P L D 1961 Supreme Court 329 (PLP)

H. S. Suhrawardy Senior Advocate Supreme Court (Muhammad Mozammal Huq Advocate Supreme Court with him) instructed by Siddique Ahmad Chowdhury Attorney for Respondent No. I. K. Hossain Advocate Supreme Court instructed by Shahabuddin Ahmad Attorney for Respondent No.

2. Respondent No. 3 : Ex parte. Dates of hearing : 18th, 19th, 20th and 22nd April 1961. CORNELIUS C. J.‑This is an appeal by special leave granted to the Karnaphully Paper :Mills Limited, and calls in question certain items in the award made by an Industrial Tribunal, in a dispute between the appellant Mills and the Union of their workers. The charter of demands by the Union was presented on the 2nd November, 1957, and a reference was made by the Government to the Industrial Tribunal on the 4th December, 1957. The award was given on the 31st January, 1959. It has been accepted by the appellant Mills in relation to a considerable number of the heirs, and is resisted in respect only of four items, namely:‑ (1) grant of forest allowance, (2) certain improvements in pay scales, (3) increased salary allowed to three employees, and (4) orders of re‑instatement in respect of eleven employees. In this case also as in the case of the British Exchange Banks (C. A. No. 35‑D of 1959) which is being decided today, the appellant Mills were allowed to raise the question founded upon the decision of this Court in the case of the Pakistan Match Company ((1959) 1 P S C R 331= 1960 P L C 205=P L D 1959 S C 337), that the entire proceedings were bad and should be set aside, on the ground that the reference by the Government was of a "general industrial dispute" without specification of the points in issue, and that the Tribunal had actually adjudicated upon questions which he had ascertained for himself That contention was not accepted in the Banks' case, and we reject it in this case as well and for the same reasons, namely, that here there was before the Conciliation Officer a charter of demands, and between the date on which he reported failure to the Government, and the date of the reference, there was a reasonable interval of time sufficient to raise the presumption that the Government before referring the dispute had become cognizant of the issues which were involved, and was therefore not referring the matter blindly, as was found to be the case in the judgment in the Pakistan Match Company's case. Moreover, the appellant Mills submitted to the jurisdiction of the Tribunal in respect of matters included in the charter of demands, and since the announcement of the award, they have accepted certain of the decisions included therein, and are, as has been stated above, objecting only to a few of the decisions upon demands included within that charter. They also object to certain orders of rein statement made in respect of persons whose cases were not included in their charter, viz., those dealt with under Demands 2M to 2Y in the award. The latter objection is conceded before us by Mr. Suhrawardy for the Union, and, in our opinion, that is a reasonable solution of a dispute such as that which has been raised on the point of the Tribunal's jurisdiction. A Court mint not hesitate to avoid everything which is done by a judicial or a quasi‑judicial body beyond its jurisdiction, but we do not find that in this case, the defect in the order of reference by which jurisdiction was conferred on the Tribunal is of so fundamental a nature as it was found to be in the Pakistan Match Company's case. We adhere at the same time to the reasons which we have given in the judgment in the precedent case which go to illustrate the deficiencies apparent in the reference of a "general industrial dispute" and the difficulties which are apt to arise when a dispute is so referred without specification of issues. Action by a Government referring a dispute in that mode to a Tribunal cannot be approved, but in a case where it may be presumed that although the order was made in that form without specifica tion of issues, the Government were in fact apprised of the points of difference which had given rise to the industrial dispute, there the reference need not be avoided, especially where the parties have submitted to it and having duly presented their cases before the Tribunal have gone further and accepted a number of the, Tribunal's decisions. Accordingly, we hold that the proceeding 1s before the Tribunal are not susceptible of being avoided entirely by reason of the reference to the Tribunal being of a "general industrial dispute" without specification of issues. We proceed to consider the conclusion of the Tribunal on the particular items mentioned above. It is complained by Mr. Fazlur Rahman that while the demand for a forest allowance was in purely general terms, and asked only that it should be granted to all persons working in the forest instead of being allowed only to a few, the award on the subject is of an elaborate nature, and has the effect of altering the pay scales of all workers in the forests including those who are already in receipt of forest allowance. What had been brought to the notice of the Tribunal was that workers in the lowest grade in the forest received a start of Rs. 20 more than the corresponding workers at the Mills, and further when any workers from the Mills were deputed to work in the forest, they were given a forest allowance of Rs.

