1981 PLP 47 (PLC)

(a) The Agricultural Engineering Department agreed to putting into effect the orders of the Sind Government for adoption of the Schedule of Wages Rates in respect of the workmen in the Agricultural Engineering Department ; and (b) The Agricultural Engineers were required to work out wages of various categories of workers according to the Schedule of Wages Rates, 1974.

3. The Agricultural Engineers worked out the wages of each category of workmen employed in the Agricultural Engineering Department on the basis of the daily rates of wages as given in the Schedule of Wages Rates 1974, which were multiplied by 30/31 to arrive at their monthly wages, and it is common ground that for a period of 4 months from 1‑8‑1974 to 30‑11‑1974, the employees of the Agricultural Engineering Department were paid wages as so worked out. Apparently on an objection raised by the Finance Department, payment in accordance with these rates was stopped and the workmen were paid wages in accordance with the National Pay Scale, which they had been receiving prior to the enforcement` of the agreement in question. Aggrieved by this decision of the Government, the 3 Unions, through their General ‑Secretaries, preferred applications under section 34, I. R. O., demanding payment of wages to workmen in accordance with the rates as worked out by the Committee of Agricultural Engineers.

4. The applications filed by the 3 General Secretaries were resisted by the respondents herein on the main grounds, firstly, that the purported agreement, dated 15‑7‑1977, was not, an enforceable settlement for the purposes of the I. R. O., secondly, that the agreement did not have the approval either of the Government or of the Secretary Agriculture, who was the employer of the workmen in the Agricultural Engineering Department, and that finally the Committee of Agricultural Engineers had no authority to work out the wages of the workers of the workmen on daily wages, since they were employed on monthly basis. These contentions found favour with the learned Labour Court which accordingly dismissed the applications preferred by the 3 General Secretaries. Aggrieved by this decision, the workers, through their General Secretaries, have come up to this Tribunal in appeal.

5. I have heard Mr. Abdul Majeed, the learned Representative for the Unions, Mr. Kamal Mansur Alam, who appeared for the Director and the Officers of the Agricultural Engineering Department, and Mr. Masood Mirza, who represented the Finance Department, Government of Sind. The 3 issues which fall for determination in these 2 appeals are‑ (i) whether the Director or the Executive Engineers, Agricultural Engineering can be deemed to be the employers of the workmen in the Agricultural Engineering Department for the purposes of the I. R. O. ; (ii) whether the document, dated 15‑7‑1977, can be deemed to constitute a settlement agreement under the I. R. O. ; and (iii) whether the Committee of Engineers has worked out the wage rates of the workers in accordance with the above settlement.

6. For the purposes of determining the first issue, it is necessary to refer to the definition of 'employer' as given in clause (viii) of section 2, I. R. O. The relevant part of the said definition reads as follows :‑ '(viii) `employer' in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employs workmen to the establishment under a contract of employment and includes‑

(e) in relation to an establishment run by or under the authority of any Department of the Federal Government, the authority appointed in this behalf or, where no authority is appointed, the Head of the Depart ment ;

7. It was contended by Mr. Adbul Majeed that according to the above definition, employer primarily means the person or body of persons who employs workmen in an establishment. He submitted that all the work- charged employees in the Agricultural Engineering Department were appointed by the Agricultural Engineering, and as such the latter were the employer of such employees. In support of his contention he relied upon the evidence of Aftab Ahmad, Director Agricultural Engineering, and Yaseen Khan, Executive Engineer, Agricultural Engineering. The learned Representative conceded that the authority specified in clause (c) of the above definition also is deemed to be an employer, but he really comes in a secondary position and it is by means of the including device that he is treated as the `employer'. On the other hand, Mr. Kamal Mansur Alam contended that the Government and not the Executive Engineer was the employer of the workmen in the Agricultural Engineering Department and that the Executive Engineers were mere appointing authorities. In other words, he made a distinction between employer and the appointing authority. In my opinion, no such distinction can reasonably be inferred from the language employed in the definition of) employer as given in I. R. O. The basic qualification of the employer, according to the definition, is that he employs the workmen. In Webster's Third New International Dictionary, the word `employer' has been defined as "to use or engage the services of to provide with a job that pays wages or a salary

