P L D 1959 (W (PLP)

2. On the 27th of September 1956, the Ministry of Labour, Government of Pakistan, appointed Mr. Akhtar Hussain Khan, Bar‑at‑Law, as a tribunal under the Industrial Disputes Act 1947, and referred to him among others the following demands raised by the workers' Union for adjudication :‑ (1) The existing standing orders of the company should be implemented with retrospective effect and the workers should be given compensation for the period these were not observed. (6) Every worker should be confirmed after he has served for six months. (7) The management or the worker should give one month's notice or pay in lieu thereof for termination of service. (10) Provident Fund Scheme should be re‑introduced and every worker should be made its member as soon as he completed six months' service. (12) The rate of wages should be revised. (13) The workers who had been discharged illegally during the pendency of the conciliation proceedings should be reinstated.

3. After hearing the parties and taking into consideration the evidence led by them, Mr. Akhtar Hussain Khan on the 5th of January 1957 gave the impugned award accepting the above demands of the workers.

4. It may be mentioned at the outest that Mr. Nur‑ul‑Arifin, learned counsel for the applicants, has assailed the impugned award in regard to only three of .the above mentioned demands at the hearing, namely, implementation of the standing orders, increase in wages and re‑instatement of the discharged workers.

5. As regards the first of these demands, the workers maintained that there was an existing 'standing order which the applicants did not implement and the position taken up by the latter before the Tribunal was that the rules regarding standing orders did not apply to them as they did not have any labour corps on its roll. Thus the existence of a standing order was not denied but its non‑implementation was justified. In support of this reliance was placed on the agreement Exh. A executed between the applicants and the said Abdul Ghafur Contractor dated the 25th of May 1954, whereby the latter was to provide skilled and unskilled workmen for the workshop of the applicants for doing all work required for repairs to ships etc., to be paid for according to the schedule of wages annexed with the agree ment. The terms "employer" and "workman" have been defined in the Industrial Disputes Act 1947 and the position taken up by the applicants in face of these definitions is. clearly untenable. In D. C. Works Ltd. v. State of Saurashtra (AIR 1957 SC264), it has been held ; "that the essential condition of a person being a workman within the terms of the definition in section 2 (s) is that he should be employed to do the work in the industry, that there should be, in other words, an employment of his by the employer, that there should be the relationship between the employer and him as between employer and employee or master and servant. The prima facie test for the determination of relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of direction what work the servant is to do but also the manner in which he shall do his work. The nature or extent of control must necessarily vary from business to business and is by its very nature incapable of precise definition. The correct method of approach, therefore, would be the due control and supervision by the employer." It is admitted before us that in the present case the workmen, though provided by Abdul Ghafur, were in all respects subject to the control an `t direction of the applicants and Abdul Ghafur had nothing to do with the discharge of their duties. Further, the question whether the relationship between the parties is one as between an employer and employee is one of fact which the Industrial Tribunal had the jurisdiction to determine and this Court has no jurisdiction to question it. The finding of the Tribunal on this demand is, therefore, immune from any challenge in these proceedings.

6. As to the increase in wages, Mr. Nur‑ul‑Arifin, vehemently contended that the Tribunal .did not determine this issue according to well‑established principles applicable to such cases and relied on the decision of Supreme Court in Dalmia Cement Ltd. v. Dalmia Cement Factory Workers' Union (P L D 1958 S C (Pak.) 153 at page 157). It is true that in this case Mr. Akhtar Hussain Khan has not fixed a base year and determined the increase of wages in the context of increase in price index but while the Supreme Court was dealing, with this aspect of the case in an appeal our jurisdiction in the present matter‑ is limited to the issue of a writ of certiorari. In allowing increase in wages, the learned Tribunal has, said :‑ " These rates were inclusive of Conveyance Allowance and were higher than the actual rates prevailing in similar business, and a little margin of profit was also left for the contractor. A glance over these figures will show that they are fairly high both for skilled and unskilled workers. Conveyance Allowance was already included while fixing these rates, and in order to give some margin of profit to the contractor they were fixed at a higher rate. It will not be fair to allow any more allowances to the workers such as Dearness Allowance or Special Port Allowance. The margin of the profit of the Contractor will now be utilised exclusively by the workers and they would be getting actually more than what they were getting through the intervention of the so‑called contractor. The British India Engineering Works have actually been paying the workers according to the above mentioned rates since 1954. Therefore, there will be no additional burden on their resources if these rates are now fixed as desired by the Union." In disposing of this demand the Tribunal has thus acted on the basis of the evidence placed before him by the parties which in his view warranted increase in the wages to the extent the applicants were paying "some profit" to Abdul Ghafur for no ostensible consideration. In coming to this conclusion the Tribunal has neither acted in excess or in abuse of its juris diction or acted illegally. Nor there was any defect in the con stitution of the Tribunal or want of jurisdiction regarding character of proceedings, parties or the territory, which would justify interference with the impugned award by this Court in exercise of its writ jurisdiction.

7. Lastly, as regards re‑instatement of 31 discharged workers, the Tribunal has in addition to the acceptance of the demand for their re‑instatement directed the applicants to pay to them arrears of their wages from the date of their dismissal till the date of their re‑instatement. The direction for payment of arrears of wages is clearly without jurisdiction and liable to be set aside as neither the workers asked for it, nor did the Government refer this issue to the Tribunal for adjudication. The award relating to re‑instatement of the workers is, however, quite un exceptionable as the impugned order was, made in contravention of section 33 of the Industrial Disputes Act 1947, which provides :‑ "No employer shall during the pendency of any conciliation proceedings or proceedings before a Tribunal, in respect of any industrial dispute, alter to the prejudice of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commencement of such pro ceedings, nor, save with the express permission in writing of the conciliation officer, Board or Tribunal, as the case may be, shall he during the pendency of such proceedings, dis charge, dismiss, or otherwise punish any such workmen, except for misconduct not connected with the dispute." Mr. Nur‑ul‑Arifin desired us to interpret this section as putting an embargo on the authority of the employer to discharge of dismiss an employee only by way of punishment and not other wise. This will defeat the object of section 33 but it is un necessary to go into this difficult question because in the present case the Tribunal has found that the workmen in question were not discharged because there was no work for them, for even after their dismissal the applicants had engaged more workers. This clearly implies that these 31 workmen had been discharged by way of punishment and in contravention of the provisions of section 33, reproduced above.

8. On the above findings, we disallow this petition except in case of direction contained in para. 17 of the award regarding payment of arrears of wages. A writ of certiorari will accordingly issue and the following portion of para. 17 of the impugned award shall be deleted :‑ * * * * * * * * * * * * all the benefits of pay from the date of their dismissal till .they are re‑instated. On a rough calculation their wages come to about Rs. 4,800 per month. The management will calculate the exact figures." In the circumstances of the case the parties are left to bear their own costs. A.H. Order accordingly.