20. The claim was thus for grant of a forest allowance to persons who were engaged for work in the forest and were actually working there in posts above the lowest grade. What the Tribunal had done is to raise the starting salary of the lowest grade to Rs. 95 which is Rs. 25 more than that of the correspond ing workers at the Mills, and to settle fresh grades for the Assistant Supervisors, Supervisors and Senior Supervisors, starting at Rs. 25 above the bottom of their existing grades, but retaining the top of the grade at the same figure. In the case of the low paid workers, the top of the scale which was Rs. 110 has been increased to Rs. 125, that is by Rs. 15, while the bottom of the scale has been increased only by Rs.

5. It is urged, and we think with force, that all this interference with settled grades of pay was wholly uncalled for, and is calculated to disturb the pay structure of the Mills' employees. The Tribunal had no material to go upon for the purpose of thus interfering with the Company's pay scales. At the most, it was a question of allowing forest pay. Mr. Suhrawardy for the Union appeared to agree that what had been done by the Tribunal in this case was in excess of the maximum which he was required to do under the demand of the workers. We are impressed by the circumstance firstly that the lowest grade of workers in the forest are actually given Rs. 20. as a supplement over the salaries of equivalent workers at the Mills, and that an equal allowance of Rs. 20 is given to all workers from the Mills who are sent to work in the forest. That arrangement, in our opinion, fairly concedes that the con ditions of working in the forest, as compared with those at the Mills, justify the grant of a supplement. We consider that on these facts, there is no justification for denying an equal forest allowance of Rs. 20 to all other workers in the forest, namely, those above the lowest grade who have been engaged for work in the forest, and we allow the appeal of the Mills on this point, and direct accordingly. The interference by the Tribunal with the general pay grades is objected to although it is of slight nature, i.e., that the lowest grade which is Rs. 70‑85 has been increased to Rs. 80‑95, and the next lowest grade which is Rs. 90‑110 has been increased to Rs. 95‑115, i.e. an increase of Rs. 5 per month has been given to all workers in the two lowest grades. The Union had demanded that the lowest grade should be increased to Rs. 90‑125 and the increments should be increased by Rs. 5 per year. They also asked that all the scales should be so adjusted that the maximum of one grade should not be less than the minimum of the next higher grade, and for redesignation of the various grades. The Tribunal found that there was no case of the maximum of any grade being less than the minimum of the next higher grade, and that there was no case for redesignation. His award of Rs. 5 increase in the pay of the lowest two grades seems to us to be very inadequately supported by reasons. The following passage from the award contains the entire argument:‑‑ "Mr. Mozammel Huq on behalf of the Union argued that the last two grades of scale of unskilled and semi‑skilled workers were inequitable and that there should be one con solidated grade for two classes of workers so that unskilled workers might also get a lift after some experience to the grade of semi‑skilled workers. This suggestion seems to be quite fair. The minimum scale of pay, i.e, Rs. 70‑1‑85 also seems to be rather a bit low. In my opinion, it is the last two grades that require revision and I would recommend that the grade for the unskilled workers be raised to Rs. b0‑1‑95 and that of the semi‑skilled workers to Rs. 95‑1‑

115. I would also recommend that the unskilled workers, when fit, should tie promoted to the grade of the semi‑skilled workers. This is my Award." When asked to justify the increase in the salaries of the second lowest grade of workers, Mr. Suhrawardy suggested that this was necessary to accommodate the increase in the salary of the lowest grades. It is noticeable that no increase was suggested by the Tribunal for the grade next to the second lowest grade, and the principle of accommodation may not therefore be a valid one. For the increase in the second lowest grade, the Tribunal did not even have the excuse of an opinion of his own for making it. We consider that the excuse given for varying the bottom grade is no reason in law whatsoever. There is nothing to shoe that the salaries paid by the Mills in the lowest grades are in adequate compensation, bearing in mind the market rates for labour of that kind, in relation to the work which is required, or that equivalent workers in other Companies or establishments are being paid at a higher rate. The Tribunal has merely given a bounty out of the goodness of his heart, and in doing so has not cared even to consider how deeply he was dipping into the pocket of the employer. A mere idea trial the large body of workers involved were getting salaries which seemed to be "rather a bit low" is no, ground at all for disturbing the wage structure of this large industrial unit. This grant by the Tribunal‑ cannot be upheld and we accordingly allow the appeal of the Mills on this point and set aside the award under this head. Next, we proceed to consider the award under Demand No.

