P L D 1966 Supreme Court 72 (PLP)

In any case, all actions consequent upon the reference were taken by a Board consisting of the four principal members, and two members appoint d to represent employers and workers Pak. Sleet respectively, in the particular industry. The claim made by the Association (consisting of majority Association of members of industry) that unless a person nominated to represent the employers is a person recommended by the Province of Association, the appointment will not be of a representative in the true sense, cannot be conceded. The duty imposed by the law is that such nominations should be considered. The law does not require that they should be accepted. As the proprietor of a steel re-rolling mill himself (the person appointed as, representative of the employers certainly possessed the necessary qualification to assist the Board with his. experience of the operations of the industry in the capacity of an employer, and in effect that was what the Ordinance required. These objections were ineffective to avoid actions of the Board in view of the clear provisions of section 11 of the Ordinance. (c) Minimum Wages Ordinance (XXXIX of 1961), S. 5 Requisite conditions for making a direction to Board to recom mend minimum wages-Non-existence of "adequate machinery for effective regulation of wages"-Provincial Government's opinion as to such non-existence "a matter of subjective satisfaction" into which Courts are not competent to investigate-Industrial Disputes Ordinance (LVI of 1959), not such "adequate machinery"-Deter mination of minimum wages "categorically different" from determination of wages in an industrial dispute relating to wages Of the conditions requisite to the making of a reference one, namely an opinion formed by the Provincial Government is clearly a matter of subjective satisfaction into which the Courts are not competent to investigate. The Industrial Disputes Ordinance, 1959 does not provide alternative machinery adequate to the resolution of questions of the kind which were the subject of reference under section 5, Minimum Wages Ordinance, 1961. The determination of minimum wages is categorically different from the determination of wages in an industrial dispute relating to wages, where the question ordinarily raised is inadequacy of the wages actually paid to employees in the different categories. An enquiry into the minimum wages appropriate for the different classes of workers throughout the industry has an altogether wider and more general character, than a question of adequacy of wages actually being paid in a particular unit of the industry to certain workers or classes of workers. Moreover, it cannot be thought that the Provincial Government, when faced with the necessity of determining minimum wages appropriate to a particular industry, should move by the method of procuring a lockout or strike in one or more units engaged in that industry. One or other of these conditions is necessary for the initiation of a proceeding under the Industrial Disputes Ordinance. (d) Minimum Wages Ordinance (XXXIX of 1961), S. 5 (2) Fixing of extra-allowance in Steel re-rolling industry, with reference to distances of working place from furnace and not with reference to a specified description of particular workers-Matter within Board's lawful authority-No writ can issue to avoid action of Board-[Constitution of Pakistan (1962), Art. 98]. (e) Minimum Wages Ordinance (XXXIX of 1961), S. 2(9) "Worker"-Scope of word wide enough to include "supervisory staff", e.g., managers or engineers-Board has power to provide minimum rates of wages for all workers specified in Government's reference. (f) Constitution of Pakistan (1962), Art. 98-"Aggrieved" party-Whether an "Association" as such formed by different owners in a particular industry (Steel Re-Rolling Mills) is qualified as an aggrieved party for purposes of a writ petition-(Quaere). A. K. Brohi Senior Advocate Supreme Court instructed by M. Siddiq Senior Attorney (in both the appeals) for Appellants. M. A. Zullah Advocate Supreme Court instructed by Ijaz Ali Attorney (in C. A. No. 41 of 1964) for Respondent. Muhammad Nadir Malik Advocate Supreme Court instructed by Ijaz Ali Attorney (in C. A. No. 77 of 1964) for Respondent. Dates of hearing: 4th and 5th November 1965. CORNELIUS, C. J.-This judgment relates to two Civil Appeals, namely, No. 41 of 1964, by the Pakistan Steel Re-Rolling Mills Association, and No. 77 of 1964, by Messrs Union Steel Ltd., and four other Steel Re-Rolling Mills. The opposite-parties are the West Pakistan Province and the Minimum Wages Board appointed for the purpose of fixing minimum wages in the Steel Re-Rolling Industry. These appeals arise out of a single judgment delivered by the High Court of West Pakistan, dismissing two writ petitions brought by the respective appellants, to call in question a notification issued by the Provincial Government on the 15th March 1963, whereby minimum rates of wages as recommended by the Minimum Wages Board were notified as payable to their employees by the Steel Re-Rolling Mills in West Pakistan. The High Court had found that the Pakistan Steel Re -Rolling Mills Association did not have the status of an aggrieved party and consequently the writ petition by that Association was not competent. There being other writ petitions