P L D 1959 (W (PLP)

WAHIDUDDIN AHMAD, J.‑This Writ Petition is directed against the award of Mr. Akhtar Hussain, Bar‑at‑Law, Industrial Tribunal, dated 6th December ,1956 in respect of an industrial dispute between Messrs Gul Ahmed Textile Mills Workers Union and Gul Ahmed Textile Mills. The petitioners have challenged the validity of this award and moved this Court under Article 170 of 1956 Constitution for quashing the said award. Disputes between the petitioners' Mills and its workmen have been going on for a long time. The workmen complained that the management of the petitioners' mill, on false pretexts of retrenchment and service no longer required have illegally locked out a large number of their employees with a view to deprive them of their well earned and fully deserved bonus which was due to be paid in the near future. On 4th April 1956, the Labour Commissioner brought about an agreement between the parties and the management agreed to take back all the employees. The trouble however did not come to an end. On 26th April 1956, the workmen of the petitioners' Mills represented by respondent No. 3 informed the Labour Commissioner that the management of the petitioners' Mills have unilaterally violated the terms of the settlement and if the rightful demands of the retrenched workers are not met they will go on strike and its responsibility will be on the management, and called upon him to bring about an immediate solution of this disputes. On 7th May 1956, respondent No. 3 served notice to go on strike from 24th May 1956 on the management of the mill. This notice was received by the Labour Commissioner on 9th May 1956, who again intervened in the matter and started con ciliation proceedings between the parties. A meeting was arranged between the management and representatives of the workmen on the 25th May 1956, but it was cancelled as the represent ative or the Mills did not participate in it due to the illness of its director. On 26th May 1956, the workmen went on strike. On 17th June 1956 the conciliation officer, through the efforts of the conciliation machinery of respondent No. 1, persuaded the parties to settle their disputes. All the disputes between them were settled except the question of bonus for the year 1955, and pay and allowances for the period of strike. The strike was called off on 17th June 1956. Respondent No. 1 referred the following disputes on 19‑9‑56 to the Industrial Tribunal consisting of Mr. Akhtar Hussain, Bar‑at‑Law. (1) Bonus for the year 1955. (2) Pay and allowances for the period of strikes vide (1) from 26th May to 17th June 1956 and (2) From 26th to 29th June 1956. After hearing the parties the Industrial Tribunal, awarded 1/12th of the basic wages of the workers as bonus to the workmen for the year 1955 and also allowed pay and allowances for the period of the first strike only i.e., for 23 days to them and disallowed the claim for pay and allowances of the second strike. The petitioners have challenged this award on several grounds but Mr. Sharifuddin, the learned counsel for the petitioners, did not press the first objection about the validity of the reference having not been made by the appropriate Government in view of the decision of their Lordships of the Supreme Court in The Mughal Tobacco Co. Ltd. Karachi v. Islamic Republic of Pakistan and two others (P L D 1959 S C (Pak.) 31) and Sui Gas Transmission Co. Ltd. v. The Islamic Republic of Pakistan and 2 others (P L D 1959 S C (Pak.) 66). It will be observed that the Industrial Disputes Act of 1947 was amended by Act XXXI of 1958. Under it, the definition of appropriate Government was amended by the insertion in its first clause of the words " or in relation to any industrial dispute within the Federal Capital " between the words `port' and Central Government. This amendment took effect from 14th October 1955. As the reference in this ease was made on 19th September 1956 and the dispute arose in the Federal Capital, there is no doubt that the change in the definition of the appropriate Government' with retrospective effect goes to the root of the objection, and the reference to the Industrial Tribunal was perfectly valid and in order. Mr. Sharifuddin, the learned counsel for the petitioners, has confined his objection to the validity of the award to two grounds: Firstly that the learned Tribunal in awarding the bonus did not take into consideration the circumstances under which bonus is allowed to the workmen. The learned counsel argued that bonus is a gratuity and is awarded only when there are huge profits and the wages of the workmen fall short of their living standard. According to him profits could only be determined after making provisions. (1) for depreciation. (2) providing reserve for rehabilitation, (3) making allowance of 6% profit on the paid up capital, (4) making allowance for the return on the working capital at the lesser rate than that allowed on paid up capital, and unless these inquiries are made, no Tribunal can come to the conclusion whether a particular concern has earned any profits or not. The learned counsel further urged that the onus to show that the petitioners' earned profits was on the respondent No. 3, and that the Tribunal has erred in raising an adverse presumption against the petitioners, and was not justified on the material placed before it to accept the demand of respondent No. 3 for bonus for the year 1955. Secondly, Mr. Sharifuddin has attacked the award on the ground that the learned Industrial Tribunal had no jurisdiction to award any compensation to the workmen of the petitioners' mill in respect of a strike which was illegal under the pro visions of the Industrial Disputes Act. We will deal with these objections separately. In, deciding the first objection it must be borne in mind that this Court is not sitting as a Court of appeal. There are different considerations when a matter comes up in appeal. The Appellate Court can re‑try the question which the inferior tribunal decided. The jurisdiction of this Court is now limited to five writs, namely, Writ of mandamus (2) Writ of certiorari, (3) Writ of quo warranto, (4) Writ of habeas corpus and (5) Writ of prohibition. It was conceded by the learned counsel for the petitioner that the only writ that can be issued in this case is a writ of certiorari. There are three recognized grounds on which such a writ is issued : it must be shown before such writ is issued (i) that inferior tribunal which passed the order (ii) in viola tion of the principles of natural justice or (iii) there is an error of law apparent on the face of the record. The learned counsel urged that his case falls within the ambit of the last ground. Without entering into the discussion about the speaking or unspeaking order; it can broadly be stated that if an inferior tribunal has clearly misconstrued a section of the statute or has disregarded a provision of law or has not applied it and this is