' This is an appeal against an award dated 15-2-1977 of Punjab Labour Court No, 4 (Now No, 3), Multan.
2. C. B. A. Union of Multan Cotton Industries raised three industrial disputes and when bilateral negotiations and conciliation proceedings failed, they filed three separate petitions under section 32(1-A) of Industrial Relations Ordinance, 1969 before the Labour Court for adjudication of the demands raised therein. The demand notice in these three petitions were dated 5-5-1975, 2-10- 1975 and 6-12-1975. In these notices various demands were raised. Thereafter, negotiations between the parties again commenced and continued till 29-1-1977, when the Union decided not to press any demand, except that of bonus demanded by it vide Demand No, 2 of notice dated 2-1C- 1975 and Demand No, 1 of notice dated 3-12-1975 in the petitions Nos, 147/75 and 18/75, respectively.
The consolidated demand is that the Union demanded bonus equal to three months' pay for the year 1973-74 and three and half months' pay for the year 1974-75 as given to the workers of Colony Textile Mills Limited. All these three petitions were consolidated and disposed of by one award in the following terms :- "In the result the workers of the Multan Cotton Industries, Multan, are directed to be given bonus for the year 1973-74 and 1974.75 in the amount equal to that given to the workers of the Colony Textile Mills Limited, Multan."
3. Aggrieved by the above award, the Management, Multan Cotton Industries, Multan, appellant has preferred this appeal.
4. The learned counsel for the appellant contended (0 That Colony Textile Mills Limited and Multan Cotton Industries are two different concerns having different Management with different accounts of profit and loss, that there are two separate C. B. A.
Unions in these concerns and their workers are not inter-transferable, that the factories have different premises lying about three miles apart from each other and that as Multan Cotton Industries has been running at a loss with no profit for the last three years, no question of the award of bonus to its workers could arise.
(10 That in any case the respondent-Union could not again raise a demand for bonus for the year 1973-74 in view of a previous settlement nth. E-4 dated 16-4-1975 arrived at between the Management and the then C. B. A. Union of Multan Cotton Industries.
5. The learned counsel for the respondent, on the other hand, contended that as Multan Cotton Industries is an integral part of the Colony Textile Mills Limited, Multan and operating as one of its Khatas, its workers must be treated at par regarding the right of bonus alongwith the workers of the other Khatas of the Colony Textile Mills Ltd.
Contention No, 1 of the appellant In the instant case the factories are situated at a distance of about three miles away from each other. It is well-established that if in their relations, 4 they constitute one integrated whole the establishment is one. In this connection I rely on the judgment of the Supreme Court of India in the case, The Associated Cement Companies Limited and another v. Their Workmen wherein it was observed :- "The Act not having prescribed any specific tests for determining what is one establishment, in considering the question whether a cement factory and the adjacent limestone querry supplying limestone to it, are one establishment, one must fall back on such consideration as if the ordinary industrial or business sense determine the unity of an industrial establishment, having regard no doubt to the scheme and object of the Industrial Disputes Act and, other relevant provisions of the Mines Act, 1952, or the Factories Act, 1948. It is, perhaps, impossible to lay down any one test as an absolute and invariable test for all cases. The real purpose of those tests is to find out the true relation between the parts, branches, units etc. If in their relations, they constitute one integrated whole, the establishment is one; if on the contrary they do not constitute one integrated whole, each unit is then a separate unit. How the relations between the units will be judged must depend on the facts proved, having regard to the scheme and object of the statute which gives the right or unemployment compensation and also prescribes a disqualification therefor. Thus, in one case the unity of ownership, Management and control may be the important tests; in another case functional integrality or general unity may be important test and in still another case, the important test may be the unity of employment. Indeed, in a large number of cases several tests may fall for consideration at the same time. The difficulty of applying these tests arises because of the complexities of modern industrial organisation; many enterprises may have functional integrity between factories which are separately owned ; same may be integrated in part with units or factories having the same ownership and in part with factories or plants which are independently owned. In the midst of all these complexities it may be difficult to discover the real thread of unity."
6. The admitted fact, in the present case is that both Multan Cotton Industries and Colony Textile Mills Limited have been separately registered under the Factories Act as stated by Mohammad Libel (R. W. 1) Superintendent of the office of Registrar, Trade Unions, Multan. He also stated that according to the notice of occupation, the ocupier of Multan Cotton Industries, Multan was Pir Monawar Shah and its Manager was Khawaja Mohammad Saleem and that the occupier of Colony Textile Mills Limited, according to the notice of occupation, was Syed Abid Hussain and the manager of the factory was Chaudhry Mukhtar Ahmed. He further stated that Multan Cotton Industries was situated in the Industrial Estate, Multan, while Colony Textile Mills Limited was situated in Ismailabad near Railway Station, Muzaffarabad. Further I find that the workers of both1 the concerns are not inter-transferable and they have different C. B. A. Unions and that Colony Textile Mills Limited is registered under the Companies Act whereas the Multan Cotton Industries is not so registered. This is so because Multan Cotton Industries is not a limited concern and, therefore, could not have been registered under the Companies Act. There are two separate workers participation funds of the two concerns. The auditing of the Multan Cotton Industries is directed by its Management and not by the Management of Colony Textile Mills Limited, Multan Cotton Industries is a division of Colony Textile Mills Limited but both the factories are independent and having separate registration under the Factories Act. It is no doubt true that the Board of Directors of both the concerns is the same but this fact alone cannot make them into one establishment. The conditions of service of the workers of both the concerns are also different.
