' These are 33 appeals disposed of by one common judgment, dated 16-3-1999 passed by the learned Presiding Officer of 3rd Sindh Labour Court, Karachi in 33 grievance applications listed above, whereby all the applications were allowed by directing the appellants to pay the various amounts deducted from the salaries of the %arious respondents.
2. The brief facts giving rise to the above appeals are that the respondents resorted to stay-in- strike on 19-4-1998 from 7-30 a.m. To 2-00 p.m. And then from 6th May, 1998 they stayed-in-strike for the whole day. This continued up to 5th June, 1998, for one full month. The respondents were charge-sheeted by letters, dated 25th May, 1998 which was followed by another letter, dated 28th May, 1998 asking, inter alia, for recalling the strike. The fact was communicated to the Labour Directorate, Karachi on the prescribed form "Y" everyday during the whole period of stay i,e, stoppage of work by the workman by way of stay-in-strike.
3. Appellants also approached the N.I.R.C., and obtained an order, dated 2-6-1998, whereby a learned Member of the Commission was pleased to order "meanwhile the office-bearers, members and other workers of respondent CB A. And other connected persons are restrained from strike, go slow Gherao inciting other willing workers to stop work, raising slogans, interfering in the functions of the management, holding meetings, taking out rallies drumpet shouting, demonstrating, displaying of banners, bearing armed bends writing/chalking on the walls, physical violence, damaging property/machinery causing loss, and further they are restrained from compelling, intimidating and coercing the management to accept their demands and further they are directed to conduct their affairs in a manner calculated to avoid occurrence of unfair labour practice till the next date. (Annexure R/8 at pages 47, 48 and 49 of R&P) This order does not appear to have been challenged by the respondents. Wages of that period of stay-instrike were not paid to the respondents for the month of May, 1998 except that certain allowances were duly paid to the respondent, which were, later on, deducted from the salaries of the month of June, 1998. On query by the Tribunal learned counsel for the appellant submitted that the allowances were paid so that the workers may not starve due to total deduction of the wages/allowances both.
4. The respondents, however, served grievance notices on 4-6-1998 in respect of deduction made from the wages for the month of May, 1998, the appellants gave their reply on 9th June, 1998 whereby the stand taken by the appellants was that the deduction made by the management was correct and legal and that the allowances paid will be recovered from their future wages".
Thereafter, the respondents filed applications under section 25-A, I.R.O. Before the learned Labour Court No,3 at Karachi. The appellants filed their reply statement taking certain legal as well as factual pleas. Every respondent filed his affidavit-in-evidence separately though the contents were common. Abdul Wahid one of the respondents only was cross-examined and by consent of the parties his cross-examination was read as evidence in all the other applications. The notified Factory Manager of the appellant Mr. Riaz Muhammad Khan filed his affidavit-in-evidence and he was cross-examined by the other side. Arguments were heard and the applications were allowed by the learned Presiding Officer as already referred to above.
5. Before proceeding further I would like to reproduce the points determined by the Presiding Officer in para. 5 of his decision. The points for his consideration are as under:-
(1) Whether the respondents have made deductions from the pay/wages of the applicants illegally?
(2) Whether the petition is maintainable under law?
(3) What should the order be?
6. The learned counsel for the appellant submitted in the first instance that the learned Presiding Officer framed the above points for determination while sitting down for judgment. He failed to frame the issues arising out Of the pleadings and that is why the several legal pleas raised by him in the reply statement, of legal natures were not at all included in the points for determination. I think sometime back I had issued directions to all the learned Presiding Officers that soon after the written statement is filed issues should be framed by the learned Presiding Officers arising out of the pleadings i,e, the grievance application and the reply statement, and record the same on the file so that the parties may know beforehand as to the points involved in the case and lead evidence thereon. This will help to arrive at just conclusion and also will meet the ends of justice.
7. Learned counsel for the appellants, however, raised the following pleas:--
(i) The learned Court lacked the jurisdiction; ' The application was hit by the provisions of sections 7 and 9 of Payment of Wages Act, 1936. As such the application was not maintainable in law.
8. In support of the first plea, the learned counsel for the appellant submits, that there is a specific forum provided for the recovery of any deductions made from the wages of non-payment of the wages i,e, the Authority under the Payment of Wages Act Special jurisdiction vested in the Authority for Payment of Wages Act at Karachi under the Payment of Wages Act, 1936 being a special nature.