apparent from the impugned order, the High Court has jurisdiction to issue a writ of certiorari to correct such an error of law. But it does not mean that merely because the inferior tribunal has erroneously found a fact, the High Court will correct it. This is the function of the appellate Court. In The Colonial Bank of Australasia v. Willan ((1874) 5 P C 417 at 442) their Lordships of the Privy Council in this connection observed:‑‑ " Objections founded on the personal incompetence of the Judge, or on the nature of the subject‑matter, or on the absence of some essential preliminary, must obviously, in most cases, depend upon matters which, whether apparent on the face of the proceedings or brought before the superior Court by affidavit, are extrinsic to the adjudication impeached. But an objection that the Judge has erroneously found a fact which, though essential to the validity of his order, he was competent to try, assumes that, having general jurisdiction over the subject‑matter, he properly entered upon the enquiry, but miscarried in the course of it ". We would also approach the present case in the light of these observations. So far as the first objection about the validity of the award of the Industrial Tribunal on the question of bonus is concerned, the learned counsel for the petitioner has invited our attention to a decision of the Calcutta High Court reported in National Carbon Co. (India) Ltd. v. M. N. Jan, Judge Labour Appellate Tribunal and others (A I R 1957 Cal. 500). In that case also the Industrial Tribunal awarded bonus to the workers of the National Carbon Co. Ltd. This decision was challenged on the ground that there was no evidence available on the record of the Industrial Tribunal about the profit earned by the Company concerned and, therefore it was not justified in awarding a bonus to the workmen. In that connection, Sinha, J., laid down certain principles for the guidance of the authorities in awarding bonus to the workmen. These principles are the same which are referred in the earlier part of the judgment. The learned counsel pressed that the Industrial Tribunal in not following these well recognised principles has committed an error of law. Reliance for this is also placed on the above‑mentioned Calcutta decision. In our opinion this decision has gone too far. It is also dis tinguishable as in that case there was no material before the Industrial Tribunal about the profit or loss of the employees. The question before the Industrial Tribunal in the present case was about the profit earned by the petitioners' mill during the year 1955. In the balance sheet for this year a sum of Rs. 39,11,526 which nearly represents 42%. fixed capital assets of the mill, was claimed as depreciation. The learned Tribunal considered this amount too much and disallowed it. The view of the learned Tribunal that the employers were not entitled to cut of such a big slice from the amount of the profit is not without substance. The question involved was purely a question of fact and we are not inclined to disturb it. The learned counsel then contended that the depreciation was claimed according to the Income‑tax Law and the learned Tribunal in not accepting it has acted contrary to law. This contention is not well founded. The Industrial Tribunal was not determining the profit for the purposes of income‑tax. Under Income‑tax law certain special allowances are given to the industries. The idea behind it was to encourage industries. In our opinion these rules are not relevant for the decision of the question under consideration. We find no force in this objection and decide it against the petitioners. The second objection of Mr. Sharifuddin that the strike for which compensation has been awarded was illegal, is well founded. It will be noted that tile petitioner's mill is a public utility service within the meaning of section 2 (n) (viii‑b) of the Industrial Disputes Act, 1947, as amended. This subsection is reproduced below :‑ "(viii‑b). Any factory as defined in clause (j) of section 2 of the Factories Act, 1934, and engaged in tile manufacture or processing of such goods or commodities as are for the time being specified in the Schedule to the Development of Industries (Federal Control) Act, 1949 ". It is engaged in manufacturing and processing cotton textiles, which is one of the goods mentioned in item 26 in the Schedule to the Development of Industries (Federal Control) Act, 1949. Under section 22 of the Industrial Disputes Act, no person employed in a public utility service can go on strike during the pendency of any conciliation proceedings before a concilia tion officer and seven days after the conclusion of such pro ceedings. Section 20 of the Industrial Disputes Act lays down that conciliation proceedings shall be deemed to have commenced on the date on which a notice of strike is received by the conciliation officer and it is treated to be pending till the parties to the dispute sign the memorandum of settlement, or in the case of no settlement till the report of the conciliation officer is received by the appropriate Government or in case where a reference is made under section 10, when such reference is made to a Court or Tribunal. It is admitted by the counsel for the parties that in this case the conciliation proceedings ended after tile conciliation officer's report was received by the appropriate Government. The report of the conciliation officer was received on 7th June by respondent No. 1 and in law it was pending between 7th May 1956 and 7th June 1956. The workmen in this case went on strike on 26th May and continued it till 17th June 1956. There is thus no doubt that the first strike Has prohibited and was illegal within the meaning of section 22 of the Industrial Disputes Act, 1947. The question then arises whether the Industrial Tribunal is entitled to award any compensation to the workmen for the period of an illegal strike. It appears to us that in view of the provision of the Industrial Disputes Act, there is no such jurisdiction vested in the Tribunal. It was conceded by Mr. Abdul Salam Faruqi, learned counsel for the respondents, that the workmen are not entitled to any compensation for the period of an illegal strike and in our opinion also in law this is the correct position. As a result we will hold that the learned Tribunal's award in this respect is without jurisdiction. We will, therefore, quash the award of the Tribunal in so far as it awards compensation to the workmen for the period of illegal strike. For the reasons given above, we will issue a writ of certiorari quashing the order of the Industrial Tribunal about its finding in favour of respondent No. 3 in respect of compensation allowed to them as wages and allowances for the period of the first strike. The award on other questions is binding between the parties and will remain operative. The parties are ordered to bear their own costs. A. H. Order accordingly.