" It would thus appear that the word `appoint' is practically synonymous and interchangeable with the word `employ'. Since, admittedly the Agricultural Engineers are the appointing authorities in respect of the work‑charged employees in the Agricultural Engineering Department, I am inclined to agree with the view that they are deemed to be the 'employers' in respect of them. This is not to deny or dispute the position that the Head of the Department, i. e., the Secretary, Agriculture, is also to be deemed, a provided in clause (c) of the definition, the employer of the said employees. However, clause (c) of the definition does not have the effect of excluding the appointing authority from the definition of employer'.

8. In regard to the second issue, namely, whether the agreement arrived at on 15‑7‑1977, which is recorded as minutes of the meeting, can be con sidered to be an enforceable settlement agreement for the purposes of the I. R. O., Mr. Abdul Majeed's arguments, in support of his proposition that it was an enforceable agreement, were firstly, that there was admittedly an industrial dispute pending between the parties as appears from the letter, dated 15‑3‑1977, from the Agricultural Engineer, Tando Jam, to the Director, Agricultural Engineering, secondly, that the demand in this industrial dispute, which related to the fixation of wages of the workers in accordance with the Schedule of Wages Rates, 1974, was discussed in the meeting held on 15‑7‑1977, thirdly, that this demand was mutually agreed upon by the officers of the Agricultural Engineering Department, including the Director and Executive Engineers, on the one hand, and the General Secretaries of the Workers' Unions on the other hand, fourthly, that this agreement was reduced into writing and was signed by the aforesaid parties and lastly, that copies of this agreement were sent to the Conciliator, as admitted by Mr. Shamsul Hassan Jafri, Assistant Director (Conciliation). Mr. Kamal Mansur Alam, however, submitted that the document in question cannot be considered to be either a settlement or an agreement arrived at otherwise than through conciliation, as envisaged in the I. R. O. Elaborating his arguments, the learned counsel submitted that the necessary requirements and pre‑conditions for an agreement/settlement under the I. R. O. are firstly, the existence of an industrial dispute, which is required to be raised by the C. B. A., in the prescribed manner; secondly, notice of strike, thirdly, reference of the dispute to the Conciliator, through whom the settlement should be reached, or there should be an agreement reached between all the parties otherwise than through the Conciliator, fourthly, the agreement/settlement should be in the prescribed form and finally, copies of the settlement/agreement must be sent to the prescribed authorities. The learned counsel submitted that even if it be conceded that there was an industrial dispute between the parties relating to the claim of the workmen for payment of wages in accordance with the Schedule of Rates of Wages, 1974, there was neither a notice of strike given by the C. B. A. to the Management, nor was the purported agreement in the prescribed form or copies thereof sent to the prescribed authorities. Now notice of strike is required to be given only in those cases where no settlement is reached between the employer and the C. B. A., as provided in sub section (3) of section 26, I. R. O. Since in the instant case, a settlement was reached between the Unions of workmen and the Management, no occasion for giving of a strike notice arose. However, the other 2 objections taken by Mr. Kamal Mansur Alam appear to be well‑founded. As provided in clause (xxiv) of section 2, I. R. O., the essential requirements of a settle ment are firstly, that it should be in writing, secondly, that it should be signed by the parties thereto, thirdly, that it should be in the prescribed form and fourthly, that copies thereof should be sent to the Provincial Government, the Conciliator and such other persons as may be prescribed. No doubt, the first 2 conditions, namely, that the settlement be in writing and that it should be signed by all the parties have been complied with in the instant case but not the remaining 2 requirements. Rule 70 of the Industrial Relations (Sind) Rules, 1973, provides that an agreement arrived at otherwise than in the course of conciliation proceedings shall be signed by the Represen tatives of the employer and the workmen in a meeting and such agreement shall be in Form `X'. Admittedly, the agreement is not in the said Form. Furthermore, even if it be accepted that copies of the agreement were sent to the Conciliator, as contended by Mr. Abdul Majeed admittedly copies were not sent to the Government and the other prescribed authorities. The question, therefore, that has to be considered is whether the failure to fulfil or comply with the above requirements still makes the agreement in question an enforceable one or denudes it of the status of an agreement settlement under the I. R. O. I am inclined to the view that since the Legislature has laid down the requirements for documents which can be considered as settle ment/agreement for the purposes of the I. R. O. a document will not have the status of an agreement/settlement under the I. R. O., unless it fulfils all such requirements. As the document in question, is neither in the prescribed form nor have copies thereof been sent to the Government and the other prescribed authorities, it in my opinion, be considered to be an agreement settlement for the purposes of the I. R. O. I am fortified in this view by several decisions of this Tribunal, some of which are reported as Williamsons & Co v. Workmen Union (AIR 1958 SC 30), Kaikobad Pestonjee Kakalia v. Employees Union (1975 P L C 198) and Ferozesons Ltd. v. Ferozesons Press Workers' Union (1975 P L C 377).