The jurisdiction, general in nature provided under section 25-A of the I.R.O. Was not attracted to the facts of the case. Reference was made to section 15 of the said Act which reads as under:- "15. Claims arising out of deduction from wages or delay in payment of wages and penalty for malicious or vexatious claims.---(1) The Provincial Government, may by notification in the official Gazette, appoint any Commissioner for Workmen's Compensation or other officer with experience as a Judge of a Civil Court or as a stipendiary Magistrate to be the authority to hear and decide for any specified area, all claims arising out of deductions from the wages, or delay in payment of the wages or non-payment of dues relating to provident fund or gratuity payable under any law, of persons employed or paid in that area."
9. In support of the second plea learned counsel referred to sections 7 and 9 of the Payment of Wages Act, which are reproduced as under:-- "7(2). Deductions from the wages of an employed person shall be made only in accordance with the provisions of this Act, and may be of the following kinds only, namely:-
(a) --------------
(b) deductions for absence from duty.
9. Deductions for absence from duty.---Deductions may be made under clause (b) of subsection
(2) of section 7 only on account of the absence of an employed person from the place or places, whereby the terms of his employment, he is required to work, such absence being for the whole or any part of the period during which he is so required to work."
10. On reading the impugned decision, the learned Labour Court appears to have allowed the applications on three grounds:--
(1) that no charge-sheet in respect of stay-in-strike was issued.
(2) No Court has given verdict that the strike was illegal,
(3) That the witness who appeared for the appellants was though a notified Manager of the Factory but he was not authorized, as the person who had signed the written statement has not been produced in Court, therefore, the reply statement is not to be taken into consideration.
11. As regards the first point the learned counsel for the appellants referred to the two letters on record (Annexure-A to the application under section 25-A) which is in reply to the letter of charge- sheet produced by the respondents themselves which the learned Presiding Officer seems to have conveniently ignored. Reference may also be made to Annexure R/5, dated 28-5-1998. The two letters in sum and substance contained the charges. in sufficient detail levelled against the respondents. It is nowhere laid down in law that the letter should be titled as charge-sheet, if it sufficiently communicates the charge to the respondents. Reliance is placed on 1995 PLC 268 wherein it was held that it is not necessary that the charge-sheet must be signed by the employer himself. Reference may also be made to 1989 PLC 291 of this Tribunal wherein, inter alia, it has been observed that the charge must not be in any specific language or form". Therefore, there is no form prescribed by law for the charge-sheet. It cannot, therefore, be said that the respondents were not supplied with any charge-sheet.
12. The observation of.The learned Presiding Officer that no Court has given verdict that the strike was illegal as such no deduction could be made from wagem. The appellants in their evidence have given ample details as to the factum of continuation of the stay-in-strike which was fully reported to all the departments concerned and the Production Report itself was produced before the learned Labour Court vide Annexures R/21 to R/81 submitted alongwith the affidavit-in- evidence of the Factory Manager. The learned Labour Court had the sufficient material on record to give a finding as to the legality or otherwise of the strike which he failed to do so. So, it is apparent that the learned Labour Court has erred in law by not reading the evidence on record.
13. It is significant to note that the respondent did not protest against the order passed by the N.I.R.C. For vacation of the Stay Order or make any application for declaration of the, strike as illegal.
14. As regards the third point referred to in the judgment last 4 Iines of the cross-examination of the respondent's witness, the learned counsel for the appellants submits that Mr. Riaz Muhammad Khan notified Factory Manager of the factory deposed as under:-- "I produce a letter, dated 15th January, 1999 issued by Mr. Sheharyar and signed as Factory Manager on Exh.R.W./49."
15. Learned counsel for the appellants further submits that there are two Managers one is the notified manager who was examined as a witness for the factory whereas Sheharyar is the Production Manager. The learned Presiding Officer, it appears misread these two letters. The learned Presiding Officer failed to take into consideration the reply statement for the reasons that it was not on oath and the persons who had signed it was not examined in the Court. Reliance is placed on 1999 PLC 154, wherein it .Was observed that the written statement is not required to be on oath in the labour cases?
16. Mr. Ch. Ashraf Khan, however, submitted that the learned Presiding Officer seems to have assumed the jurisdiction purportedly on the ground that the monthly wages of each of the respondents was exceeding Rs,3,000 and as such the Payment of Wages Act, 1936 was not applicable, Ch. Ashraf Khan submits that under section 3 of the Payment of Wages Act it is the duty of the employer to make the payment of the wages to the workers so the workers had a right guaranteed and secured under the Payment of Wages Act. If the Payment of Wages Act was not applicable, then the provisions of section 25-A of the I.R.O. Were also not available because the said section 25-A provides that any right guaranteed under any settlement, award or under any law can be enforced through proceedings under section 25-A. Admittedly the right claimed under section 25-A by the respondent was not a right guaranteed and secured under any award or settlement and as observed by the learned Presiding Officer the right was not also secured under the Payment of Wages Act because ceiling fixed by the law is up to Rs,3,000 per month. Under the circumstance, the provisions of section 25-A of I.R.O. Were legally not available to the respondent.