25. It relates to three fitters, named Lai Muddin, Abdus Samad and Abdus Sobhan. A Mechanical Engineer in the Mills Mr. Cecil M. Young, Company's witness No. 5, has given the full details regarding these three persons. They were previously working in the Damodar Valley Project in India where Mr. Young was also employed, and along with some 17 or 19 other workers, they came with him in a body to take work in the Karnaphully Paper Mills. These persons were appointed on daily wages, as temporary workers, for a particular project, namely, the erection of the Soda Recovery Boiler, which was completed in the middle of 1954 and had been retained thereafter, but only as temporary workers who could be discharged without notice. Mr. Young said they were given an assurance that they would be given higher salaries at Karnaphully than that they had been getting at Damodar, but he denied that they had been brought upon an assurance of being made permanent. ( In November 1955, there was a general grading of posts in a systematic fashion to the Mills, which affected these men, who were however still continued as daily‑paid temporary workers. About two years later notices were sent to them to say that it had been found that they had been "wrongly graded" and they were offered posts of fitters in the grade Rs. 110‑6‑200, with an initial advantage of six year's increments, with effect from the 1st April 1957. They were given the option either of accepting this offer nor if they declined it, of a month's pay in lieu of notice. They accepted the offer. At that time, Lai Muddin and Abdus Sobhan were drawing Rs. 8 per day while Abdus Samad was drawing Rs. 10 per day. All three of them were brought into permanent service as fitters in the same grade of salary, at the same stage, viz Rs. 164 per month. This action was taken by the Chief Engineer, in respect of these three and 9 other workers who in his opinion were "all outside their correct grade and in most cases are not as good workers as our other workers who are correctly graded". It has been fully explained upon the record, and clearly represents the absorption of temporary daily‑paid staff into permanent posts in the grade which was thought by the Management to be suitable for them, considering their quality as workers. There was no compulsion in the matter except such as derives from the necessity of livelihood. The men who were on temporary wages were allowed what would seem in the circumstances to have been a somewhat exceptional concession, namely, that although they were daily‑paid workers, perhaps on account of their having been in service of the Mills for over five years, they were being allowed a month's wages in lieu of notice. They all stayed in the Mills of their own accord, but when some seven months later, the demands were raised by the Union, their cases were also included. The Tribunal considered that the pay of these three persons had been unjustly reduced. He has proceeded on the basis that the Management have been following the principle, in the regarding of posts, that employees were being allowed to retain the pay they were drawing even if it was in excess of that which they would draw in the newly sanctioned grade. Now, it is clear that the three men here in question were dealt with along with some 9 others, not in the general regarding, but at a later date and in a special manner, which involved their being absorbed as permanent members of the staff, by an act of judgment on the part of the. Management as to the place to which the quality of their work entitled them. Being adjudged suitable for absorp tion in the permanent grade of fitters, at Rs. 110‑200, they were offered appointments on a stated salary, as permanent workers and they accepted those salaries. The case cannot be judged on the basis of the somewhat exaggerated beliefs expressed by the three workers themselves regarding the terms they were to enjoy at Karnaphully. There is nothing to show that the salaries which they have been getting at Karnaphully have been less than that they were being paid at the Damodar Valley Project. Nor is the view of the Tribunal correct that because they had been working for seven years on a daily wage basis, they were treated as if they were already permanent workers, when the new posts were offered to them in 1957. By awarding to each of these three persons salary equivalent to that which he was earning on a daily wage basis multiplied by 30 to make it a month's wages, the Tribunal has gravely interfered with the structure of the Department in which these men are working and into which they were absorbed in a rational manner on equal terms as for permanent employees, and with their own consent. We consider that the award on this point cannot be allowed to stand and we accordingly accept the appeal of the Mills on this point, and set the award aside: It remains to consider the orders of re‑instatement made by the Tribunal under Demad No.

