1982 PLP 544 (PLC(CS))

(iii) The learned Labour Court was not competent to go behind the report of the enquiry officer and assess the evidence led before the enquiry officer as the provisions of subsection (5) of sec tion 25‑A, I. R. O., conferring such powers on the Labour Courts, are not available to the Labour Court while adjudicating an industrial dispute‑ (iv) The charges against the 3 chowkidars were duly established against them in a domestic enquiry.

3. Mr. Ali Amjad, the learned counsel for the respondent Union on the other hand strongly supported the impugned award of the learned Labour Court. In respect of the first and the second contentions raised by Mr. S. Qamaruddin Hassan, Mr. Ali Amjad submitted that even the repealed Standing Order 18, which provided for the raising of an indivi dual grievance, such a grievance could be raised as an industrial dispute. According to the learned counsel, after the enactment of section 25‑A, I. R. O., an individual grievance could be raised both under section 25‑A and also by means of an industrial dispute. In support of his conten tion, he relied upon the decisions reported in P L D 1975 Kar. 811 and 1976 P L C

38. Mr. Ali Amjad also referred to the amendment in the definition of "industrial dispute" made by Act XVI of 1975, which has barred the raising of an industrial dispute in respect of the enforce ment of any right guaranteed or secured to a workman under any law, award or settlement, and submitted that since it has been held that chowkidars are not workmen for the purposes of the Standing Orders and are thus not entitled to file grievance petitions against the termination of their services under clause (3) of Standing Order 12, no question of enforcement of any statutory right of the 3 chowkidars arose in the instant case and hence the industrial dispute in respect of the termination of their employment raised by the respondent Union is valid. In regard to the third contention of Mr. Qamaruddin, based upon the agreement between the appellant company and the C. B. A., Mr. Ali Amjad sub mitted that the settlement did not preclude the respondent Union from raising an industrial dispute unconnected with the matters covered by that settlement. In support of his contention, he relied upon a decision from the Indian jurisdiction reported as Jeypore Sugar Mills v. Their Work men ((1955) 2 L L J 744). In regard to the last contention raised by Mr. S. Qamaruddin Hassan, Mr. Ali Amjad took me through the evidence recorded by the enquiry officer and submitted that the sole witness of the incident examined by the company against the 3 chowkidars was Essa Muhammad, whose evidence did not establish the guilt of any one of the chowkidars and even if full credence were to be given to his evidence, he implicates only chowkidar Zari Gul and not the other 2 chowkidars.

4. As the first 2 contentions raised by Mr. Qamaruddin are closely interrelated, I will proceed to examine them together. Section 25‑A was added to the I. R. O. by Ordinance IX of 1972. By the same Ordinance, which was promulgated on 13th April, 1972 Standing Order 18 provide in for redress of grievance of individual workman was repealed. It is per tinent to note that the Standing Order specifically contemplated that an individual grievance of a workman could be raised or taken cognizance of as an industrial dispute and if any particular grievance was so raised, then the workman was not entitled to file a complaint in respect of it before the Labour Court. Section 25‑A, I. R. O. does not specifically contemplate the raising of an industrial dispute in respect of an individual grievance of a workman, but on the other hand, an individual grievance under the said section can only be raised by a workman as defin ed in clause (xxviii) of section 2 I.R.O. That definition however, exclude workmen whose services have been terminated or who are no longer in employment, and it is only for the purposes of proceedings relating to an industrial dispute that persons who have been dismissed, discharged. retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, A retrenchment, lay off or removal has led to that dispute, are deemed to b workers. As such persons whose services have been terminated or who are no longer in employment would appear to be precluded from the purview of section 25‑A, I, R. O., itself. However, as explained by the Tribunal in the case of Johnson & Johnson v. Zubair Ahmad (1980 P L C 822) person whose services have been terminated, if they were workmen as defined in the Sind Industrial and Commercial Employment (Standing Orders) Ordi nance, 1968, could file individual grievance petitions under the provision of clause (3) of Standing Order 12 read with section i 25‑A, I R. O., if the 3 chowkidars had come within the purview of the definition of "workman" as contained in the Standing Orders, no industrial dispute could have been raised in respect of their dismissal from service as in that case they would have had statutory right to raise an individual grievance under clause (3) of Standing Order 12, and in consequence of the amendment made in the definition of industrial dispute as contained in the I. R. O., and clause (a) of subsection (12) of section 22, I. R. O., neither the enforcement of any right guaranteed or secured to a workman under the law can come within the purview of an industrial dispute, nor is the collective bargaining agent empowered to undertake bargaining in regard to matters which relate to the enforcement of any right guaranteed or secured to any workman under any law, other than the I. R. O. or any award or settlement. It is thus clear that on the one hand, no right under any law, excluding the

