P L D 1959 Supreme Court (Pak (PLP)

SHAHABUDDTN, J.‑--This‑is an appeal by special leave against 9 out of 55 findings in the dispute between the Sui. Gas Transmission Company Limited, Karachi, and its workers' Union which was referred to the industrial Tribunal consisting of Mr. Akhtar Hussain Khan, under S. 10 of the Industrial Dispute Act. The reference to the Tribunal was made by the Government of Pakistan, Ministry of Labour, and one of the questions for the consideration of which leave was granted by this Court was whether in this case the Central Government was the Appropriate Government" which alone could make a reference under the act. At the time the reference was made to the Tribunal, and also at the time special leave was granted the definition of the expression "appropriate Government" in the Act was as follows:‑ "(i) Appropriate Government means in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government, by a railway company operating the Federal Railway or in relation to an industrial dispute concerning a mine; oilfield, or a major port, the Central Government, and (ii) in relation to any other industrial dispute, the Provincial Government" The objection raised was that the "appropriate Government" with regard to the dispute in question was the Government of West Pakistan and not the Central Government. But in September 1958 by Act XXXI of 1958, this definition 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 word "port" and the words "the Central Government"; and it was also enacted that this amendment should be deemed to have "been made on the 14th day of October 1155. As the reference in the present case was made on 12th September 1957, and the dispute arose within the Federal Capital, the registered offices of the Company and the Union being in Karachi, one should have thought that this change in the definition of the "appropriate Government" made with retrospective effect could not have necessitated the consideration of the objection retarding the validity of the reference. But Mr. Fazal ur Rahman, the learned counsel for the appellant Company, strenuously argued that the above‑mentioned amending Act was ultra vires under the provisions of the late Constitution, because in the first place the Parliament had no powers to legislate in this matter as far as Karachi was concerned and secondly as the amending Act was in conflict with Article 6 of the late Constitution. The Argument on these points may be summarised as follows. Under Art. 211, (2) (b) of the late Constitution, the President had power to make such provision as he may deem necessary or proper with respect to the laws which were to be enforced in the Federal Capital. The Parliament had under cl (3) of that Article power to make laws in respect of the Federal Capital only in natters mentioned in the Provincial List and matters not numerated in any of the Lists. As industrial and labour disputes are contained in Entry 5 of the Concurrent List and not in the Provincial List, the Parliament did not have power to amend the Industrial Disputes Act so far as Karachi was concerned The result of giving the amendment retrospective effect is that even failure to comply with any direction in any award which was passed after 17th October 1955 and before the amendment has become punishable after the amendment and this contravened Art. 6 of the late Constitution under which no person shall be punishable for an act which was not punishable by law when the act was done. Alternatively, Mr. Fazal ur Rahman contended that the amended Act as far as the definition of the "appropriate Government" was concerned, was in conflict with the President's Order VI of 1958, and as the latter Order comes in the category of laws expressly preserved under the Laws (Continuance in Force) Order, 1958, while the amended Act falls under the said Order only in the general clause of "all laws * * in force in Pakistan * * immediately before the proclamation" by which the late Constitution was abrogated, President's Order VI of 1958 takes precedence over the Act in question so far as the definition of an appropriate Government was concerned. The argument was that, according to the President's Order, the Chief Commis sioner was the "appropriate Government" and, therefore, the definition of the appropriate Government as it stands after the amendment of the Act will have no effect with the result that the reference made should be regarded as invalid as it was made by the Central Government and not the Chief Commissioner. These contentions, which at first sight may appear plausible, break down completely on a scrutiny of the very provisions on which they are based. Article 106 of the late Constitution defined the respective spheres in which the Parliament and Provincial Assemblies could legislate. Under it, the Parliament could legislate for the whole of Pakistan exclusively in matters mentioned in the Federal List and concurrently with the Provincial legislature in matters of the Concurrent List, while the Provincial legislature could legislate exclusively in matters contained in the Provincial List, and concurrently with the Parliament in matters