According to him it was only a Civil Court which could exercise its power under the general jurisdiction. Reliance was placed on the cases reported as District Manager, Karachi Omni Bus Service v. Muhammad Zaman and another (1975 PLC 45) by late Chief Justice Inamullah Khan, the 1st Chairman of the West Pakistan Industrial Court. The judgment being short, it seems beneficial to reproduce the same in full:-- "This is an appeal against an award of the learned Presiding Officer of Labour Court No,II, Karachi, dated November 2, 1973, In an application under section 34 of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance), whereby the learned Labour Court granted wages for the period from 9-12-1970 to 22-7-1971. On the fact of it, the application under section 34 of the Ordinance was not maintainable, as the Labour Court was not the proper forum. The proper Court was the Civil Court under the Payment of Wages Act. Moreover, the authority which had ordered his reinstatement had also power to treat the period of absence without pay. He was absent from duty from 10-12-1970 to 22-7-1971. The appeal, therefore, must be allowed. The award of the learned Labour Court is set aside."
' The above law laid down by late Chief Justice Inamullah Khan on appeal against an order passed under section 34 of the I.R.O., 1969 which, as it stood then is reproduced below:-- "SECTION 34 ' Any party to an industrial dispute relating to a matter arising out of any right guaranteed or secured to an employer or workman by or under any law for the time being in force or award or settlement may apply to the Labour Court for adjudication of the dispute."
The ratio decidendi will be applicable to the provisions of section 25-A as well as it also does not guarantee or secure the right of wages. Hence, according to him the remedy if any was by way of filing a civil suit.
17. Mr. Ch. Ashraf Khan stated at the Bar that the title of the case relied by him indicates that it was a matter of individual grievance of (Muhammad Zarnan) and perhaps section 25A of I.R.O. Was not available at the time when the grievance application was moved under section 34. It appears that the provisions of sections 34 and 25-A of I.R.O. In para materia have been couched in the same terms for the enforcement of the right guaranteed and secured by an award, settlement or any law.
18. Mr. Salim Raza, Representative for the respondent submits that the written statement signed by Mr. Sheharyar, General Manager Production, on behalf of the appellant cannot be taken into consideration becuase he is neither a notified manager of the factory, nor an attorney. It is also not affirmed before the Oath Commissioner. Mr. Sheharyar also failed to appear as a witness in the case, though admittedly. Mr. Shehryar Saeed was then working in the factory. Reference was made by him to a part of cross-examination of Mr. Riaz Muhammad Khan (page 119 of R&P) in this respect.
19. Mr. Riaz Muhammad Khan has also stated in his cross-examination that he is Manager Industrial Relations. Mr. Raza, therefore, submitted that there is no legal or proper written statement or affidavit in rebuttal of the allegations made by the respondent. He, however, admits that if it is a case of unfair labour practice then the jurisdiction vested in the N.I.R.C. Only. On query by this Tribunal he submitted that no conciliations were initiated by the Area Conciliator. No agreement or settlement was produced in Labour Court.
20. Mr. Ch. Ashraf Khan in reply to the submissions made by Mr. Salim Raza refers to the 1st paragraph of affidavit-in-evidence of Riaz Muhammad Khan (page 105), cross-examination of 2- 2-1999 and also 2 documents R,W.47 and R.W.48 which go to prove that Mr. Riaz Muhammad was a notified Manager as intimated by the employer to the Chief Inspector of Factories. Reference is also made to provisions of section 2(viii)(b) and (e), I.R.O. In this respect.
21. According to Mr. Ch. Ashraf Khan, Mr. Riaz Muhammad Khan comes within the definition of the employer and as such it cannot be asserted by the respondent that there is no legal evidence on record.
22. Mr. Ch. Ashraf. Khan referring to the submissions made by Mr. Salim Raza in relation to section 45 of I.R.O. Submits that the strike in question was not in connection with any pending dispute before the Conciliator as also provided in section 44, therefore, section 45 was not applicable to the appellant. No other point was raised or plea taken before me in these appeals by either party.
23. For the aforesaid discussion, the impugned orders stand set aside and the appeals are allowed.
24. Before parting with the matter, it may be observed that since the matter, relating to sit-in-strike as unfair labour practice is still pending before the learned Member of N.I.R.C., as stated at the Bar by both the parties, this judgment will be subject to the final decision of the N.I.R.C. If it is held by the N.I.R.C., that the sit-in-strike was illegal this judgment will hold good. And if it is held that the sit-in- strike was legal, the respondent workers will be entitled to the consequential relief as awarded by the N.I.R.C.