P L D 1964 (W (PLP)

QADEERUDDIN AHMED, J.

‑These appeals have been preferred under subsection (5) of section 12 of the Industrial Disputes Ordinance, 1959, from the award given by an Industrial Court at Karachi on the 19th of June 1963. The award consists of two parts, one of which deals with the dispute raised by the Karachi Steam Roller Flour Mills Company Ltd. bearing No. 20 of 1961, and the other with the disputes raised by Flour Mills Employees' Union bearing No. 36 of 1961.

2. The stand of the Union is that the three demands which the Company had made ought to be rejected altogether and that the payment of bonus to the employees ought to have been held as due three times for the years 1961‑62 and 1962‑

63. The stand of the Company is that its three demands ought to have been accepted fully.

3. The demand of the Union, which is under appeal now was as follows "Demand No. 2.‑Bonus should immediately be distributed to the workers." The three demands of the Company were as follows‑ "Demand No. I.‑That the age of retirement for all workers be fixed at 50 years or 30 years of completed service whichever is earlier and that on retirement each worker be paid gratuity and Provident Fund as per rules of the Company. Demand No. 2.‑That the maximum pay for each worker be fixed just as the minimum has been fixed. Demand No. 3.‑That the sick leave for each worker be fixed at ten days per annum."

4. The Industrial Court has rejected the above demand of the Union on the ground that the financial situation of the Company did not permit it and has partly accepted the demands of the Company. With reference to the first demand of the Company, it has held that the age of retirement of the workers be 60 years and has made no mention of 30 years' completed service. As to the second demand it has held that maximum wages be fixed‑ "which should not be less than three times the original pay for the future entrants but so far as the present workmen, who are receiving annual increment at rate of 5% of their salary are concerned, they should continue to draw that increment until they retire or go out of service;" Moreover, that the maximum wages should be fixed in agreement with the workmen. Under the third demand, sick leave has been fixed to be 30 days per year for new entrants, but as far as the present workers are concerned, it is to continue to be unlimited.

5. The contention of the Union with respect to its demand for bonus can be disposed of shortly because the only objection urged against the decision of the Industrial Court in respect of it is that the financial situation of the Company was not properly established to support the conclusion. Counsel for the Union urged that the evidence, on the basis of which the situation could be established, was in the possession of the Company which it did not bring on the record; therefore, a presumption should have been raised against the Company. The Industrial Court has explained that payment of bonus was not warranted on the basis of the previous balance‑sheets and that the affairs could not be clearly understood with respect to the running year because the accounts had not been finalised. If the Union was not satisfied with the evidence that was produced by the Company, then is ought to have taken steps to get such other documents produced as could establish its case and cannot in substitution of that take the stand that a presumption should be raised against the Company. The facts were not of such a nature as could not be brought on the record at the instance of the Union if it desired to prove them. The stand of the Union in this respect cannot be sustained.

6. The objection of the Union to the partial acceptance of the demands of the Company is that the demands were inconsistent with the agreement which had been reached between the parties, vide Exh. P‑

1. The document proves that there was no age limit, no limit on maximum wages, and that, on the contrary, the workers could get an unlimited number of increments at the rate of 5 and 10 per cent. in appropriate cases. There is no mention of sick leave in the agreement; therefore, counsel for the Union urged that any limitation imposed on such leave was also inconsistent with the agreement. In support of this contention he relied on sections 4 and 9 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1960. Section 4 is as follows:‑ "The Standing Orders may be modified by means of a collective agreement and not otherwise: Provided that no such agreement shall have the effect of taking away or diminishing any right or benefit available to the workmen under the provisions of the Schedule." Section 9 runs as under;‑ "Nothing in this Ordinance shall affect any law, custom, usage, award or agreement in force immediately before the promulgation of this Ordinance, in so far as such law, custom, usage, award or agreement ensures conditions of employment more favourable to workmen than those provided in the Standing Orders." A glance at the above sections makes it clear that no restriction is imposed by them on the powers of the Industrial Court to give an award inconsistently with an agreement or with the Standing Orders. If this view of the law is correct, then there is no legal support to the above contention of the Union.

7. The answer, therefore, turns on the propriety of the partial acceptance and partial rejection of the demands of the Company. A desire was expressed by this Court that counsel for the parties may elucidate the principles on the basis of which the propriety or impropriety of one stand or the other might be established. Counsel for the Company stated after an adjourn ment, that he could refer to two principles only for judging it, which were‑ (i) Example of the terms of employment in similar industry existing in the same region, subject to the comparative financial conditions of the Company in dispute and such similar industry; (ii) Soundness of the reasoning which supports a demand. Counsel for the parties expressed their inability to deduce any other principles from the provisions of law or judicial precedents.