in the Concurrent List, as far as the Province was concerned. If the Constitution had not said anything further in this matter the Parliament could not have legislated for the Federal Capital in matters included in the Provincial List, as that area forms part of the Province of West Pakistan, but it was necessary to empower the Parliament to legislate in respect of Karachi even in Provincial matters. Clause (3) of Art. 211 was, therefore, enacted giving specific powers to Parliament to legislate for the Federal Capital in the field covered by the Provincial List. But from this it does not follow that, by getting this additional power, the Parliament lost the power to legislate exclusively for the whole of Pakistan, D including the Federal Capital, in matters enumerated in the Federal List or concurrently with the Provincial legislature in matters included in the Concurrent List. The objection based on Art. 6 of the old Constitution assumes that Government will launch prosecution in respect of failure to carry out any of the directions given in the awards made and notified between 14th October 1955 and the date of the amendment. We can see no reason for such an assumption. However, it has been held by this Court in Jibendra Kishore Achharyya Chaudhry and others v. The Province of East Pakistan and Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan (P L D 1957 S C (Pak.) 9), that "where a statute is not ex facie discriminatory but is capable of being administered in a discriminatory manner, the party challenging the constitutionality of that statute must show that it has actually been administered to the detriment of the particular class and in an unjust and prejudicial manner". There, the provision alleged to have been contravened was Article, 5 and, therefore, the reference was to discrimination. Here, reliance is placed on Art. 6, which, as stated already, lays, down that a person cannot be punished for an act which was not punishable by law when the act was done. It may be possible' under the amended Act to prosecute now a person who disregarded a direction given in an award, say of April 1956, on a reference made by the Central Government in respect of an industry not coming under the old definition of an "appropriate Government" though the award on that ground alone would have been void but for the amendment; but on a mere possibility of this kind the amending Act cannot be held to be void. Similarly, his alterative argument is devoid of force. It is true that the Federal Capital (Powers and Duties of the Chief Commissioner) (Declaration) Order, 1958, which is expressly validated in the Laws (Continuance in Force), Order, 1958, refers to Notification No. 3/4/82‑Kar. 11, dated the 21st October 1952, under which the 'Chief Commissioner was given all the powers of a Provincial Government, which included the power of making a reference under the Industrial Disputes Act, but this Notification was amended in November of the same year, by Notification No. 5/9/ 2‑Kar., dated the 17th November 1952, whereby words were introduced in the earlier notification, taking away from the Chief Commissioner powers regarding subjects specified in Item 32 in List 2 and Items 26 to 29 in List 3 of the Seventh Schedule to the Government of India Act 1935. Item 29 in List 3 mentioned above, includes "Industrial and Labour Disputes". When this aspect of the matter was pointed out by the learned Attorney‑General, Mr. Fazal ur Rahman relied on the fact that in the operative portion of the President's Order of 1958 reference is made to the Notification of the 21st October 1952 and not to its amendment of November 1952, and he argued that, therefore, it must be construed that the Order of 1958 conferred on the Chief Commissioner the same powers which were conferred on him by the Notification issued in October 1952. There is no merit in this contention. What was done in November 1952 was the amendment of the Notification of October 1952 and not its supersession by the issue of a fresh Notification. Therefore even after the amendment, the Noti fication remained one of October 1952, the amendment having become a part of the original notification. For instance, the Criminal Procedure Code now in force is the Code of 1898, but since its enactment there have been many amendments at different times; but when a reference is made in any other enactment to the Code of 1898, it means the Code as it stands amended up till the date of the reference. It cannot be said that, unless there is a specific reference to the several amendments, those amendments cannot be regarded as part of the enactment. It may, however, be pointed out that in the lst paragraph of the Preamble to the Order of 1958, the Notification of 1952 is referred to as excluding from the powers of Chief Commissioner all the powers excluded by the amending Notification of November 1952. The reference in this case was therefore made by the "appropriate Government" and the preliminary objections raised, by Mr. Fazal ur Rahman fail. It now remains to consider the findings to which this appeal relates. As stated already, out of 55 findings recorded by the Tribunal only 9 are appealed from. They cover Demands, 3, 4, 6, 8, 18, 24, 41, 42 and

