2005 PLP 530 (SCMR)

"Besides the above, we have also examined the merits of the case and do not find any error or illegality in the order of the learned Single Judge in Chamber. Furthermore, the proposition canvassed by the appellants in the present matter has already been adjudged and determined by the Division Bench of the Sindh High Court in C.P. No.P‑639 of 1995, which does not support the view point of the applicants."

4. Learned counsel for appellants contended that according to the Act, 1968 and the scheme framed thereunder, the workers are entitled to the entire interest, which has accrued on allocated funds, established under section 3(1) of the Act, 1968.

5. On the other hand learned Deputy Attorney‑General submitted that under paragraph No.4(d) of the scheme, a worker was not entitled to receive the amount of interest exceeding Rs. 3,000 at the time when writ petition was filed and now Rs.6,000 as amended under paragraph 4(d) of the scheme. The balance amount of the annual allocation funds, constituted under section 3 of the Workers' Welfare Fund Ordinance, 1971 shall be credited to the fund created under Ordinance, 1971. According to him in identical case of National Tanker Company (Pvt.) Ltd. v. Federal Government of Pakistan 1999 YLR 650 the High Court of Sindh vide judgment, dated 3rd March, 1998 has held that "the workers shall not be entitled to the profit accrued on the allocated funds".

6. We have heard the learned counsel for the parties and have gone through the various provisions of the Act, 1968, as well as the scheme appended therewith under section 2(c) of the Act, 1968. As per section 3(1)(b) every company falling with the meaning of Companies Act, 1913 is bound to establish the Workers' Participation Fund out of 5 % of its profits. For reference section 3(1)(b) and (2) are reproduced hereinbelow:‑‑ "(3) Establishment of fund.‑‑‑ (1) Every, company to which the scheme applies shall‑‑‑ (a) .................................................................................. (b) subject to adjustments, if any, pay every year to the Fund not later than nine months after the close of that year, five per cent of its profits during such year, which shall, where the accounts have been audited by any auditor appointed under section 23B of the Industrial Relations Ordinance, 1969 , (XXIII of 1969) be assessed on the basis of such audit; and (c) . (2) The amount paid to the Fund under clause (b) of subsection (1) in relation to a year shall be deemed to have been allocated to the Fund on the first day of the year next succeeded that year.

7. It may be noted that for the purpose of management of funds, after its establishment by a company, a Board of Trustees has to be constituted under section 4 of the Act, 1968 and under para.4 of the scheme, procedure has been prescribed for the purpose of distribution of benefits to the workers. For convenience para. 4 of the scheme is reproduced hereinbelow:‑‑ "(4) The distribution of shares amongst the above three categories of workers is in the ratio of 4:2:

1. The lowest paid are given the maximum amount and the other two categories in proportion to the above prescribed ratio. Workers with more than six months employment are eligible to the benefits or the profits sharing with the condition that no worker shall in any year be entitled out of the annual allocation to units exceeding Rs.6,000 in value."

8. It may not be out of context to note that the amount allocated or accruing to the funds has also been made available for investment under sub‑para. (7) of para.2 of the scheme, to the company for its business operations. The rate of interest, on such amount, which shall be invested/utilized by the company for its business operations, has been prescribed in paragraph 2 of the Scheme, which reads as under thus:‑‑ "(2) The company shall pay to the Fund in respect of the amount in the Fund available to it for its business operations as aforesaid interest at the rate of 2‑1/2 per cent above the bank rate or 75 per cent of the rate at which dividend is declared on its ordinary shares, whichever is higher. In case there is more than one class of ordinary shares on which different rates of dividend have been declared, then the weighted average of the different rates of dividend shall be taken for the purpose of determining of rate of interest. The interest to the Fund shall accrue on and from the first day of the year next succeeding the year in which the scheme becomes applicable to the company. Even when the company does not wish to utilize the amount available to it under sub‑paragraph (1), interest at the rate aforesaid shall be payable by the company for the period between the date of allocation of any amount to the Fund and the date of its investment under sub‑paragraph (7)."

9. Undoubtedly out of the allocated funds, a worker is not entitled more than Rs.3,000 or Rs.6,000, whatsoever the case may be, and if any amount is left due, it will be transferred to the fund constituted under section 3 of the Workers' Welfare Fund Ordinance, 1971, but this amount of Rs.3,000 or Rs.6,004 has nothing to do, as far as the interest is concerned, which accrues upon the amount of the allocated fund, if it has been utilized by the company in its business and has paid interest thereon, as envisaged under paragraph 2, reproduced hereinabove.

10. It is pertinent to mention here that High Court of Sindh, in its earlier judgment pronounced in C.P. No.D‑682 of 1991, while taking into consideration the above provisions of para.5, has opined that "the worker is entitled for the interest which has accrued on the investment of allocated funds" but in the subsequent judgment, learned Division Bench did not agree with this conclusion in the case of National Tanker Company (Pvt.) Ltd. (ibid) as petition filed by the company was dismissed on 3rd March, 1998. However, this judgment was challenged before this Court in Civil Appeal No.1231 of 1998 and vide judgment dated 18th February, 1998, authored by Mr. Justice Munir A. Sheikh (as he then was) it has been concluded that:‑‑ "(5) The High Court was justified in law in not granting relief of the refund of the said amount at present on account of non compliance of the provisions as to constitution of the Board of Trustees and intimation of their names to the Government and other formalities as mentioned in the judgment under appeal but the fact remains that the amount, profits accrued on the amount, is to be paid to the workers of the company after compliance with the provisions of law." Therefore, in view of above judgment of the Court, we are persuaded to hold that the amount of profit accrued on the allocated fund has to be paid to the workers of the company, after compliance with the provisions of law. Thus, for the foregoing reasons, appeal is allowed with no order as to costs. M.B.A./D‑17/S Appeal allowed.