1976 PLP 373 (PLC)

Premier Tobacco Co. Ltd., Mardan v. Premier Tobacco Workers' Union 1970 P L C 126 rel. Naeem Sultan Butt for Appellant. S. M. Bukhari for Respondent. Regal Manufacturing Company Workers' Union hereinafter referred to as the petitioner-Union has brought the under consideration application under section 34 of the Industrial Relations Ordinance, 1969 against the Manage ment of Messrs Regal Manufacturing Company 130-Ferozepur Road, Lahore, hereinafter referred to as the respondent, praying that a direction might be issued to the respondent to pay wages for weekly holidays i.e. Sundays to all the workers of the establishment from the date of signing of settlement dated 13-5-1974 executed between the parties.

2. It is contended by the petitioner-Union that on 13-5-1974 a settle ment was arrived at between the parties during the conciliation proceeding. According to said settlement it was agreed with regard to demand No. 6 that the petitioner-Union was at liberty to take the matter to the Court of law for decision. Demand No. 6 pertains to weekly holidays with pay. It has further been pleaded by the petitioner-Union that by virtue of the provisions of section 35 of the Factories Act, the workers were entitled to be paid weekly holiday and that all the workers were paid on daily wages basis but they were not being paid for the Sundays. It has also been claimed by the petitioner- Union that it was a registered Trade Union and being the only registered Trade Union in the respondent's establishment and having its members more than 1/3 of the total workmen employed in the establishment was the Collective Bargaining Agent.

3. The respondent resisted petition and pleaded inter alia that the petitioner-Union was not certified to be the Collective Bargaining Agent of the respondent's company, and therefore it had no locus standi to raise the present dispute and further that no right guaranteed or secured to the petitioner-Union under any law or award or settlement had been denied to it and as such the application was not maintainable.

4. On merits the respondent pleaded that the workers were on daily wages basis and therefore they were not entitled to any holiday with pay.

5. Rafiq Majid, General Secretary of the petitioner-Union appeared as P. W. 1 and produced Exh. P. 1 photostat copy of the registration certi ficate. He stated that there were about 40 workers employed in the respondent's factory and all of them were members of the petitioner-Union. He further deposed that the Management had executed a settlement with the petitioner-Union on 13-5-1974 copy whereof is Exh. P.

3. He disclosed that no wages were paid by the Management to the workers for weekly holidays.

6. No evidence has been led in rebuttal by the respondent.

7. The first point for determination is as to whether the petitioner-Union in the absence of a certificate of being a C. B. A. is to be deemed as the C. B. A. in the respondcnt's establishment. In this behalf the claim of the petitioner-Union is that it is the only registered Trade Union in the res pondent's establishment and that it had its membership more than 1/3 of the total workmen employed in the said establishment. Section 22 (1) of the I. R. O. provides that where there is only one registered Trade Union in an establishment or a group of establishments, that Trade Union shall, if it has as its members not less than 1/3 of the total number of workmen employed in such establishment or group of establishments [upon an application made in this behalf be certified by the Registrar in the prescribed manner] to be C. B. A. for such establishment or group. It is noteworthy that prior to the amendment brought about by Ordinance XIX of 1974 for the words shown in the square brackets their existed words "be deemed". Obviously the Amend ing Ordinance XIX of 1974 has the prospective effect and has not retrospec tivity involved in it. The petitioner was certified Union on 11-3-1972. Total number of workmen employed in the respondent's establishment were members of this Union. The respondent acknowledging the petitioner-Union as the Collective Bargaining Agent executed the settlement dated 15-3-1974 copy whereof is Exh. P.

3. In the circumstance the petitioner-Union was already C. B. A. when the amending Ordinance XIX of 1974 came into force on 10-10-1974. It is therefore concluded that the petitioner-Union is the C. B. A.1 for the respondent's establishment and the objection raised to this effect by the respondent is overruled.

8. The second preliminary objection raised by the respondent is that no right guaranteed or secured to the petitioner-Union under any law, award or settlement is being sought to be enforced through present petition. It is evident from the contents of the settlement Exh. P. 3 that the petitioner- Union raised demand No. 6 regarding weekly holiday with pay. It was agreed between the parties through the settlement Exh. P. 3 that the Union would be at liberty to take this matter to the Court of law for decision. It has been urged by the petitioner-Union that by virtue of the provisions of section 35 of the Factories Act, the workers to whom the petitioner-Union represents are entitled to the paid weekly holiday. This would show that through the present petition the petitioner-Union seeks to enforce the right guaranteed or secured to it by the settlement dated 15-3-1974 (copy Exh. P. 3) read with section 35 of the Factories Act, 1934.

9. As regards the merits of the case, section 35 of the Factories Act provides that no adult worker shall be required to work in a factory on Sunday unless he had or will have a holiday for a whole day on one of the 3 days immediately before or after that Sunday. The afore-mentioned pro visions clearly show that weekly holiday has been compulsory. There seems to be no point in making weekly holidays compulsory by the legislation if the holiday is to be without payment. It appears to be the clear intention of the law makers that an employer must allow to his workers a weekly holiday but must pay for the same. In the Premier Tobacco Co. Ltd., Mardan v Premier Tobacco Workers' Union (1970 P L C 126), Industrial Appellate Tribunal of West Pakistan held that under section 35 of the Factories Act, 1934 daily rate(workmen are entitled to wages for Sunday. It was observed that the under lying idea under section 35 of the Act was to help the workman and not to deprive him of his wages and thereby reduce his income. The daily rate (workers generally belong to persons who must work for every day to work enough to get food and clothes however meagre for them and their families They cannot afford luxury of enjoying a holiday without earning any thin, for four days in a month. The law does not make any distinction between the daily-rated workers and monthly-rated workers.

10. In the light of what has been said above, it is concluded that the workmen employed by the respondent's establishment on daily wages basis are entitled to be paid weekly holidays i.e. Sundays.

11. In this view of the matter, the application of the petitioner-Union is accepted and it is directed that the respondent shall pay wages for weekly holiday i.e. Sundays to all the workers of his establishment from the date of signing of the agreement dated 15-3-1974.