49. The scope of interference by this Court with the findings of an Industrial Disputes Tribunal has been explained in the following passage in the foreword written by my learned brother Cornelius to Shafi's Analysis and Text of Tribunals' Award Vol. 1, 19.17 Edn. which was quoted with approval in this Court's judgment in Dalmia Cement Ltd. v. Dalmia Cement Workers' Union (P L D 1958 S C (Pak.) 153). "Although by Art. 160 of the Constitution of the Islamic Republic of Pakistan, as recently interpreted by the Supreme Court of Pakistan in the Remington Rand case P L D 1957 S C 170 an appeal may be entertained against an award of an Industrial Tribunal, yet it must be remembered that `the supervisory jurisdiction of the Supreme Court under Article 160 is a restricted jurisdiction', and while the Court may interfere to correct errors of law, it will do so only if `the law so mis understood or misapplied raises some general question of fundamental importance to the proper functioning of the Tribunal or the decision of the case'. Vide the case of Saeed v. Election Petitions Tribunal P L D 1957 S C

91. With the operative and detailed provisions of awards, the Court is not likely to interfere, except in extreme cases of patently unjust` proposals which are based on no evidence, or are made in defiance of the evidence". The findings to which this appeal relates have therefore be examined with reference to the scope of interference indicate in the above observation. Demand No. 3.‑The question for consideration was "whether in case of retrenchment the policy of "last come first out, should be strictly followed ?" The position taken by the Company in its statement on this point was that the Company had been generally following the principle "last come first go" in cases of retrenchment, that they were deviating from this principle in special cases and for good reasons, and that, therefore, the demand should be rejected. Before the Tribunal the Union contended that the management were dismissing the employees indiscriminately on the pretext of retrenchment and reorganisation and this had given a feeling of insecurity to the workers But this allegation was not substantiated. The Tribunal observed in this connection that the Union did not give any instance of arbitrary dismissal, and after noting that the Company's case was that it was following the general principle of "last come first out", it held that on this point there was no difference of opinion between the parties. It, however, added : "Neverthe less I would direct the Company that in case of retrenchment the normal policy should be `last come first out' and I allow this demand". The learned Advocate for the Company objected to Tribunal allowing the demand when on its own finding there was no difference between the parties on the principle to be followed. But the finding in effect is in favour of the Company as the Union had not cited even a single instance of arbitrary dismissal on the pretext of retrenchment. No interference is, therefore, called for. Demand No. 4.‑The question here was whether the dismis sal or discharge of the five employees mentioned in the demand should be enquired into with a view to see that justice was done. The case of the Union was that the first four employees were discharged and the fifth dismissed without justification and that all of them should be reinstated. The Tribunal did not accept the case of the Union in respect of the first four. It found that Irshad Hussain No. 1, was engaged as a temporary clerk in the Stores Department and was retrenched, but was engaged in another temporary vacancy and that he himself wrote to the Company that he did not claim the benefit of the previous service and that, as he was not anxious to pursue his case, the Union could not press it. With regard to Nos. 2 to 4, Driver Sultan Muhammad, Driver Abdul Qadir Khan and Peon Muhammad Salim, who were discharged on medical grounds, the Tribunal found that they were not discharged arbitrarily but because they were suffering from tuberculosis and that it was in their own interest to leave the service and undergo proper treatment. Then it went on to consider whether monetary benefits should not be given to them. It was argued before the Tribunal on behalf of the Union in respect of these persons that under Standing Order No. 11 they were entitled to sick leave for three months or pay in lieu thereof, but the Tribunal on a consideration of this point held that that Standing Order did not apply as it related to those cases where workmen were certified as unfit for work by the Company's doctor while they were still in the Company's employment. It was also found by the Tribunal that the rule which related to the discharge of employees on medical grounds was subsection (I) of Standing Order No. 14, and that under clause (ii) of that Order these employees were entitled to two weeks' notice or two weeks' pay, as they were daily‑rated work men. For this conclusion, the Tribunal relied on Standing Order No. 2 and held that because they had completed three months' probation