7. From the above it is clear that though there is unity of ownership but there is no unity of finance and employment, no unity of supervision and control and no unity of labour and conditions of service of workmen.
8. Applying the tests as laid down in the authority quoted above, I have come to t be conclusion that Multan Cotton Industries and Colony Textile Mills Limited are not one establishment.
9. The learned counsel for the respondent, however, referred to the 27th Annual Profit Report of 1975 Exh. P-1, published by the Management of Colony Textile Mills Limited, whereby according to the learned counsel, Multan Cotton Industries had been shown as a part of the Colony Textile Mills Limited. Under para, 30 at page 30 of the Report the sales of the two concerns had been made together and consolidated into one statement, paras. 21, 21-A, 23, 25 and 26 similarly dealt with the consolidated statement of cost of sales, cost of goods manufactured, selling and distribution expenses and the workers' welfare funds of both the concerns together. Under para. 21-B at page 23 of the Report consolidated statement regarding the salarie9, wages and benefits of the employees of both the concerns have been given jointly. Since Multan Cotton Industries was a division of Colony Textile Mills Limited the profits and losses, sales, advances, debts, liabilities of all the projects, division units of limited company had to be consolidated in view of section 11 of the Security and Exchange Ordinance, 196) and the Companies Act, 1913. On the contrary I find at pages 23, 24 and 27 of the 27th Annual Profit Report of 1975 the administrative expenses, selling and distribution expenses, financial expenses and net profit of the two concerns have been shown separately. This was done, because under the law it could be done.
10. The learned counsel for the respondent, however, relied on the judgment of the Supreme Court of Pakistan in the case, of Pakistan Paroleum Workers' Federation v. Burmah-Shell Oil Storage and Distributing Company of Pakistan Limited, Karachi and 7 others. The Pakistan Petroleum Limited one of the respondents in that case had operations all over the country and in some places there were profits earned and in some places there were no profits. It was observed that the workers were also a part of the whole concern and they should not ask that the workers of the concern should be divided up into pockets so that these engaged in a particular location may be entitled to bonus from profits there earned, while the rest have to go without bonus since not only is there no profit but money is being spent in vast sums without result. The facts of the above case are distinguishable from the facts of the instant case and, therefore, this ruling will have no application.
11. In view of the above, the contention of the learned counsel for the respondent has no force.
Cortsntfon No, 2 of the appellant
12. From the perusal of the record I find that the C. B. A. Union of Multan Cotton Industries issued demand notice Exh. R-3, dated 3-1-1975 to the Management of Multan Cotton Industries, in which one of the demands was for bonus for the year 1973-74. When the industrial dispute was pending before the Labour Court, a settlement Exh. R-4 dated 16-4-1975 was arrived at between the Management and the C. B. A. Union, in which the Management had agreed to grant an ex gratia bonus equal to one month's salary to all the employees for the year 1973-74. As a result thereof the2 petition filed by the C.B.A. Union under section 32(1-A) of Industrial Relations Ordinance, 1969 was held to be deemed to have been withdrawn and the industrial dispute settled between the parties.
The petition was, therefore, dismissed, as withdrawn vide order dated 8-5-1975 by the same Labour Court, which dealt with the instant case. Unfortunately, the order of the Labour Court dated 8-5- 1975 was not exhibited in the present proceedings. Under Order XLI, rule 27 of Code of Civil Procedure, additional evidence can be allowed in appeal if the appellate Court requires it to pronounce the judgment or for any other substantial cause. In my view the order dated 8-5-1975 of the Labour Court was very relevant and it should have been exhibited because the demand notice and the settlement to which it refers have already been exhibited. In any case I require it to pronounce the judgment. I, accordingly, allowed a certified copy of the said order to be brought on the record of the case as additional evidence. From the above it is clear that the Union could not have again raised the same demand for bonus for the year 1973-74, but it could have raised the demand for bonus for the year 1974-75.
13. Now the point for determination is as to whether the Management of the Multan Cotton Industries is in a position to pay the bonus for the year 1974-75,
14. According to Exh. R-2, a photo copy of the certificate of Chartered Accountants Messrs Hamid Chaudhry & Company, I find that the Multan Cotton Industries suffered a loss of Rs, 58,455 in the financial year 1971-72, Rs, 12,53,617 in the financial year 1972-73, Rs, 78,85,117 in the financial year 1973.74 and Rs, 29,45,620 in the financial year 1974-75.
15. Thus it is dear that from its very inception the company has been running at a loss. There is no reason to doubt the veracity of the certificate issued by the Chartered Mcountants. Under these circumstances, there can be no bonus as demanded by the respondent-Union.
16. I, accordingly, accept the appeal, set aside the award of the Labour Court and amiss the petition for the respondent Union filed under section 32(1-A) of Industrial Relations Ordinance, 1969. AIR 1960 SC 56 PLD 1961 SC 479