2. As has been stated already Demand 2‑M to 2‑Y related to persons whose cases were not included in the charter of demands, and Mr. Suhrawardy agreed that these cases may be dealt with on the basis that the Tribunal had no jurisdiction to deal with them. Accordingly, the award of the Tribunal under Demand 2‑M to 2‑Y is hereby set aside. We proceed to consider the cases of the employees whose re‑instatement has been ordered by the Tribunal in the order of the dates of their discharge. The earliest date is 26th November 1955 applicable to Maqbul Ahmad whose case is dealt under Demand No 2‑E. The evidence shows that Maqbul Ahmad's service record was not a good one. He had been charged with misconduct and for fighting and quarrelling with other worker and further that he was finally discharged on the complaint of two fellow‑workers with whom he had a quarrel. This was admitted by him, and there is a contemporary petition on the record by him praying to be excused. The Tribunal thought that because there has been no written charge‑sheet produced in the case, Maqbul Ahmad should be reinstated. We consider that his case falls under the principle which we have today enunciated in our judgment in the case of the British Exchange Banks (C. A. No. 35‑D of 1959), namely, that unless the discharge be proximately connected with the main subject‑matter of the dispute either by direct nexus, or at the very least by proximity of time, it will not result in a "non‑employment" so as to constitute an industrial dispute. The discharge of Maqbul Ahmad appears to us in the circumstances to be clearly not a case of non -employment qua the dispute which arose in the present case in November 1957, that is two years after his discharge. The grievances which led to the reference were in the main as to important matters such as salaries, bonus, dearness allowance, provident fund, etc. It was argued that a major demand was recognition of the Union, and reliance was placed on the suggestion that Maqbul Ahmad was victimised for Union activity. The cause of his dismissal appears plainly to be his own misbehaviour Moreover, the Tribunal rejected the claim for recognition of the Union, as not being an "industrial dispute," and therefore the nexus sought to be established clearly fails. We therefore set aside the award of the Tribunal in favour of Maqbul Ahmad. The next case in point of time is that of one M. A. Rahman, who was discharged on the 2nd March 1956 after an enquiry, but with a month's salary in lieu of notice. The Tribunal received certain evidence regarding the enquiry, and came to the conclusion that it was not proper or regular. As to the action of the Management in‑discharging M. A. Rahman with a month's pay in lieu of notice, the Tribunal remarked that this could not be substituted for a punishment, which was what the Management had done. We consider that the principle upon which the Tribunal has acted is clearly not available in a case of private employment. We are aware that in certain cases affecting public servants, who enjoy exceptional protection under constitutional provisions, Court have in a number of cases acted on the principle enunciated by the Tribunal. But in the case of private employ ment, the ordinary rule of master and servant must be sustained namely, that without cause assigned the master may dispense with the services of the servant with notice or on payment of salary in lieu of notice. The servant may equally exercise the power of relinquishing his appointment on similar terms. These are mutual and reciprocal promises, and there is no principle available in the relevant law which could operate to minimise the effect of the counterpart promises. It may be that the enquiry which was conducted in the case of M. A. Rahman had left it open to question whether he was guilty upon the charge preferred, but that would not in any way detract from the power vested in the Master to dispense with his services, upon notice or even in M. A. Rahman to leave the service upon notice. The result of the enquiry might leave the employer with the feeling that although the servant was not proved to be guilty, yet there were unsatisfactory features about his behaviour which rendered it desirable that he should be discharged. Equally, at the close of the enquiry M. A. Rahman may have felt that he could not continue in the service of a master who placed him under enquiry without due consideration and might have exercised his right under the contract to bring the service to an end. The principle that where punishment is not found possible in the case