they must be deemed to have become permanent. On behalf of the Company it was argued before us that whether monetary benefit should or should not be given to persons dis charged on medical grounds was not a point referred to the Tribunal, and it was also pointed out that under Standing Order No. 2, a probationer became permanent only when he had been confirmed in the post and that the mere fact of his having acted for three or six months, as the case may be, did not entitle him to confirmation automatically. In our opinion there is no force in the objection that the question referred to the Tribunal did not in terms include the monetary benefit to those medically found unfit, for the relief of monetary benefit given by the Tribunal was a part of the larger relief asked for viz., reinstatement. It is no doubt true that it is not correct to say, as the Tribunal has, that because under the Standing Orders the period of probation is normally three months, those who continued in service for that period should be deemed to be permanent, but Standing Order 14 (4) says that "a temporary workman as defined in rule (ii) (d) is not entitled to notice or pay in lieu thereof unless he has completed three months' satisfactory service, or has completed his period of trial which may be extended up to six months." Therefore, the three employees, who have been discharged on medical grounds, would be entitled to two weeks' notice or in lieu pay for two weeks, if they have completed three months' satisfactory service. From the statement of the Company on this demand it is seen that driver Sultan Muhammad and peon Muhammad Saleem had worked for more than three months before it was discovered that they were suffering from T. B. and it is not stated there that their work was not satisfactory during that period. But driver Abdul Qadir according to the Company's statement had worked for less than three months before it was discovered that he was suffering from T. B. He was not therefore entitled to notice. The award in his favour is therefore against the rule while that given in favour of the other two persons accords with the rules. As regards the fifth employee, Khurshid Ahmad, the charge against him was that by negligence and carelessness he cracked a cylinder of the Water Injection Pump. This charge was held by the Company's Officers to have been proved. The statement of the Union in respect of this charge begins as follows:‑ "This. Fitter is concerned with a breakage of cast iron pipe accidentally. There was no wilful negligence or carelessness or any mala fide intention on his part". It then goes on to say that his record of service was untainted and that without any explanation, notice or warning he was discharged on grounds of neglect of duty and he had not been reinstated. The latter part of his statement viz. that there was no enquiry was absolutely false for the record shows that a charge was framed, evidence recorded and the employee was given an opportunity to show cause against dismissal. The Tribunal interfered in this case not on the ground that the enquiry was not held properly but on the merits of the case. It constituted itself a Court of Appeal over the decision of the Management and came to the conclusion that the persons actually responsible were those who were working under the instructions of Khurshid Ahmad. That it was not the province of the Tribunal to go into the merits of the allegations but that its jurisdiction was only to see if there was a fair enquiry and the employee was given an opportunity to explain the charge was pointed out by this Court in Dalmia Cement Factory Case referred to above. However, the finding even on merits was obviously incorrect. It is observed in the award that it appeared from the evidence that two other workmen were actually working on this cast iron pipe and it was one of them who tightened the screw which broke the pipe, while Khurshid Ahmad was a little distance away and was giving instructions only". The Tribunal then concludes that there was no doubt that the breakage was due to the negligence and carelessness ''of the other two workmen and not of Khurshid Ahmad. With reference to the contention on behalf of the Company that Khurshid Ahmad was a fitter and was supervising the work and he alone therefore was responsible for the breakage, the Tribunal observed that it did not agree with that contention, because it was not proved from the evidence that he was tightening the screws which cracked the cylinder and that the blame far care lessness could not strictly speaking be thrown on him. Finally, it observed that the order of dismissal was not only against the evidence but also against the principle of natural justice. But it is significant that the case of the Union itself in respect of this employee was that he was "concerned with the breakage of the case iron pipe accidentally", and that there was no wilful negligence or carelessness or any mala fides on his part. The learned Advocate for the Union in supporting the finding of the Tribunal argued that Khurshid Ahmad was not proved to have been supervising the operation, but from the statement