8. They agreed that there were in all three flour mills in the region. They also agreed that the flour mill, to which these disputes relate, was the oldest though not the biggest of them. They further agreed that the age limit of the workers was fixed by one of the three mills, namely, The Sind Flour Mills Ltd. to be 60 years. If that example serves as a criterion in this case, then the Industrial Court was right in fixing the age limit to be the same for this Company. But counsel for the Company contended that in many cases relating to commercial concerns, the Courts have fixed the age limit to be 55 years and in one or two cases to be 58 years, but in no case of a commercial concern to be 60 years. He argued that if that is the proper age of retirement for those employees who do not have to exert physically, then the age limit for industrial workers should be lower than that; therefore, the demand of the Company for fixing 50 years as the age of retirement was a sound one. Any worker, according to counsel, who worked in an industrial concern for 30 years was bound to suffer from physical fatigue and the monotony of the work, therefore ought to be retired either on the completion of service of 30 years or at the age of 50 years; because otherwise, the production and efficiency of the industry was bound to suffer. As against this point of view, counsel for the Union has emphasised that '.anybody who has spent the prime of his life in. a concern and has no prospects of finding employment elsewhere at an advanced age should in fairness continue to remain in service and the employer should not be in a position to drive him out of employment without proving his incapacity to discharge his duties efficiently. Counsel for the Company in reply referred to paragraph 12 of Schedule I to the Industrial and Commercial Employment (Standing Orders) Ordinance, 1960 in support of his argument that placing restrict ions on the will of the employer to have an employee in his service or not, would be inconsistent with the underlying principles governing the relationship of master and servant as recognised in the clause, which is as under:‑ "(1) For terminating employment of a permanent workman, notice in writing shall be given either by the employer or the workman‑one month's notice in the case of monthly‑rated workmen and two weeks' notice in the case of other workmen; one month's or two weeks' pay, as the case may be, may be paid in lieu of notice. (2) No temporary workman whether monthly‑rated, weekly rated or piece‑rated and no probationer or badli shall be entitled to any notice or pay in lieu thereof if his services are terminated, but the services of a temporary workman shall not be terminated as a punishment unless he has been given an opportunity of explaining the charges of misconduct, alleged against him in the manner prescribed in paragraph 13. (3) Where the employment of any workman is terminated, the wages earned by him and other dues, if any, shall be paid before the expiry of the second working day from the day on which his employment is terminated."

9. The above considerations which were pressed by counsel for the parties indicate a vast range of the points of view from which the problem may be looked at. As a matter of logical sequence, I enquired from counsel for the Company as to why the Company desired to have an age limit fixed if it could terminate the employment of a worker and the above‑quoted clause. Counsel replied that the clause leas barn interpreted by the Supreme Court in Glaxo Laboratories (Pak.) Ltd. v. Pakistan (P L D 1962 SC 60), to be restricted to those circumstances in which there was no victimization. If old age were the real reason of the termination of the service of an employee then it was easy for him to allege victimization unless the inefficiency of that employee was proved. In other words, the clause does not serve the purpose. There is no reference to the above clause in the judgment, which has proceeded on the considerations of rules 23 and 21 of the Standing Orders of the Glaxo Laboratories (Pakistan) Ltd., which were more or less the same as clauses 12 and 13 of the First Schedule to the Industrial and Commercial Employment (Standing Orders) Ordinance, 1960. That Company had alleged misconduct of a worker for disobedience of orders and had charge‑sheeted him under rule 23 (a) of its Standing Orders, and terminated his services for misconduct, but had also paid one month's salary in lieu of notice. The action was sought to be justified on behalf of that Company on the basis of rule 21 which was similar to the above‑quoted clause

12. The Supreme Court found that there was nothing on the record to show that the worker‑ "was at all treat ed as having been discharged under rule 21 and that rule, therefore, cannot be pressed into service by the Company for pleading that the termination of service had no connection with the alleged misconduct of Latafat." Previous to this judgment, the Supreme Court may possibly be said, according to counsel, to have taken the contrary view in Karnaphully Paper Mills Limited v. Worker's Union (P L D 1961 SG 329); but irrespective of the distinctions that one can draw between the two judgments, the legal implications of the latter view should be taken to prevail. This view of the law, counsel urged, made it necessary that an age limit should be fixed so that the allegations of victimization and their adjudication may not hamper the efficiency and development of the Industry. The Company has already alleged before the Industrial Court that there was a large number of employees in its service who were of advanced age, and that their presence had reduced its production. It is proper in these circumstances to examine the question further.

