P L D 1969 Dacca 636 (PLP)

A. H. KHAN, J.‑This appeal by Azad and Publications Ltd. is directed against the award of the First Labour Court, East Pakistan, in Labour Dispute Case No. 24 of 1967, dated the 30th March 1968. The dispute was raised by the respondent Azad Press Karmachari Union which is a Trade Union of the workers employed in the Azad Press of the appellant, in respect of as many as 14 demands. The appeal has been preferred against the Award in respect of Demands Nos. 5, 7 and

14. Demand No. 5 is for payment of arrears of wages said to have been wrongfully withheld; Demand No. 7 is for Dearness Allowance at the rate of 25 percent for Junior Group and 20 percent for Senior Group, while Demand No. 14 is for re‑instatement in service of 3 workmen namely Ashrafuddin Ahmed, Abdul Mannan Bhuiya and Hossain Ahmed. The learned Labour Court on a consideration of the evidence on record and facts and circumstances of the case passed an Award in respect of the above demands among others. With regard to the award in respect of Demand No. 5 Mr. Nurullah, the learned Advocate appearing for the appellant has contended that as the demand as made in the petition under section 6 of the Labour Disputes Act is vague no specific case of withholding of increment of pay being mentioned therein, learned Court was not justified in making an award in respect of the demand. It appears that the learned Court below made the Award on the evidence of P. W. 1 Seraj Khan at the time of the hearing of the case to the effect that the general increment of the staff was stopped since 1966 because the Union filed the Labour Dispute Case No. 28 of 1965. In course of hearing of the appeal when it was put to the learned Advocate for the appellants, that apart from any technical defect in framing Demand No. 5, why should the Management withhold increment of wages of the worker, Mr. Nurullah learned Advocate for the appellants took the only reasonable attitude expected in the circumstances from an employer and submitted that if any increment has not been paid whether in general or in the case of any particular worker, the same shall be paid within a reasonable time, we accordingly direct that the Management shall pay all arrears of increment of wages from the date such increment fell due. But if in any individual case the increment has been validly withheld by way of punishment for any specified period, the increment shall be paid from the date of expiry of that period. The increment shall be paid within two months from the date of receipt of this judgment and the record in the Court below. Regarding the award in respect of Demand No. 7 Mr. Nurullah, the learned Advocate for the appellant has contended that the learned Labour Court was not justified in allowing the Dearness Allowance at the rate of 17 % over the basic pay of all the three categories of workers, simply on the finding that the existing pay scale was fixed in the year 1959 and that cost of living has considerably increased since then. He has contended that as observed by learned Court itself, there is no evidence that the other newspaper establishments grant any Dearness Allowance to the employees nor is there any evidence to show that the appellants have financial capacity to pay any dearness allowance and in the circumstances the learned Labour Court was not justified in granting dearness allowance at 171 per cent. In this connection Mr. Nurullah has invited our attention to the award in respect of the Demand No. 6 for payment of bonus for the year 1961 to 1965 which was rejected on the ground that there was no sufficient material before the Court to determine the exact financial position of the appellants. In this connection it is necessary to refer to the Demand No. 4 regarding fixing higher scales of pay. The existing pay scale since 1959 are as follows: ‑ Rs. (1) Junior 75‑5‑125 (2) Senior 130‑10‑250 The scale that was demanded is as follows: (i) Junior (A) 100‑5‑150 (ii) Junior (B) 125‑5‑175 (iii) Senior 200‑15‑350 In respect of the demand no documentary evidence was filed by either party. (Vide 84 of the paper book). P. W. 1 Seraj Khan has stated in his evidence that the income of the appellant has appreciably increased after 1959 and that the circulation of the daily 'Azad' which was 13,000 in 1959 has increased to 25 thousand and also that the price of each copy of the paper in 1959 was two annas (12 paisa) and the price has been increased to 20 paisa since 1964. He has also deposed that the volume of advertisement has also appreciably increased and that since the publication of the `Ittefaq' was closed, the advertise ment in the Azad have been covering 5 pages whereas previously it used to cover only one and half pages of the paper. On the basis of the evidence it was contended before the learned Labour Court that the Income of the Second Party is sufficient to meet the demand for increased pay scale. On the other hand, the demand was opposed by the Management on the ground (which was the ground taken in the written statement) that while fixing the pay scale in 1959, the question of cost of living was taken into consideration and that further increased pay scale was not justified in view of the economic condition of the second party Management. The first party Union could not produce any documentary evidence to show the financial condition of the appellant. The Management also did riot produce any relevant papers in support of the contention that their financial position, did not justify any increase in the pay scales. And the plea for non‑production of papers advanced by the. appellant is that all their papers were seized in connection with a criminal case about 3 years previous