of the Union itself to which a reference is made above it is seen that Khurshid Ahmad was not unconnected with this incident. In its statement, the Company definitely alleged that the enquiry officer's report was that this was a case of gross carelessness on Khurshid Ahmad's part and the evidence discloses that Khurshid Ahmad himself admitted that he was directing the operation which resulted in the damage. The Tribunal seems to have been under the impression that he could not be held responsible unless he actually tightened the screw. But it was the duty of this employee who was directing the operation to see that the tightening was carefully done. One of the employees who actually tightened the screw, Nawab Mian, stated in his evidence that he warned Khurshid Ahmad against his direction for further tightening being made as is seen from the following:‑ Q.‑"Did you tell the fitter that age of the fluid pump is already broken and you have to be careful ? A.‑Yes. Q.‑Why did you tell, the fitter to take more prosecution (sic) in tightening? A.‑Because as I was tightening I felt the strain on my hand and I was afraid that something will break as in case of other. Q.‑When you told him to be more careful, did he acknow ledge or comment on it? A.‑The fitter said "it will not break, you keep on tightening". Then follows this note:‑ "Mustafizar Rahman also agrees with Nawab Mian and also states that he was called and asked to tighten the gland and They have to obey the fitter", It does not appear from the record that Khurshid Ahmad cross‑examined Nawab Mian on this part of his statement. He put a question to him but that does not relate to his having given the direction which Nawab Mian mentioned in the above portion of his evidence. His own evidence discloses that he was supervising the tightening of the screw which led to the damage. It is significant that when he was asked if he was specifically warned by Nawab Mian against further tightening which he had ordered, his answer was that he did not remember if he was so told by that employee. It is thus seen that the conclusion of the enquiring officer was amply justified and so also the action taken by the management. But, as stated above, the real defect in this finding is that the Tribunal travelled beyond its jurisdiction in going into the merits when it was clear that there was a fair enquiry. On this ground alone the finding has to be regarded as vitiated. Reference has however been made in some detail to the merits in order to show how carelessly the Tribunal dealt with the matter. It appears to have proceeded on some impression it had vaguely formed about the case regardless of the facts and the limits of its own jurisdiction. This is a case of clutching jurisdiction and recording a finding in defiance of evidence. Demand No. 6.‑This demand as stated in the reference is as follows ‑‑ "Whether all the employees working against permanent vacancies be made permanent?" The contention before the Tribunal put forward by the Union was that all employees who had been working as temporary hands in permanent vacancies should be confirmed forthwith and the Company should not treat them as temporary indefinitely. The case of the Company was that its organisation was still in an evolutionary stage, that they had confirmed majority of workmen and the remaining would be confirmed as soon as practicable. A list showing the permanent posts and the number of temporary workmen in those posts was filed before the Tribunal. The Tribunal observed that the correctness of this list was not challenged by the Union but that it was argued on its behalf that workmen who had completed the period of probation should be automatically made permanent. After noting this contention, the Tribunal observed as follows:‑ "A permanent workman has been defined in the Standing Orders as a workman who has been engaged in a permanent vacancy and who has completed his probationary period and has been confirmed. I would, therefore, direct the Company to follow the provisions of the Standing Orders in this connection and allow the demand accordingly". This finding needs clarification. There is no comment on the argument of the Union that the period of probation when completed should be automatically followed by confirmation. From the fact that after stating this contention the Tribunal proceeds to refer to the definition of a permanent workman and then directs the Company to follow the provisions of the Standing Orders, two conclusions are possible. One is that the Tribunal accepted, the contention of automatic confirmation after the period of probation is completed and considered that the definition in the Standing Orders of a permanent workman meant such automatic confirmation. The other conclusion is that the contention cannot be accepted and the Company should follow what is stated in the Standing Order which clearly means that the employer has discretion after the completion of probation to confirm or not to confirm. Having regard to the fact that, as has already been seen, during the discussion on Demand No. 4, the Tribunal was inclined to the view that as soon as a workman completed