10. There are no statistics to support the contention that the production of the Company has been adversely affected; nor is there any evidence to show as to at what age precisely the efficiency of a worker is appreciably reduced. There is no doubt that age affects bodily proficiency; but the point for consideration in this case is as to whether efficiency is markedly reduced at the age of 50, 55, 58 or 60 years. There is no medical evidence or other data on the record, but one knows from general experience that ordinarily age affects firstly the eyes, secondly the hearing, thirdly the flexibility of the muscles with the consequence that easy movement of the joints is slowly reduced and that hardening of the arteries as well as general debility undoubtedly sets in, in a normal human physique, as age advances beyond 50 years which inevitably reduces the physical capacity to produce the best results. In this view, it is possible to sympathies with the point of view of counsel, because the higher than 50 years is the age of retirement, the greater are the chances of reduced efficiency. If the maximum production at the lowest cost is to be taken to be the paramount consideration, then preference should be given to 50 years as the age of retirement. A reference to Chapter 24 of the Manual of Industrial Hygiene, edited by William M. Gafafer on the subject of Absenteeism indicates that the workers have been grouped for purposes of many of its graphs as those under 50 years of age and those 50 years of age and over. They indicate that causes for absenteeism increase from the age of 50 years and over, but as against this consideration there are humanitarian and sociological considerations which according to the attitude of the mind may easily outweigh them. The basic role of the ordinary Courts is not to be capitalists, or humanitarians, or socialists, but t dispense justice according to law and its own nature as honestly understood by them for all times and, subject to certain limita tions, from time to time.

11. The purpose of industrial law and the object of industrial justice can be taken to establish a balance between the interests of the workers and those of the owners of industry so that harmony of their relations may be achieved. It is not easy, perhaps not even possible, to strike a perfect balance because a limitations with respect to the interests of either party are imposed by the existing conditions. The decisive factor for the decisions, in the existing state of affairs, would ultimately have to be the attitude of the mind or the policy designed by those who administer industrial justice. There is little authority from the purely legal point bf view in support of one attitude or the other. In these circumstances, the Legislature has considered it best not to confer the industrial jurisdiction on the ordinary Courts and has created special Industrial Courts. One of the reasons behind it appears to be that the Industrial Courts are expected to be experienced in and appreciative of social, economic, labour and industrial problems, while the ordinary Courts are trained to administer purely legal justice with commendable emphasis, of course, on rationality and logic which is, however, not the same thing as the formulation of and adherence to a well designed policy within the law. The jurisdiction to hear appeals from the awards of the Industrial Courts has recently been conferred on the High Court; but the nature of the jurisdiction of such appellate Courts and, I believe, their outlook should be the same as those of the special Courts from which the appeals are preferred, unless in respect of their outlook an error can be found which should be an error of law, fact or a legally recognizable policy, and not merely disunity in the implicit attitudes of mind. The Chairmen of the Industrial Courts in West Pakistan have been ex‑Judges of the High Court perhaps because experts of the right type are not easily available and because the training in the administration of purely legal justice guarantees logicality, legality and the capacity to accurately grasp facts as well as the trends of thought. The discovery an development of policies must nevertheless remain the respon sibility of the special courts.

12. The above discussion is relevant not only to the question of the fixation of the age limit but also to the fixation of maximum wages and sick leave because the arguments on those disputes had an underlying trend to emphasize either the welfare of labour or the welfare of the industry. It would be proper therefore to dilate a little more on the scope of the appellate jurisdiction.

13. The jurisdiction has been conferred on the High Court by subsection (5) of section 12 of the Industrial Disputes Ordinance, 1959, which is as follows:‑ Any award published under subsection (2) or sub section (2‑B) may be appealed against to the High Court by any party to the dispute within 30 days of the publication of the award; and the decision of a High Court in such appeal shall be final. Counsel for the Company argued in view of the provision that the jurisdiction of the High Court was unrestricted and that this Court could substitute its views for the views of the Industrial Courts even on the basis of its own preferences. Counsel had reason to take that view because the appellate powers are completely undefined. There is no guidance as to how much interference can be exercised by the High Court, excepting such as can be found in the implications of the word "appeal" itself. That word is itself an undefined expression, with the result that discussion is to be found in various decisions given in exercise of several jurisdictions as to whether "appeal" means: (i) de novo trial, (ii) re‑hearing, or (iii) merely a continuation of the original pro ceeding in which interference in its most proper sense should take place only when error is found in the decision from which the appeal has been preferred. The third view point appears to be the soundest as a general proposition as well as the most generally accepted one. To mention but one clear pronouncement on the subject I quote Cotton, L. J., from In re: Giles. Real and Personal Advance Company v. Michell (43 Ch. D 395), where he has pointed out the difference between re‑hearing and appeal by observing that a motion before a Judge in Court to discharge or vary an order made by him in chambers is "not an appeal but a re‑hearing". A similar view was taken in Booke v. Stevenson (1 Ch. D 358).