by individual members of that Association also seeking the same relief, the High Court, however, dealt with the contention raised before them. It was first contended that the original reference to the Minimum Wages Board was incompetent for the reason that at the time when it was made, only three members of the main Board had been appointed, and the place of a fourth person, described as an "independent member" had been left unfilled to be filled later. Later still, as required by the proviso to sub section (1) of section 3 of the Minimum Wages Ordinance, 1961, two members were appointed with special reference to the, needs of the particular industry. These were to represent the employers and the workers respectively. The two persons nominated by the Provincial Government were Mr. Abdur Rahim Malik to represent the workers and Rana Khuda Dad to represent the employers. It was accepted that Abdur Rahim Malik as the General Secretary of a Union of workers engaged in the particular industry was a proper representative of the workers, but it was strongly contended that Rana Khuda Dad, who was described as being of "Rana Motors. the Mall, Lahore" could not be thought to be in any sense "a representative" of the employers in that industry. The requirement as stated in subsection (3) of section 3 aforesaid was that these representatives should be appointed "after considering nominations, if any, of such organisations as the Provincial Government considers to be representative organisations of such employers and workers respectively." With reference to the appellants-Association, the claim was made that its membership included practically every concern engaged in the industry, that is some 100 members out of a total of 130, the rest being defaulters. The Association had been consulted by the Government and had sent a panel of four names of persons whom it regarded as suitable to represent the employers in the industry. None of these persons was selected, but instead the Provincial Government had nominated a person who was concerned with the motor car trade, and could not therefore be regarded as a representative of the employers in the industry. Consequently, it was contended that the Board was not constituted in accordance with law and was therefore not competent to function as it had done. The second contention raised was that two conditions precedent to the making of a reference to such a Board had not been satisfied. These conditions were, firstly, that in respect of the particular industry, there should have been no adequate machinery in existence for effective regulation of wages. The second is that the Provincial Government should have formed the opinion after taking into account wages actually paid to workers employed in the industry, that it was expedient to fix minimum rates of wages for such workers. Thirdly, it was contended that in making their award, the Board had exceeded the limits laid down by section 5 inasmuch as firstly, they had fixed supplementary wages for those workers who had to work within ten yards of the furnace as well as for those working beyond ten yards but within twenty yards of the furnace. The High Court held that the first contention was without force, relying mainly on the provision in section 11 of the Ordinance that no act of a Board should be questioned "merely on the ground of any vacancy therein" or of "any defect' in the qualification of any member thereof". As to the second contention, it was held that on the point of the expediency, of making a reference, the matter was governed by the subjective satisfaction of the Provincial Government. As to alternative machinery available for resolution of the same matter the petitioners had relied mainly on the existence of trade Unions in the industry, and the availability of the provisions of the Industrial Disputes Ordinance, 1959, as an effective means for regulation of wages when disputes arise. These were not regarded as adequate for the instant purpose. With respect to the third contention, it was held that classification of workers was within the competence of the Board, and that classification on the basis of nearness to the furnace was reasonable. Special leave was granted by this Court to both appellants to appeal against this order on the ground that several points of law arose for consideration. It is true that the first notification appointing three members of the Board left the fourth place, viz., that of "an independent member" unfilled, and the Board was in that condition when the reference was made to it by the Provincial Government. We are asked by Mr. Brohi to find that the reference was incompetent, because in law there was no Board in existence at that time In leaving one place unfilled, the Government was not acting in defiance of the Ordinance, or in violation thereof. It expressly stated by its notification that the fourth place would be filled B later, and that was actually done. In any case, all actions consequent upon the reference were taken by a Board consisting of the four principal members, and two members appointed to represent employers and workers respectively, in the particular industry. The attack on the non-representative character of Rana Khuda Dad was based on the ground that he had nothing whatsoever to-do with the Steel Re-Rolling Industry, and that