the probation automatic confirmation should follow, it appears to me that the Tribunal drew the first of the above two conclusions which is obviously not correct. Standing Order, 2, defines a permanent workman as one who has been engaged to fill a vacancy in a permanent establishment and who has com pleted his probationary period and has been confirmed in his post. The probationer is defined as a workman provisionally employed to fill a vacancy who has not been confirmed in his post. The probationary period will normally be three months, but may be extended up to six months. From this it is clear that the management should at the end of the probationary period either confirm or discharge a person but should not keep him as temporary in a permanent vacancy beyond the probationary period. It was admitted and the statement filed by the company shows that there are still some permanent posts in which men are acting temporarily. By allowing the demand the Tribunal apparently meant that such men should be confirmed, but as has been stated already the rules give the management a discretion in the matter of confirmation. The finding, we think, should stand as clarified above. Demand No. 8.‑The case of the Union in its statement was that administrative, clerical and other categories of staff' should be affiliated with Head Office staff and given the same privileges as those enjoyed by the latter. The reply of the Company was that as no reasons were given for the demand, it should be rejected. It then stated "without prejudice to the above the physical requirements of operating the pipeline govern the terms and conditions". The Tribunal after noting that the Union did not state exactly what the special privileges were which the staff at the 'Head Office enjoyed but which the staff employed elsewhere did not, observed that in the interest of the industrial peace it would recommend to the company to grant to the staff working away from the Head Office the same privileges and amenities which were being enjoyed by those working at the Head Office. Having said so, it allowed the demand. This is self contradictory. The very fact that it said that it could only make a recommendation is inconsistent with the allowing of the demand. Even for the purpose of making a recommendation there was hardly any material before the Tribunal. As matter of fact it complains that the Union did not state exactly what those privileges were which employees working away from the Head Office did not enjoy. Then again, a discrimination between these two sets of employees is reasonable as the conditions in which they work are not the same. The recommendation as contended by Mr. Fazal ur Rahman was not based on any material or consideration of the relevant points affecting the question. The direction is patently unjust. Demand No. 18.‑‑The Company is running a primary school for the children of the employees at Sui. The Union made this demand to obtain similar educational facilities for the workers at Sui Gas Karachi Terminal. It was stated in their written statement that the Management should not discriminate between one employee and another in any matter whatsoever. The Company in its reply pointed out that the facility demanded being not for the employees but for their children it did not constitute an. industrial dispute, that providing educational facilities was the responsibility of the employees themselves or of the public authorities, that as a matter of grace a school for the employees' children was being run at Sui and that it was not fair or reasonable to burden the Company with additional expense against its wishes. The Tribunal following a Madras decision of 1956, which is referred to in the award only as A I R 1956 Mad. 856, but which could not be traced even by the learned advocate for the Union, held that a demand of this nature could be an industrial dispute and that the Tribunal was bound to follow that decision. It then went on to observe that there were 175 workers at Karachi Terminal which is situated on the Country Club Road an area not yet fully developed and that the children of the employees could not conveniently go to distant places for their primary education. The Tribunal, therefore, accepted the demand observing that the Company had only to engage a few teachers and the expense would not be more than a few hundred rupees per month and therefore the financial burden on the company would be almost negligible, while the advantage to the industrial workers would be very great. This award is to say the least unsatisfactory. The Tribunal overlooked the fact that the Standing Order does not cast on the Company responsibility for giving the children of the employees free educational facilities. It did not even enquire as to how far the nearest school to Karachi Terminal was and whether the conditions from this point of view obtaining at Karachi terminal were in any manner similar to those at Sui. As regards the authority which it felt bound to follow a wrong reference was given which the learned Advocates on both sides were unable to trace and it is surprising that the Tribunal con sidered itself bound‑to follow a decision of Madras pronounced in 1956. It does not even state why in that decision such a demand was considered as coming within the definition of an industrial dispute. In any case, the Tribunal should have realised that before allowing the demand it should have before it enough of material to justify the facilities asked for being granted. The decision in favour of the Union was not on a consideration of the merits of the demand but because the expense to the Company would be negligible. This was a wholly wrong approach to the question and clearly indicates that the Tribunal dealt with this matter according to its own ideas of social justice and not on facts placed before it. Demand No 24.