to the date of the hearing of the case (December 1965). I shall comment on this plea hereafter. The learned Labour Court did not consider the increase in the circulation of the paper and increase in its price and volume of advertisement of any significance because "this necessarily entails increased costs." The learned Chairman goes on to observe: "One of the reason for increase in the volume of advertise ment is, accordingly to the evidence of P. W. 1 Seraj Khan, the closure of the Ittefaq. This apparently is a temporary phase and as such this cannot be a criterion for a demand for increased pay scale. Then again it is admitted in cross‑examination of P. W. 1 Seraj Khan that printing of the daily Azad is done partly in the Azad Press and partly in the Pakistan Observer Press. This necessarily causes higher expenses to run the daily issue." Now, the observation of the learned Court that closure of Ittefaq is a temporarily phase is based on no evidence. The Ittefaq was closed as stated by P. W. 1, sometime in June 1966 and there is nothing to show that it has not been closed for good. As for the fact that part of the Azad is printed in the office of the Observer, there is nothing to show that this practice has not been in existence for a long time. The learned Labour Court in the concluding portion of the judgment in respect of the demand for increment of scales of pay observed as follows :‑ "Whatever might be the reason for non‑production of the connected papers, the fact remains that there is no sufficient material before us to determine as to the exact financial position of the second party. In such circumstances it is not only difficult but at the same time unsafe to concede to the demand of the first party for increased pay scale. I am therefore not inclined to make any alteration in the existing pay scale. So, the demand‑ In this respect is rejected." It will thus appear from the decision of the learned Court below in respect of the demand regarding increment of pay scale and granting of bonus that it felt it unsafe to grant these demands in view of the fact that there was no sufficient evidence regarding the financial condition of the appellant. Coming to the demand regarding the dearness allowance the learned Court after commenting that there was no evidence whether there was any Dearness Allowance in the other newspaper establishments has observed "Even if there is no evidence on the point, the fact remains that the existing pay scale was fixed in the year 1959 and it is an undisputed fact that the cost of living has considerably increased gradually and the present cost of living is undoubtedly higher than it was in the year 1959. So, it is, no argument that in fixing the existing pay scale in the year 1959, the question of higher cost of living was taken into considera tion. Evidently the above consideration, if at all made, was done in consideration of the then existing living cost. The same condition no longer exists, so under the changed circum stances as prevails now long after 9 years, the workers can legitimately claim dearness allowance because of the present high cost of living. Accordingly I propose dearness allowance at 17 % on the basic pay to all the three categories of workers of the Second Party, namely, the Compositors, Machinemen and the Binders, and this to my mind, will meet the ends of justice." Mr. Nurullah has contended that the learned trial Court was not justified in granting the dearness allowance without taking into consideration the financial capacity of the appellant. Mr. Muzammel Hoque, learned Advocate for the respondent Union, has contended that to the written statement in respect of this demand no defence was taken that the Management has no capacity to pay the dearness allowance, and this has been countered by Mr. Nurullah by contending that the financial inability of the appellant has been pleaded in the defence regarding the demands for Increment of Pay Scale and for Annual Bonus. Now, apart from nice technicalities, the question is, have the appellant's capacity to pay the dearness allowance as awarded? It was the duty of the Management to produce the relevant account books and balance‑sheets to show their real financial position. Neither the Manager nor any of the Directors cared to appear and depose in the case. The only witness examined by the Management A. R. Khan, the Foreman, did not speak a word about the financial position of the appellants, though he deposed that the relevant papers were seized in a criminal case, he admitted in the next breath that he did not know if those papers were returned or not, and in his cross‑examination he stated that he could not give an account of the papers seized by the Police. On the other hand, P. W. 1 has deposed as already stated that sale of the Azad had increased from 13 thousand to 25 thousand and price has been raised from 12 paisa and volume of advertisements has also increased from 1 pages to 5 pages. In view of this evidence and in view of the fact that the manager did not come and give evidence in the case and no account books and balance‑sheets were produced for any of the relevant years we are inclined to hold that the appellants have the capacity to pay the Dearness Allowance at 17 % allowed by the Court below. From the concurrent advice of the two Members it appears that in fixing this rate the learned Chairman was guided by the opinion of the two members who have also given their reasons for their advice for fixing the rate at 17 % of the basic wages. The evidence of P. W. 1 already referred to shows that the sale of the paper has gone up in the ratio of 13 to 25 and its price in the ratio of 12 to 20 and volume of advertisement, in the ratio of 11 to

