1985 PLP 884 (PLC)

ABDUL QADEER CHAUDHRY, J.‑The petitioner is a cigarette manu facturing company registered under the Companies Act having its factory in S.I.T.E. Karachi. The Respondent No. 3 by its letter dated 30th December, 1981 raised an industrial dispute against the petitioner by submitting a charter of demands under section 26(1) of the Industrial Relations Ordinance, 1969 (hereafter referred to as the Ordinance). On failure of mutual negotiations the respondent No. 3 served upon the petitioner a strike notice dated 16th January, 1982 under section 26(3) read with section 28 of the Ordinance. In accordance with section 41 of .the Ordinance conciliation proceedings commenced on or about 16th January, 1982. The Conciliator called a number of joint meetings between the petitioner and respondent No. 3 but no settlement could be arrived at within the 14 days' period of notice of strike. The parties continued to agree to extend the period of conciliation from time to time. The Federal Government purporting to act under section 33(1) of the Ordinance by its letter dated 17th June 1982 referred the industrial dispute between the respondent No. 3 and petitioner for adjudication to the Commission (Annexure B‑3). The petitioner appeared before the respondent No. 2 and raised an objection that the reference could not be made to the Com mission. The respondent No. 2 rejected the petitioner's plea of lack of jurisdiction. Thereafter respondent No. 2 called upon the respondent No. 3 to submit a statement of claims in justification of the demands raised by it and the petitioner was directed to submit reply thereto. After the evidence of both the parties was recorded the petitioner was directed by the respondent No. 2 to produce statement showing total impact of the financial demands of each of the last four agreements executed in respect of Karachi Factory between the Management and Union prior to the agreement 25th May, 1980, alongwith the statement of gross and not profits made by the Pakistan Tobacco Company in the periods covering the said agreements. The respondent No. 2 awarded by his Order dated 12th May, 1983 the increase in the total emoluments of the workmen concerned of the petitioner in the following terms: ‑ "I, therefore, hold that notwithstanding the relief of Rs. 40 announced by the Government in July, 1981, the workers are entitled to a minimum financial increase in wages and other facilities which they received under May, 1980 Agreement i.e. Rs. 24 lacs. Keeping this figure in mind I award an increase of 4% in the basic wage, 10% increase in House Rent Allowance and Rs. 12 per month increase in Conveyance Allowance. The total financial impact of these increase should then be deducted from. Rs. 24 lacs and the balance should again be paid to the workers by way of increase in basic wages of the workers. For the purpose of clarification, it is stated that if the above‑awarded increases in basic wages, House Rent Allowance and Conveyance Allowance come to Rs. 17 lacs, it should be deducted from Rs. 24 lacs. The balance of Rs. 7 lacs should be converted into percentage of basic wages so that its direct and indirect impact does not exceed Rs. 7 lacs. Let us assume that Rs. 7 lacs comes to 2% of basic wages. Then the basic wage of the worker should again be increased by another 2%. The other demands are rejected. The award would be in force with effect from 1st January, 1982 for a period of two years." The petitioner being aggrieved by the said award dated 12th May, 1983 filed an appeal before the respondent No. 1, but the respondent No. 1 upheld the above award, hence the present petition.

2. Learned counsel for the petitioner has submitted that reference made to commission under the provisions of the Ordinance was invalid and that the award is invalid as it is based on no evidence.