‑The question here is whether overtime allowance should be allowed to all drivers on the same scale and lines as for drivers working at Headquarters. The case of the Union in their statement was that there should be no discrimina tion between the two sets of drivers and that overtime allowance should be calculated on the basis of double the daily wages plus lunch allowance, travelling allowance, etc. In its reply the Com pany mentioned the different rates payable to the two sets of drivers and explained the justification for the discrimination. After mentioning the contentions of both sides, the Tribunal pointed out that the normal working hours for pipeline drivers were forty‑five hours a week and for those working at Head quarter were about 31 hours a week, and it observed "Thus the opportunity for working overtime for the pipeline drivers is greater than for the Head Office drivers". It then proceeded to the conclusion that in its view there should be a uniform rate for all drivers whether they are working at the Head Office or at other places, and it gave a direction to that effect. Overtime allowance is granted for extra work done and not to serve as a source of additional income; and discrimination between these sets of drivers is reasonable as the conditions in which they work are different. The Tribunal did not take this into consideration at all; nor did it enquire as to whether similar discrimination was not being made in other companies who have employees working both at Karachi and at other places. It seems to have been under the impression that it could give any direction which seemed to it fair whether facts of the case justified it or not. The only reason given by the Union was that there should be no discrimina tion. Obviously this was not a sound reason. Discrimination h is necessitated by the difference in conditions. The demand should have been rejected on that ground itself. Demand No. 41.‑The Union's statement in respect of this demand is as follows: "All daily‑rated employees should be paid overtime for the full day, if called on Sunday and Holiday plus leave in lieu and the present practice to take half hour duty and give half hour overtime and spoil the whole holiday should cease forthwith". In its reply the Company explained that the existing practice was to pay for work done on Sundays and holidays according to the rates as applicable to factory workers under the Factories Act Ss. 35 and 37 and to pipeline workers' under the Company rules. The demand it was submitted was not reasonable and should be rejected. The Tribunal directed that the provisions of the Factories Act should be strictly followed. It finally said that it allowed the demand accordingly. On behalf of the Company it was contended before us that the Factories Act would apply only to workers at the factory and not to those who work at the pipe lines and that to the latter the Company's Standing Order would apply. The difference between the Act and the Standing Order on the point under consideration is that while under the Factories Act leave is given in lieu of work on holidays in addition to over time payment, the Standing Orders allow only extra payment and not extra leave. The Tribunal proceeded on the assumption that all the workers came under the Factories Act though the Company contended before it that to the pipe‑line workers the Company's rules applied. On behalf of the Union it was argued before us that even the workers at the pipe‑lines were covered by the Factories Act and the learned advocate for the Union relied on the definition of "factory" in the Factories Act, but no evidence was led to show that the requirements of the definition were satisfied in respect of the pipe‑lines. That being so, we consider that the distinction made by the Company should be upheld and the award should have been that the employees working in the factory should be covered by the Factories Act and to those who work at the pipe‑lines the Standing Order should apply. It was also argued by the Company that this award should not be applied to shift workers, but it obviously does not apply to them as the next demand is specifically in respect of that class of Demand No. 42.‑The question here is whether all shift- workers called on duty on Sundays and holidays should be paid either for 24 hours' overtime or eight hours' overtime plus leave in lieu. The case of the Union was to the same effect as in respect of Demand No.