of an employee who has been placed under a charge his discharge upon notice is also barred, cannot be accepted on any ground in relation to private employ ment. The award of the Tribunal directing the reinstatement of M. A. Rahman is therefore set aside. This principle also applies in the case of one Mansur Ali under Demand No. 2‑L. This name according to the evidence was insolent to the Manager of the Mills, and in consequence he was placed under suspension for four days and thereafter he was given a month's pay in lieu of notice and discharged on the 9th October 1957. The Tribunal has expressed the opinion that the discharge was in fact by way of punishment, and therefore, there should have been a charge‑sheet and a proper enquiry. For the reasons we have given in the case of M.A. Rahman, this conclusion is wholly unsustainable. Mansur Ali was properly discharged and had no right to reinstatement, and therefore the award of the Tribunal directing his reinstatement is hereby set aside. Coming back to the chronological order, the case of Giyasud din Haider who was discharged on the 8th March 1956, which is dealt with under Demand No. 2‑D, is next for consideration. There is proof on the record that this man had gone on leave from the Mills when a notice was issued by the Deputy Com missioner asking him to show cause why he should not be externed from that area, where there had been serious disturbances. He had taken 15 days leave in the first instance, and had asked for 15 days extension, and when he returned, according to his evidence, he was told that he had been discharged. He denied that he had any knowledge of the externment order. On the other hand, the case for the Mills was that Giyasuddin Haider had been dismissed for being absent without leave. Evidence to that effect was led, and it seems to us that the ground is one which must be allowed validity in relation to employment of this kind. But the major ground on which we consider that this case is not one in which reinstatement could be ordered is that the discharge is not proximately connected either by subject‑matter, or in point of time which the charter of demands raised a year and 8 months later by the workers. Consequently, the fact of Giyasuddin Haider not being in occupation of the post which he once held with the Mills is not capable of being treated as a case of "non‑employment" so as to bring it within the definition of an industrial dispute. The next case in point of time is that of Shamsul Haq under Demand No. 2‑C. who was dismissed on the 17th July 1957, some four months before the charter of demands was presented. There would appear to be some connection between this discharge, and the charter, for it is said that the offence of Shamsul Haq was that he was instigating his co‑workers not to work. He was placed under charge on this ground, and an enquiry was held at which evidence was recorded. The ground given by the Tribunal for reversing the employer's action is as follows :‑ "Having regard to the fact that the witnesses examined at the enquiry were not all independent witnesses and with some of them Shamsul Haq had enmity and in view of some irregularity at the enquiry I am inclined to hold that the discharge of Shamsul Haq cannot be justified. I therefore recommend his reinstatement." The Tribunal however stated that he had "carefully gone through the entire evidence" and had found that there was "some allegation of incitement by Shamsul Haq". He did not state in what respect the enquiry was irregular. In taking the view he did, the Tribunal has acted as if he were sitting in appeal from the decision in the enquiry. That was not his true function. His own observations indicate clearly that there was evidence on which the man could reasonably be found guilty. The reasons advanced for upsetting that result are superficial, They do not amount to saying that Shamsul Haq was denied the substance of a fair enquiry. We consider that no case was made out for a, forcing back upon the employer a man who had been duly'' discharged after enquiry. The Tribunal was aware that Shamsul" Haq had received a previous warning‑and that he did not have a clean record of service. This was not a case in which a reinstatement could properly be ordered, and we therefore allow the appeal of the Mills on this point, and set aside the order of reinstatement. Mr. Fazlur Rahman next raised the case of Abdul Mannan under Demand No. 2‑H, who was dismissed on the 25th June, 1957. It appears however that his case for reinstatement was expressly rejected by the Tribunal, and that the