1976 PLP 497 (PLC)

Ss. 32(1-A) & 37 - Appeal - Impugned order indicating' demand withdrawn by Union-Union, in circumstances; held, cannot: be allow ed re-agitate demand in appeal. A. Majeed for Appellant. H. A. Jafferi for Respondent. Date of bearing: 17th March 1976. This is an appeal under section 30 (7) of the Industrial Dispute, Ordinance, against the award of the Labour Court in relation to the demands which had been rejected.

2. Adam Tea Workers' Union served a Charter of 24 demands by a Notice dated 3rd May, 1972 as required by section 26 of the Industrial, Disputes Ordinance. The efforts to settle the dispute failed and therefore, a strike notice dated 13th May 1972 was served by the Union. Conciliation proceedings were resumed but there was no settlement. Consequently, the, Union made in application under section 32 (1-A),

1. R. O. to the Labour Court on 29th May 1972.

3. A Reply Statement was filed resisting the demands on various grounds.

4. Parties filed affidavits. The witnesses produced by the parties were cross-examined. On the assessment of the evidence the learned labour Court, rejected some of the demands. Aggrieved by the rejection of the demands the Union filed the present appeal.

5. At the time of arguments the learned representative for the Union. pressed Demands Nos. 12, 14 15, 16 and 18 and gave up the contest relating to the remaining demands which had been rejected by the Labour Court.

6. Now I proceed to take up the demands. Dealing with Demand No. 12 which is with regard to the payment of wages in lieu of weekly' holidays allowed to the workers. Weekly holidays are compulsory and are allowed to the workers under law. Admittedly, respondent's concern is a factory and, therefore, Factories Act, 1934 is applicable. It has been clearly' laid down by section 35 of the Factories Act that no daily workers should be allowed or required to work in a factory on a Sunday or any other day in, lieu thereof as laid down therein. There is no difficulty with regard to the workers who are engaged on monthly basis and are paid accordingly, as in their case the monthly payment includes the pay for Sundays. But the difficulty arises with regard to the Daily Rated or Piece Rated Workers. There is no Provision in the Factories Act as to whether the workers should' be allowed wages for the aforesaid holidays.

7. The learred Representative for the Union relied upon section 6 (3) of the West Pakistan Shops & Establishments Ordinance, 1969 which lays down that a workman employed on daily wages shall be paid hi; wage's for the holiday and where an employee is paid on piece-rate, he shall receive for the holiday the average of the wages he received during the week. Relying upon this provision it was urged that the establishment of the respondent's factory was an industrial establishment as defined by section 2 (o).

8. Unfortunately, it escaped the attention of the learned Representative that the Industrial Establishment as defined excludes a factory. In view of this, the Shops & Establishments Ordinance does not apply. This, however, does not conclude the matter.

9. The weekly holidays is, in law, a compulsory holiday and it could not be intention of the Legislature to force a compulsory holiday on the' workers without payment. In this connection reference be made to Standing Order No. 8 of the West Pakistan (Standing Orders) Ordinance, 1969 which clearly lays down that holidays and leaves with pay shall be allowed. Thus this provision of law covers the present case. I am, therefore, of the view that the Labour Court wrongly disallowed wages for the holidays. The view that I have taken is supported by the decision of my learned predecessor in the case of Premier Tobacco Company Ltd., Mardan v. Premier Tobacco Workers' Union (1970 P L C 126) and an unreported decision of the High Court of Sind & Baluchistan, Karachi, in the case of Messrs Al-Murtuza Textile Mills Ltd., S. I. T. E.. Hyderabad v. Messrs Al Muhammad Ibrahim and others, Miscellaneous Appeal No. 10 of 1967, decided en 2nd December. 1970. (Certified copy of which has been produced before me).

10. On the other hand the learned Representative for the respondent urged that there was constructive payment for weekly holidays as the daily wages for the workmen were fixed by dividing all the components of the monthly scale of pay and allowance by 26 days, so that the workmen received as daily wages was really 1/26th of the wages for 30 days. This argument was also raised before the Supreme Court of India in the case of Workmen of Bombay Port Trust v. Trustees of the Port of Bombay and another (1962 P L C 222) and it was rejected. It was observed that the fallacy in this argument was that it ignored the essential fact that once the daily wage was fixed at a certain figure it no longer retained its character of being 1/26th of the monthly wages and, however arrived at, daily wage was a daily wage and it was wrong to regard it as a certain fraction of the monthly wage.

11. In result I hold that the Daily Rated workers and Piece Rated Workers are entitled to wages for weekly holidays.

12. Demand No. 14 relates to the introduction of pay scales of respective workers. Tae Labour Court rejected this demand on the ground that the financial position of the factory did not justify increase in pay for the intro duction of pay scales. I find no reason to allow the demand. It is prima rily for the Management to decide as to how it should get the work done i. e., on Daily Rate or Piece Rate or Monthly Salary. The Management c is presumed to know how the work can be performed most conveniently beneficially and economically.

13. Demand No. 15 relates to the establishment of Provident Fund Scheme: Admittedly, the Gratuity Scheme is in force. No justification-l has been provided to introduce Provident Fund Scheme.

14. Demand No. 16 relates to the Payment of Wages for 8 months to those workers who had been dismissed from service on 28th April '1971' and were subsequently re-instated under the Orders of Government. The wages are claimed for the interim period. The Labour Court rejected this claim on the ground that this right was guaranteed to the workers and they should have preceded under section 34 (1). I am unable to agree with the learned Presiding Officer, as the question for the payment of wages for the period when the workers were not in service could not be said to be guaranteed by any law, but it was the question to be considered depending upon the circumstances relating to the dismissal and re-instate ment. The second ground, which found favour with the learned Presiding officer, is that since the demand was covered by section 34 it could not be raised as an industrial dispute. In other words he intended to say that no industrial dispute could be raised with regard to a demand, which could be agitated under any provision of law. This has also no force, as there is no bar to raise an industrial dispute except with regard to rights, which are guaranteed or secured by any Award, Settlement or under any law other than Industrial Relations Ordinance. The last ground relied upon by the learned Labour Court is that the demand did not mention the exact amount claimed by the workers and for this reliance was placed upon the decision of my learned predecessor, reported in 1972 P L C

5. To this, I agree. Although, admitted there were 83 workers and out of them 53 were discharged but the names of those who had been discharged had not been disclosed either in the charter of demands or in the statement of claim. So the demand was rightly dis allowed.

15. Demand No. 18 relates to the grant of house rent allowance at the rate of Rs. 25 per month. The impugned Order shows that this demand was withdrawn by the Union. This is also borne out by the notices of arguments prepared by the learned Presiding Officer. The Union, therefore, cannot be allowed to re agitate it in appeal.

16. In result I allow Demand No. 12 and Award of the Labour Court regarding the remaining is maintained. The appeal stands disposed of accordingly.