9. This brings me to a consideration of the last issue involved in the 2 appeals namely, whether the Committee of Executive Engineers acted in accordance with the minutes of the meeting of 15‑7‑1977, in working out the wages of workers of different categories on the basis of rates of daily wages, as given in this Schedule of Wage Rates, 1974. Now, according to the minutes, all that was decided, was that the Agricultural Engineering Department had no objection to putting into effect orders of the Govern ment for grant of wages to the workmen in the Agricultural Engineering Department according to the Schedule of Wages Rates of 1974. No specific direction was given to the Executive Engineers to work out the wages accord ing to the daily rates. That this omission was significant was soon realized and accordingly it was sought to be rectified by stating in the prescribed form of agreement, which was prepared following the meeting in which the agreement was reached that the wages of workmen would be fixed in accordance with the Schedule of Wages Rates, 1974, Vol. III, Part I, at `daily wage rates'. This form of agreement, however, cannot be taken into con sideration as admittedly it has not been signed by any party. As such, there appears to have been no agreement to the effect that the workmen would be paid wages according to the daily wages rates as given in the Schedule of Wages Rates, 1974. It is thus not known how the Committee of Executive Engineers worked out the wages of the workmen on the basis of daily wages rates. No doubt the Schedule of Wages Rates, 1974, contains 2 rates of wages, one column lays down the wage rates on monthly basis and the second column the wage rates on daily rates system. However, the daily wages rates are admissible only to casual workers, appointed to work for specific days only, and not to workmen who are employed on monthly basis, as is the case of the employees of the Agricultural Engineering Department. This position has been made clear from the letter addressed by the Committee, which prescribed the Schedule of Wages Rates, to the Additional Secretary, Finance Department. The Committee in this letter, which forms a part of the Schedule of Wages Rates itself, has explained that they have departed from the past practice of fixing daily wages of the worker at 1/25th of the minimum/maximum of the corresponding monthly scale of workers in that category, as it is not possible to secure services of a daily worker at such a rate and accordingly they have adopted the daily wage rates as paid according to the market practice. The market practice in respect of daily wage workers is to pay them only for days on which they are actually engaged or required to do work. Such employees are not engaged on monthly basis. Since the work‑charged employees in the Agricultural Engineering Department are employed on monthly basis and had all along been paid on that basis, it appears to be transparently wrong for the Executive Engineers to have adopted in the case of such workers the yardstick of daily wages and then fix or arrive at the monthly wages of such workers by multiplying their daily wages by 30 or 31, according to the days in the month. The Standing Rates Committee, in the letter to the Additional Finance Secretary referred to above, has given further indication of its intention that daily rates were not admissible to persons employed on monthly basis, by pointing out that no daily wages had been proposed for the clerical establishment as it was presumed that clerks are employed for the full complete months and not on daily wages. Similar argument would obviously apply in the case of the workmen on the Agricul tural Engineering Department who were employed for full complete months and not on daily wages.

10. On either view of the matter, therefore, I find no merit in these appeals and dismiss the same. Appeal dismissed.