in ignoring the names recommended by the principal Association of units in the industry, and appointing some one else, the Government had violated the legal provision that they should appoint a representative person. It -was urged that in the absence of consensus between Rana Khuda Dad and the persons whom he was appointed to represent, his appointment was illegal and void, so that the Board could not be thought to be duly constituted with only five legally appointed members. The record shows that Rana Khuda Dad is the proprietor of a steel re-rolling mill, and in that capacity he receives licences from the appropriate Government to continue the work of this mill. The claim made by the Association that unless a person nominated to represent the employers is a person recommended by the, Association, the appointment will not be of a representative in the true sense, cannot be conceded. The duty imposed by the law is that such nominations should be considered. The law does not require that they should be accepted. As the proprietor of a steel re-rolling mill himself, Rana Khuda Dad certainly possesses the necessary qualification to assist the Board with his experience of the operations of the industry in the capacity of an employer, and in effect that is what the Ordinance requires. There is clearly no substance in either of these objections, which in any case were ineffective to avoid actions of the Board in view of the clear provisions of section I1 of the Ordinance. Of the conditions requisite to the making of a reference as in this case, one, namely, an opinion formed by the Provincial Government is clearly a matter of subjective satisfaction, into which the Courts are not competent to investigate. Mr. Brohi urged that the second condition was not satisfied namely, that of absence of other adequate machinery to provide a solution in the necessary respect, and he referred to the existence of Trade Unions within the industry; and the availability of the Industrial Disputes Ordinance of 1959 to settle disputes between employers and workers, in particular, disputes as to wage's. The determination of minimum wages is categorically, different from the deter mination of wages in an industrial dispute relating to wages, where the question ordinarily raised is inadequacy of the wages actually paid to employees in the different categories. An enquiry into the minimum wages appropriate for the different classes of workers throughout the industry has an altogether wider and more general character, than a question of adequacy of wages actually being paid in a particular unit of the industry to certain workers or classes of workers. Moreover, it cannot. be thought that the Provincial Government, when faced with the J necessity of determining minimum wages appropriate to a particular industry, should move by the method of procuring a lockout or strike in one or more units engaged in that industry. One or other of these conditions is necessary for the initiation of a proceeding under the Industrial Disputes Ordinance. It is quite clear that that Ordinance does not provide alternative H machinery adequate to the resolution of questions of the kind which were the subject of the present reference. Mr. Brohi considered that in providing a supplement for workers working in different proximities to the furnace, the Board had gone outside its functions as laid down in subsection (2) of section 5 of the Ordinance, but we find it impossible to agree. Learned counsel seemed to think that this would result in all kinds of workers pushing to get as near to the furnace as possible, so as to earn the supplementary allowances. The Board would be supposed to know, and we may also assume, that conditions of working in the immediate surround of the furnace and even at a distance within 20 yards, are so extremely unpleasant that there need be no fear of such a development. It is suggested that the Board should have specified by description which particular workers would be entitled to the allowance. It may be that if that had been done, all possibility of future dispute might have been avoided. That was, however, a matter for the Board to consider. We do not think that the direction it has given is one that is not workable. In any case, no writ could issue to avoid the action of the Board in this respect, it being within the Board's lawful authority. Mr. Brohi finally-argued that in making provision in their award for minimum wages of certain classes of employees, e.g., managers, engineers and others under the heading of supervisory staff, the Board had exceeded its jurisdiction. Under the Ordinance, the Board has power to provide minimum rates of wages for all workers in the industry such as may be specified in the reference and the expression "worker" is defined in the Ordinance in the most general terms so as to include all these doing "intellectual, technical, clerical, or mental or other work. The scope, of the definition is thus certainly wide enough to include supervisory staff. We do not find it necessary in view of the failure of the contentions on the merits to decide the question whether the Pakistan Steel Re-Rolling Mills Association qualified as an "aggrieved party" for the purposes of their writ petition. These appeals fail and we hereby dismiss them with costs. . Appeals dismissed.