14. As disagreement has been expressed by counsel with respect to the above‑mentioned general proposition, I may set out five inter‑connected reasons in its support. They are that: Firstly, no appeal can be conceived without the decision o an authority of a lower jurisdiction which may or may not be an inferior jurisdiction in its nature, as for instance, with reference to Letters Patent Appeals the jurisdiction of the Single Judge is not inferior in its nature; Secondly, the starting point of an appeal is the grievance of the appellant against the decision alone of the authority of that lower jurisdiction. Thirdly, when an appellant prefers an appeal, as distinguished from a writ of error, he does not select another forum of original or concurrent jurisdiction because such jurisdiction the appellate Courts very often cannot exercise, but climbs higher on a graded ladder to reason a different level of jurisdictions for obtaining redress in respect of or against the decision obtained by him. Fourthly, if the decision that is under appeal was given in exercise of a vested jurisdiction, it cannot be treated as of scant value because it is authoritative including its preferences and cannot be slighted without showing disrespect for the lower jurisdiction or the lower heirarchy of Courts. The decision of every authority or Court of a legally established heirarchy is authoritative and there is neither factually nor in law a presumption of absolute wisdom in favour of any human being however so high, though finality is conferred on the decision of the last authority or Court which the litigation reaches in order to put an end to an indefinite continuation of the process. If a material mistake of law or fact or violation of a legally recognizable policy is not found by the appellate authority or Court in the decision which is under appeal, then the substitution of its own preferences for those of the authority or Court of a lower or inferior jurisdiction may be impressive as an equitable settlement of a particular dispute, but such preferences, at least while coming from a Court of record as a worthy precedent, are bound to spread confusion unless the emanate from the general or a special law and can be consistently enforced as the policy of law on the authority of such a Court itself. Fifthly, the absence of sound reasoning is distinguishable from a sound view because poor reasoning may be a manifestation of unfamiliarity with technicalities or of poor use of logic only, unless the irrationality of the argument affects the soundness of the decision itself. The following passage from page 328 of law and the Modern Mind by Judge Jerome Frank will illustrate the point: "Little attention has been paid by psychologists to legal rationalization, although Hart states: "The distinction between the real and apparent causes of mental processes is well illustrated in the advice given to the newly created Judge, `Give your decision, it will probably be right. But do no give your reasons, they will almost certainly be wrong'." The job of the appellate Courts is to mind the soundness of the results and of basic notions as far as they concern them and to provide guidance in that respect rather than to be vainly critical like an inexperienced teacher who impresses the learned but confuses and depresses his pupils.

15. For the above reasons my inclination is to keep the attitude of my mind towards the complex problems which are at once social and economic, of labour welfare as well as of industrial development, away and apart from the considerations which should weigh for the decision of this appeal. If I am right in this view, then there should be some defect of law or fact or violation of a legally recognizable policy in the award to call for interference. To my mind, no such defect exists in it. On the contrary, the admission of counsel for the Company that the age limit of 60 years has been fixed by the Sind Flour Mills Ltd., is sufficient supporting fact to sustain the award of the Tribunal that the age limit of the workers of this Company should also be 60 years.

16. Counsel for the Company pointed out that the demand for the retirement of the workers on completion of 30 years of service has not been considered by the Industrial Court. There is, of course, no mention of this part of the demand in the award; but fixation of 60 years as the retiring age impliedly excludes the retirement of those workers who have not attained that age merely on the ground of the completion of 30 years of service.

17. The award has been further questioned by counsel for the Company with respect to the maximum wages and sick leave on the ground that for the existing workers there is no limit to which the wages may rise and that there is no limit on sick leave which can be enjoyed by them. Limits have been imposed with respect to the new entrants and the present entrants whose expectations have been respected are bound to go out of service sooner or later. Here again there should be either some factual or legal defect or violation of a legally recognisable policy in the award to call for interference or else it becomes mainly a matter of the attitude of mind. As explained above, the attitude of mind for which counsel stands cannot be legally, factually or as a matter of recognisable policy be allowed to override the attitude which is at the back of the award. In these circumstances, I do not find myself prepared to alter the award.

18. The appeals are accordingly dismissed with no order as to costs. K. B. A. Appeals dismissed.