3. We have heard the learned counsel for the parties. It is contended by the learned counsel that the reference of the industrial dispute between the parties during the pendency of the conciliation proceedings by the Federal Government is bad in law as such dispute could not be referred under section 33(L) of the Ordinance during the conciliation proceedings. It could only be referred if the conciliation proceedings have failed under section 30(5) or before parties had been given the option by the Conciliator to refer the dispute to an Arbitrator under section 31(1) or before the Conciliator having issued a certificate declaring failure of conciliation proceedings under section 32(1) of the Ordinance. The view taken by the respondent No. 2 that the expression "at any time before or after the commencement of strike" occurring in section 33(1) of the Ordinance empowered the Federal Government to refer industrial dispute for adjudi cation during the pendency of the conciliation proceedings as against the expressed language used in the statute. In order to appreciate the contention we have referred to the various provisions of the Ordinance. Section 26 contemplates negotiations relating to differences and disputes. Under section 28 the period of notice of lock‑out or strike given under subsection (3) of section 26 shall be four teen days. Section 29 relates to the conciliation after notice of strike or lock‑out. Section 30 speaks of proceedings before Conciliator. According to section 30(5) of the, Ordinance if no settlement is arrived at within the period of the notice or strike or lock‑out the conciliation proceedings may be continued for such further period as may be agreed upon by the parties. Under section 31(1) if the conciliation fails, the Conciliator shall try to persuade the parties to agree to refer the dispute to an Arbitrator. In case the parties agree, they shall make a joint request in writing for reference of dispute to an Arbitrator agreed upon by them. Under section 32 if no settlement is arrived at during the course of conciliation proceedings and the parties to the dispute do not agree to refer it to an Arbitrator under section 31 the workmen may go on strike. Under subsection (2) of sec tion 32 where a strike or lock‑out lasts for more than 30 days the Federal Government if it relates to a dispute which the Commission is competent to adjudicate and determine, and the Provincial Government if it relates to any other dispute, may by order in writing, prohibit the strike or lock out. Provided that the Federal Government may, with respect to a strike or lock‑out relating to a dispute which the Commission is competent to adjudicate and determine by order in writing prohibit a strike or lock‑out under subsection (3) in case the Federal Government or the Provincial Government prohibits a strike or lock‑out it shall forthwith refer the dis pute to the Commission or as the case may be to the Labour Court. Under section 33 of the Ordinance the Federal Government in the case of strike or lock out relating to an industrial dispute of national importance or an industrial dispute in respect of any of the public utility services which the commission is competent to adjudicate and determine, may by order in writing prohibit a strike or lock‑out at any time before or after the commencement of strike or lock‑out. If such a nation is taken by the Federal Government the provisions of subsections (3), (4) and (5) to section 32 shall also apply to an order made under subsection 1 above. The learned counsel for the respondent has referred to section 41 of the Ordinance which provides that the conciliation proceedings shall be deemed to be commenced on the date on which a notice of strike or lock‑out is received by the conciliator under section

28. Under subsection 2(b) of section 411 the conciliation shall be deemed to have concluded where no settlement is arrived at on the date on which the period of notice of strike or lock‑out expires. The notice of strike is dated 16th January, 1982. The period baa expired on 31st January, 1982. Thus there was no conciliation proceedings pending on that date and the irresistible conclusion would be that the conciliation had failed. The reference was made by the Federal Govern ment on 17th July, 1982 therefore cumulative effect of sections 32, 33 and 41 was that it was open to the union to go on strike and as there was as embargo under Martial Law Regulation No. 23 dated 19th September, 1977 to go on strike the respondent No. 3 could not go on strike. Though the parties mutually agreed to proceed with the conciliation proceedings but the consent of the parties cannot change the position of law. In para. 3 of the Appeal filed by the petitioner before the Full Bench of the National Industrial Relations Commission, it has been stated that the parties agreed to meet for further negotiations before the conciliator on 30th June, 1982 when the conciliator had to declare the conciliation proceedings as closed because the Federal Government had already referred on 17th June, 1982 the industrial dispute between the parties for adjudication to the National Industrial Relations Commission. So also the petitioner moved legal objection on their behalf before the National Industrial Relations Com mission wherein it is stated that the company already gives to its workmen .wages and other benefits which in overall terms are much higher than those being paid by other employers and since the Union failed to brine down its demands to reasonable or negotiable levels, the conciliation pro ceedings had to be continued over a long period, especially in view of the fact that the Company over the last several years has not been earning more than 8‑6 per cent per annum on the average over the total capita employed during the relevant years. These facts so clearly indicate that the conciliation before the conciliator had failed and that the Federal Government had exercised its powers under the Ordinance, which in the circumstances of the case bad the authority. The question of issuance of I a failure certificate does not arise.