5. We find no reason to reject this evidence specially when no rebutting evidence has been adduced by the Management. We therefore find that the appellants are in a position to pay the dearness allowance at 17 % over the basic pay, as granted by the Court below. We therefore find no reason to interfere with the award of the learned lower Court in respect of the demand for the dearness allowance. We now come to the demand regarding the re‑instatement of Ashrafuddin Ahmed, M. A. Mannan Bhuiya and Hasan Ahmed, Ashrafuddin Ahmed was the Secretary and, M. A. Mannan Bhuiya was the treasurer, while Hasan Ahmed was an ordinary member of the respondent Union. Their services were purported to be terminated by three separate orders passed on 1st June 1965, (Exhs. 6(a) to 6(c)). The termination of the first was to take effect from that very day and that of the other two from the following day. The case of the Union is that these terminations are mala fide and by way of victimisation for their Trade Union activities and in fact they were dismissals in the cloak of termination of service. In support of this contention evidence has been adduced that Ashrafuddin served as compositor for 20 years and he was General Secretary of the Union at the time of termination and had also been all along a Member of the Executive Committee of the Union except for one year. He has deposed that the relationship between the Management and the Union was bad and that on his becoming General Secretary in 1964 he advocated the cause of workers and placed before the authority various demands for which the Management became hostile towards him and was on the look out to victimise him. P. W. 4 M. A. Mannan ‑ has deposed that he was senior compositor for 10 years before the termination of his service and he was the treasurer of the Union. He has stated, inter alia, that the Management wanted one Seraj Khan a man of their choice to be elected as General Secretary and as he opposed it the Management out of grudge transferred him to a Daily News Section where he had to discharge night duty though he had been working before this in Job Section for 10 years where he had to work during the day time. He has further deposed that in March 1965 the Management succeeded in getting Seraj Khan elected but he could not continue for long and he had to resign subsequently. He has also stated in his cross‑examination that Ashrafuddin Ahmed and Hasan Ahmed were also with him in opposing the election of Seraj Khan as Secretary of the Union. The third worker whose services were also terminated is Hasan Ahmed. He has deposed inter alia that his services were terminated for his Trade Union activities. The immediate cause for the terminations of the services of the three workers according to P. W. 4 is that at the instance of the Management, on the 15th of May 1965, when pay for the month of April, was disbursed each worker was paid 10 rupees less than the amount of his actual pay with the promise that the balance would be paid on the following day, on the plea that there was shortage of fund. But the Management did not keep their promise and at the request of the workers Ashrafuddin Ahmed, General Secretary, Mannan Bhuiya, Treasurer, .and Hasan Ahmed and two or three other workers went on a deputation on the 31st of May 1965, and met the manager and pressed the worker's demand for payment of the amount of salary withheld, but the Manager was adament in his refusal to make the payment and there was an altercation between the Manager and the deputationists and thereupon the Manager threatened them, and on the next day he terminated service of the three workers. The above is the substance of the evidence given by P. W. 4 Mannan Bhuiya before the Court. He is the only witness regarding the incident of 15th May. In their own evidence P. W. 3 Ashrafuddin Ahmed and P. W. 5 Hasan Ahmed have stated that they were at home on leave on the above date P. W. 3 has stated that on receipt of a telegram from the Union he returned to Dacca on the 20th or 21st May and Seraj Khan was then the Secretary but he resigned and the witness (P. W. 3) was elected the General Secretary on the 27th May 1965, and on the 31st May he led the deputation demanding the payment of Rs. 10 per head which had been withheld. His further evidence is the same as that of P. W. 4 Mannan Bhuiya, P. W. 5 Hasan Ahmed has stated inter alia that he was in service for about 12 years and that on 16th May 1965, he was paid his salary and Rs. 10 withheld and the Foreman A. R. Khan, the Disbursing Officer, told him that he would make up the deficiency within a day or two. He has further stated that the deficit amount was not paid and that he along with others met the Manager on a deputation on the 1st of May but the Manager did not listen to their demand, and it was after this that he got the letter of termination of service. There was no cross -examination of any of the P. Ws. regarding the deduction of Rs. 10 and deputation to the Manager demanding payment of the deficit amounts. The only witness examined by the Manage ment, A. R. Khan however, has stated that there was no deduction from pay and that he does not know of any deputation to the Manager. Mr. Nurullah the learned Advocate for the appellant, has drawn our attention to the admission of P. W. 5 Hasan Ahmed in cross‑examination that he signed the Register admitting full payment. Mr. Nurullah has also drawn our attention to the certain discrepancies in the evidence of P. Ws. As for example, while P. W. 1 has stated that the Manager induced the Union Secretary Ashrafuddin Ahmed and the Cashier Mannan Bhuiya to prevail upon the workers to accept rupees 10 