41. In its reply the Company stated that the existing practice was that it paid for work done on Sundays and holidays to Factory workers under the Factories Act, (Ss. 35 and 37) and to pipe‑line workers under the Company rules and that the practice followed by the Company was reasonable. Before the Tribunal it was contended on behalf of the Union that both daily rated and monthly‑rated workers should be paid double the rate under the Factories Act for work on holidays. The reply of the Company was that shift workers were engaged on the clear under standing that it would be the normal part of their duty to work on holidays. The Tribunal observed that this was not mentioned in the Standing Orders of the Company and went on to say that the point for decision was whether the workers called on duty on a holiday should be paid double the rate, that the Factories Act contained clear provisions and that those provisions should be followed. But under the Standing Orders of the Company the monthly‑rated employees are not allowed any extra payment for working on holidays, while the daily‑rated workers are given double their daily wages for such work. The Factories Act does not make a difference between these two sets of workers in the matter of payment for extra work. The Tribunal has assumed that all the employees come under the Factories Act, but as shown in the discussion in respect of the previous demand the distinction between the two sets of workers has' to be maintained on the material before us. As pointed out by the Tribunal the Standing Orders do not contain a specific provision that shift workers cannot claim overtime payment; but under the Standing Orders only daily‑rated men are entitled to such payment and it was not shown if there are shift worker amongst the daily‑rated men. It was however stated that there are shift workers amongst those who work at the pipe‑lines and it was therefore contended that the award should be confined to those shift workers to whom the Factories Act applied. As on the material before us it cannot be said that any part of the pipe‑lines comes within the definition of‑ factory, the amendment of the award asked for seems to be reasonable. Demand No. 49.‑Under this demand the case of the Union before the Tribunal was that the maternity expenses of the wives of the employees living in camps and at Sui should be borne by the Company. The reply of the Company was that as it was already providing generous medical facilities to its employees it was not willing to add maternity benefits to workers' wives to the list of those facilities. The Tribunal after noticing these con tentions did not consider whether the Standing Orders required the Company to afford this facility to the family of the employees but proceeded to allow the demand on the ground that‑ "When the Company is providing free medical help to the employees and their wives and children, and even paying the expenses of consultations with lady doctors, there is no reason why a small benefit like the maternity benefit should be denied. In the present case it is all the more necessary because some of the places are far off the centre of the district headquarters". Here, the Tribunal has proceeded to create a novel obligation upon the Company which cannot be justified upon law or precedent or any material before the Tribunal. The learned Advocate for the Union was not in a position to cite any other instance where a similar benefit was given to the wives of the employees, nor could he draw our attention to any provision of law or any decision laying down that the, management has to furnish such facilities to its employees. This finding was, therefore not at all justified. The above analysis of the findings shows that the Tribunal did not deal with the matter before it in the manner expected of a functionary exercising judicial power. Its approach to questions covered by the demands 8, 18, 24 and 49 was that of a benevolent despot, while in respect of Khurshid Ahmad (Demand No. 4) jurisdiction was clutched and a conclusion was reached on some vague impressions and not on ‑the evidence. It is true that a Tribunal dealing with an industrial dispute is not al Court in the sense that it is strictly bound by the rules of evidence but that does not mean that it can act on mere conjecture and its own peculiar ideas of social justice. It is obligatory on its part to act within the jurisdiction and according to the law applicable to the matter in dispute: We, therefore, allow the appeal fully in respect of Demands Nos. 8, 18, 24 and 49 and partially in respect of the Demands Nos. 4, 41 and

42. In respect of Demand No. 4 we set aside the finding that Driver Abdul Qadir Khan should be given pay for two weeks and that Khurshid Ahmad should be re-instanted. As regards Demands Nos. 41 and 42 the findings are modified as indicated in the discussion relating to them. The appeal relating to the findings on the other two demands viz. Demands Nos. 3 and 6 is dismissed with the clarification added to the finding on Demand No.

6. There shall be no order as to costs. A. H. Order accordingly.