Dictionary defines "other" as "different or distinct from that already mentioned." According to Stroud's Judicial Dictionary the word "other than" creates an exception. The word "other than" occurring in clause (4) has been, to my mind used as a differentiating word and this clause, therefore, preserved the right of the workers to bonuses of a different nature from the bonus payable under its clause (1) which was obviously a profit bonus. The conclusion, therefore, is that the words "other than that payable" under clause (1) "occurring in clause (4) of Standing Order 10-C means- "other than profit bonus payable under clause (1)."
6. Mr. Azhar All Siddiqui, the learned counsel for the Union firstly contended that the bonus payable under the Settlement dated 26-1-1972 was not a profit bonus but an unconditional payment of annual bonus to the employees. He went on to argue that the condition for payment of bonus under the Settlement was expressly not made dependent upon profits and it was not open to the learned Single Judge to look behind the Settlement and arrive at the finding that it contemplated profit bonus. It is settled law that an ambiguity or a doubt in a written document can b3 resolved by reference to extrinsic evidence. The expression bonus immediately conjures upon one's mind the concept of share in profits. It may also mean, if it is otherwise demonstrated, to be dependent not upon profits but upon usage or be a condition of employment or on account of consideration other than profits. Since all that the Settlement stated wag that the! Annual bonus would be paid it became necessary to ascertain what was the nature of bonus agreed upon between the parties, and the learned Judge was, therefore, quite right in embarking upon this enquiry. As to the finding itself of the learned Single Judge that the parties contemplated profit bonus, which was also challenged by Mr. Azhar Ali Siddiqui, it will suffice to say that we are in full agreement with the learned Single Judge in his painstaking analysis of history of bonus paid by the Company to its employees from time to time which clearly went to show that bonus was always made conditional upon payment of profits.
7. Mr. Azhar All Siddiqui's next contention was that even if it be assured that two profit bonuses were not contemplated by law, namely, one under clause (1) of Standing Order 10-C and the other under a Settlement or usage, only that profit bonus will displace the statutory bonus under clause (1) which fully conforms to the latter in all its terms, for clause (4) protects only bonus other than that payable under clause (1) of Standing Order 0-C. The argument was that if there is a conflict between the statutory bonus and the settlement bonus the latter would be void. The learned counsel relied on a Peshawar decision reported in PLD 1976 Pesh.
8. In this case the settlement bonus was at the rate of 22i months' basic pay and ezpressly in lieu of bonus prescribed in Standing Order 10-C for the calendar years 1972 and 1973, payable to all permanent employees of the company who have been in the company's employment for a continuous period of one year or more as at 31st December of the year in respect of which bonus was payable and those who had completed less than one year's service but more than 90 days continuous service as on the 31st December, of the year, to be paid proportionate bonus. The Court came to the conclusion that these terms and conditions, though not the rate of bonus mentioned in the settlement, were less favourable to workers than those envisaged under Standing Order 10-C inasmuch as under the latter the worker was entitled to statutory bonus if he had in that year completed employment for a continuous period of not less than 90 days irrespective of his being in service on the date of declaration of bonus, and thus there was conflict between the settlement bonus and the statutory bonus making the former void and the latter available to the workmen. It may, however, be noticed that it was conceded on behalf of the Company that if upon the scrutiny of the Settlement it was found to be inconsistent with the provisions of Standing Order 10-C, the Settlement would be void. It was also not urged before the Court that the law did not contemplate more than one profit bonus to a workman and in final analysis the judgment appears to be founded on the conclusion that the workers were entitled to bonus as a condition of service irrespective of profits. Be that as it may, I am unable to agree with the learned counsel that if there is a conflict between a settlement and a statutory bonus, the latter will prevail and the former will become void, To my mind there is no question of the workers being entitled to two profit bonuses and it will be for the workers to accept either a settlement profit bonus or statutory profit bonus.
There would, therefore, be no occasion for a conflict between the two. The other interpretation would be that an attempt will be made to harmonise the terms and conditions of the settlement - nus and the statutory bonus and the more favourable between the twe'-will prevail. To give an example in the case decided by the Peshawar Court, possibly a workman who had completed 90 days' service could insist upon payment of higher rate of bonus under the Settlement irrespective of the fact that under it he would not be so entitled to, for the Settlement will stand modified to the extent it is less favourable than the terms prescribed for grant of statutory bonus under Standing Order 10-C.
8. This appeal therefore, succeeds with the result that Constitutional Petition No 133 of 1976 is allowed but in the circumstances there will be no order as to costs.