less, according to P. W. 3 Ashrafuddin Ahmed's own evidence he was away on the day of the payment of salary. Mr. Nurullah has further drawn our attention to the statement of the P. W. 3 that no written complaint was made to the Manager about the deduction Mr. Nurullah has also drawn our attention to the discrepancy that while according to P. W. 1 it was the manager who induced the workers to accept Rs. 10 less, according to P. W. 4 it was at the request of the Foreman that he (P. W. 4) prevailed upon the workers to do so. There is hardly any discrepancy here as the Foreman must have acted under the direction of the Manager. The above discrepancies and the fact that Hasan Ahmad acknowledged the receipt of payment in full and that there was no written complaint regarding the deduction of Rs. 10 to the Manager, do not impress us as sufficient reason for disbelieving the P. Ws. regarding short payment and deputation to the Manager. In this connection it is to be noted that there is no proper denial at all in the written statement of the appellant in respect of the above incidents. In the circumstances, we do not find any reason to disagree with the finding of the learned lower Court that the immediate reason for the abrupt termination of their services was the deputation and the altercation that ensued and that the termination was mala fide by way of victimisation. In view of the above, we are unable to accept the contention of Mr. Nurullah the learned Advocate for the appellants that the termination of the services of the three workmen was termination simpliciter and therefore the order of re‑instatement was illegal. The learned Labour Court has rightly pointed out that in spite of their long periods of service the Manager did not hesitate to dispense with their services and it has held on the basis of the evidence discussed above that the termination of the services of the three workers was mala fide and by way of victimisation. In awarding their re‑instatement the learned Court has allowed them full wages of only one year. Under the facts and circumstances of the case we find that the re‑instatement of the workers was the just and proper order and award of one years back wages is rather moderate and we do not find any reason to interfere with the award of the learned trial Court. We should mention here that with regard to the worker Hassan Ahmed. Mr. Nurullah has contended that he was only an ordinary member and not an officer of the Trade Union and as such he is not entitled to the benefit of re‑instatement. The learned Advocate has contended that the provision for re‑instatement against an order of termination is available only to an officer of a Trade. Union. In support of this contention he has referred us to the first Proviso to section 25 of the Standing Orders Act, 1965, which authorises an individual worker to have any grievance covered by the said Act brought before the Labour Court for summary adjudication and no appeal lies against an order under this provision. The 1st proviso to section 25 is as follows :‑ "Provided that no complaint shall lie against an order of termination of a worker under section 19, unless the worker concerned is an officer of a Registered Trade Union and his employment is alleged to have been terminated for his Trade Union or unless the worker concerned, whether an officer of registered Trade Union or not, has been deprived of the benefits specified in that section." The benefits specified under section 19 are that for termination of his service a worker is to be given 90 days or 45 days notice according as he is a monthly‑rated worker or a piece‑rated worker or wages for such period in lieu thereof, and he is also to be paid compensation at the rate of 14 days' wages for every year of completed service or for any part thereof in excess of six months in addition to other benefits. It is evident that the above proviso, whatever may be its exact import is applicable only in case of a "complaint" under section 25 of the Standing Orders Act. That proviso to section 25 has no application what soever to a Labour dispute brought before the Labour Court under the provisions of the Labour Disputes Act. It is true that in clause (d) of section 25 it is provided that in deciding the matter (complained of) the Court may pass such order as it may think just and proper including re‑instatement of the complainant, but there is no such express provision in the Labour Disputes Act specifying the reliefs that may be granted in a Labour Dispute. But this cannot be interpreted to mean that in a dispute under the Labour Dispute Act, the relief of re‑instatement is not available. This relief is the most effective remedy against any arbitrary dismissal by the Management under whatever term the dismissal may be disguised. And it is too late in the day to contend that because re‑instatement is specifically mentioned in section 25 of the Employment and the Standing Order Act, 1965 such relief is available only under the limited conditions of the proviso to section 25 of the Standing Orders Act and it is not available in Labour Dispute case under the Labour Disputes Act to a worker who is not an officer of a Trade Union. In the result, the appeal is dismissed. In view of the fact and circumstances that the Management took a reasonable attitude in respect of the demand for payment of arrears of increment of wages and its undertaking to make payment of the arrears within two months from date of the receipt of the record in the Court below, we make no order as to costs in this appeal. The award regarding the dearness allowance shall take effect from the 1st March 1967. A. S. CHOWDHURY, J. ‑I agree. A. E./K. B. A. Appeal dismissed.