appellant Mills have been misled by a rider added to his decision by the Tribunal recommending "to the Management to re‑employ him on his assurance of future good conduct". No interference with this recommendation is necessary. The next case of reinstatement is that of Muhammad Yusuf under Demand No. 2‑J. He was discharged on the 1st August 1957, on the ground of long absence without permission. This was proved by the Management, and it was also stated, that since Muhammad Yusuf was only a temporary worker, there was no need to place him under charge or take any other formal step. Muhammad Yusuf on the other hand claimed to be a permanent worker, and declared that he had in his possession an order of appointment showing that he was permanent. He did not however produce this document although he produced the order of discharge which he had received. At the same time as he was dismissed, another workman Chunnu Mian was also dismissed for the same reason, namely, that he was absenting himself without leave. The Management had suggested. that Muhammad Yusuf was working temporarily in Place of Chunnu Mian, and the Tribunal has come to the conclusion that because both of them were dismissed on the same day, that proved that Muhammad Yusuf could not have been working in place of Chunnu Mian. The conclusion does not necessarily follow. The Tribunal has also found that the Management had failed to produce evidence to show that Muhammad Yusuf was a temporary worker, although a witness had admitted that registers were maintained on a regional basis of all workers. In our opinion, where the establishment is so large, a question such as this, namely, whether, a low‑paid worker from among a very large number of such workers, was permanent or temporary should be treated as a matter of special knowledge possessed by the worker himself and in this case Muhammad Yusuf had clearly admitted that he had in his possession his order of appointment, which however he did not produce. We do not think that in the circumstances, the burden could have been thought to have been shifted to the employer to produce out of their multifarious records the single entry relating to Muhammad Yusuf to show the character of his appointment. As a temporary worker, the manner of his discharge and the reason for it are both in order. The grounds upon which the Tribunal has ordered the reinstatement of Muhammad Yusuf do not appear to us to possess substance, and we set aside that order. The last case of this type is that of the discharge of two employees Mofizul Islam and Wakil Ahmad under Demand No. 2‑K. These persons were discharged on the 15th September 1957, but it is perfectly clear on the record that they were discharged out of the service of the Co‑operative Society attached to the Mills. They had previously been employed in the Mills, but when they became surplus to requirements in the Mills, they were transferred to the Co‑operative Society of the Mills, which is a separate entity and consequently a different employer. The order of discharge issued was from the Secretary of the Co operative Society, and it appears that they appealed to the Chairman of the Co‑operative Society against their discharge: We find it impossible to see how the Tribunal could have directed the reinstatement of these persons by the Mills, since they did not occupy any post in the Mills at the time of their discharge. This award must therefore be set aside. The result is a follows:‑ (1) Under Demand No. 19 the award of the Tribunal is modified so that the Mills are required to provide that all workers in the forest, whether they be engaged for work in the forest or not shall be granted a supplementary pay of Rs. 20 per month in excess of the salary which they would have been getting had they been working in equivalent grades or positions at the Mills. (2) The award of the Tribunal adding Rs. 5 per month to the salaries of all workers in the two lowest grades of the. Mills employment is set aside. (3) The award of the Tribunal fixing higher salaries for three workers, Lal Muddin, Abdus Samad and Abdus Sobhan is set aside. (4) The award of the Tribunal under Demands 2‑M to 2‑Y is set aside, and similarly, the awards in relation to Shamsul Haq, under Demand No. 2‑C, Giyasuddin Haider, under Demand No. 2‑D, Maqbul Ahmad, under Demand No. 2‑E, M. A. Rahman, under Demand No. 2‑F, Muhammad Yusuf under Demand No. 2‑J, Mofizul Islam and Wakil Ahmad under Demand No. 2‑K, and Mansur Ali, under Demand, No. 2‑L are set aside in each case. We leave the parties to bear their own costs: A. H. Order accordingly.