4. The learned counsel for the petitioner has referred to the cases of Employees' Union v. Monnoo Motors and another (P L D 1975 Kar. 811), and Brooke Bond (Pakistan) Limited v. Conciliator Appointed by the Government of Sind and 6 others (P L D 1977 S C 237) but, the two cases are distinguishable as in the instant case the union could not go on strike in view of the Martial Law Regulation. Similarly in the Supreme Court case it has been observed that parties with out complying with requirements of sections 28 and 29 not having capacity to enter upon reference and confer jurisdiction on Arbitrator in agreeing to his appointment as such under section 31 appointment of Arbitrator is void ab initio and Arbitrator's award a nullity in eye of law. In the instant case the reference to the Commission was made by the Federal Government which the Government is competent to appoint under the provisions of law and, therefore, the contention of the learned counsel that the matter could be referred to the Arbitrator has no substance. The next contention of the learned counsel for the petitioner is that the reference of the dispute by the Federal Government to the N. I. R. C. is bad in law because the industrial dispute relates to the petitioner's Karachi Factory, only and apply to the 1/4th of the total strength of the pe titioner's workmen and, therefore, the dispute is not of national importance as envisaged under section, 33 of the Ordinance. This contention has also no force. Such objection was taken before the respondent No. 2 and he has repelled the objection for the sound reason. According to him if the factory stopped working due to strike then there would be loss of huge amount collected by the Government by way of taxes. The Government considered it a dispute of national importance. There is no reply to this finding which is reasonable in the circumstances of the case. It is next contended that the awards of respondents 1 and 2 are not based on any evidence. In this respect it is stated that the respondents could have awarded the increase in basic wages, House Rent Allowance and Conveyance Allowance if the petitioner was not paying to its workers total emoluments equal to or more than its competitors namely tobacco companies in the market. This objection was also repelled by the respon dents 2 and 3 and they have taken into consideration the income and profits earned by the petitioner in various years. They have also compared the income and profit of the petitioner with the other companies who are manufacturing cigarettes. The consumer price index was also considered by the respondents 2 and

3. The respondent No. 3 examined as many as 12 witnesses and produced various documents in support of their claim. The petitioner did not produce any evidence. It was considered that in the field of cigarette manufacturing industry there was no other concern which could equitably be compared with the company of the petitioner. The factum of general rises in the prices of the commodities of daily use was considered by the respondents. The joint accounts of various units of the petitioner Company operating in various places were considered. It is further observed that accounts of Karachi factory were available with the company but they failed to produce the same before the Commission. The balance‑sheets for the years 1980 to 1982 in the terms of gross profits and net profits were considered by the official respondents. It was further observed by respondent No. 2 that increase in gross profit to some extent can be attributed to the workers of the Karachi factory. The Consumers Price Index was considered by the respondent No. 2 and it was observed that since 1979‑80 there has been about 33% rise in consumer's price index. The appeal against the decision of respondent No. 2 was dismissed by the respondent No.

3. All the objections were taken into consideration and rejected by the respondent No.

3. It was also considered that the award which is to expire on 31st December, 1983 has hardy two more weeks of its life. Whatever the difficulties they have already, been faced it would hardly avail any thing of merely on this ground a new formula is prescribed. Learned counsel for the appellant has referred to the case of William Sons (India) Private Limited v. Their Workmen (1962 P U C 1401), wherein it has been observed that Tribunal would not be justified in basing its award on the wages prevalent in a much higher concern with a much bigger capital and with a much larger business spread all over the country. This case is, distinguishable as the finding of the respondent is that the information gleaned from the record before the learned Senior Member is illustrative of the wide disparity between the appellant and the rest of the cigarette manufacturing factories at Karachi. The appellant company could not thus be validly compared with any of them. The appellant Company was a class by itself. Its wages and facilities to its employees could not be compared with other comparatively small establishments. Comparative statement has been given in the order impugned in this petition and such statement has not been challenged. The contention that the Company was already paying more wages to its workers and, therefore, further increase should not be made, cannot be accepted as it would result in wage freeze in the company till uniform wage rates come to prevail in the cigarette manufacturing industry. This observation of the respondent is not open to exception. All the facts were considered by the respondents. Learned counsel for the petitioner has referred to 1961 P L C 991, 1963 P L C 71, 1982 P L C 250, 1966 P L C 281 and some other cases. Some of these cases have already been quoted before the respondent No.

3. These cases were considered and distinguished by him.

5. It is also to be noted that subsequent to the award, the Company voluntarily entered into settlement and they agreed to increase the wages. This is another circumstances on which the petition has to be dismissed. The respondents 1 and 2 has the jurisdiction in the matter. They have, decided the matter in accordance with law.. The petitioner failed to produce any evidence. The conclusions drawn by the official respondents 1 and 2 are not against the accepted principles of law and simply because another view may be possible cannot be a ground for entertaining a constitutional petition.

6. The upshot of the above discussion is that there is no force in this petition. The same stands dismissed leaving the parties to bear. their own costs. A.A.