1. R. O., or an award or settlement was guaranteed or secured to the 3 chowkidars, which could be legally enforced by them and on the other hand, there is no bar on the collective bargaining agent raising an industrial dispute in respect of the termination of service of the 3 chowkidars. In fact as already pointed out the very definition of workman as contained in the I. R. O. contemp lates the raising of an industrial dispute in respect of a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment, I am supported in my above view by 2 decisions of the Karachi High Court, reported as (1) Employees' Union v. Mono Motors and another (P L D 1975 Kar. 811) and Messrs International Laboratories Employee's Union v. Sind Labour Appellate Tribunal (1976 P L C 38). In the case of Mono Motors a Division Bench of the Karachi High Court held that a dispute relating to establishment of Workers' Participation Fund under the Company's Profits (Workers Participation) Act, 1968, was an industrial dispute and that the workers' Union was entitled to seek remedy either by way of as adjudication and/or enforcement by Labour Court. The aforesaid decision, however, was given before the amendments effected in the definition of industrial dispute in the I. R. O., section 22(12)(a) and section 34, I. R. O. The decision in the case of International Labora tories, however, is not only more to the point, but was in respect of a dismissal of a workman on the charge of misconduct. It was held by a Division Bench of the Karachi High Court in that case that "2 remedies are provided by the Statute for re‑instatement, one is by way of individual grievance under subsection (6) of section 25‑A, and the other by way of industrial dispute under section 34."

5. It next falls to be examined whether the proceedings before the learned Labour Court were maintainable and an industrial dispute could be raised in view of the settlement arrived at between the appellant com pany and the respondent Union on 17th January, 1980. That settlement covered both the charter of demands by the resp3ndent Union and the demands list of the appellant company and was in the nature of package deal as is clear from the short recital of the case contained in the settle ment itself, which reads as follows:‑ "Whereas the Union submitted a charter of demands containing 22 points to the company, vide their letter No. BEU/005/79, dated 1st July, 1979. Whereas the company also served a demand list containing 12 points on the Union vide company's letter dated 1st July, 1979. The copies of .the Union's letter dated 1st July, 1979 alongwith a copy of their charter of demands and company's letter dated 1st July, 1979 covering their charter of demands are annexed hereto and marked as given hereunder:‑ Union's letter dated 1st July, 1979 Annexure 'A' Union's chatter of demands . .. Annexure B‑1 to B‑5 Company's letter dated 1st July, 1979 . .. Annexure 'C' Company's charter of demands ... Annexures D‑1 to D‑2 Whereas bilateral discussions and negotiations took place, as provid ed in the section 26 of the Industrial Relations Ordinance, 1969, on the aforesaid charter of demands served by the Union and the com pany on each other. Whereas both the parties appreciated each other's position and taking into consideration the rise in Cost Living accrued during the last two years and all the demands and claim of the Union con tained in their charter of demands referred to above and those taken up during the course of collective bargaining and reached an amicable agreement more specifically described as hereunder." A bar against the raising of any industrial dispute by either party during the period of the settlement is contained in clause (b) under the sub heading of "purpose and scope of agreement". The said clause reads as follows:‑ (b) It is agreed that agreement is in nature of a package Deal and is in full and final settlement of all demands contained in the Union's as well as company's charter of demands annexed hereto. It is further agreed that this agreement will remain in force and winding on both the parties for a period of two years i. e. from 1st July, 1979 to 30th June, 1981 and that for the duration of the agreement the Union as well as company will not re‑advance any demands which were included in their respective charter of demands and will also not raise any fresh demands whatsoever."

6. A plain reading of the above clause makes it clear that not only the re‑advance of any demands contained in the charter of demands by the C. B. A., or in the demands list of the appellant company is barred during the period that the settlement is in force, but further, during the said period, neither the C. B. A. nor the company would be entitled to raise any fresh demands whatsoever.

7. Mr. Ali Amjad sought .to argue that despite the apparent binding language implied in the aforesaid clause in the settlement the intention of the parties was that the bar should be applicable only to matters covered by the demands of the respective parties and the bar cannot be deemed to apply to matters which were not even within the contemplation of either parties, and at any rate tie bar cannot be made to apply to an unlawful act on the part of the appellant company. He ‑sought support for his contention from the decision of the Labour Appellate Tribunal of Calcutta reported as Jeypore Sugar Company Ltd. and Their Workmen ((1955) 2 L L J 744) The facts of that case were that a settlement was arrived at between the company and its workers in regard to certain items of disputes. During the period that the settlement was in force, the workers went on strike in protest against an assault on a Union official by an officer of the company. There upon the workers who participated in the strike were dismissed on the ground that they had not only violated the terms of the settlement but also the Standing Orders providing for dismissal if workers went on strike in contravention of the industrial law for the time being in force. It was held by the Labour Appellate Tribunal Calcutta that "as it could never be in the contemplation between the parties while reaching the settlement that a dispute would arise over an assault of a workman by an officer of the company during the next crushing season for which a strike would probably become necessary the strike was not in contravention of the law and hence the dismissal of the workmen was not justified. It was further held that a dispute regarding an alleged assault of a workman by officer of the company cannot be considered an industrial dispute within the meaning of the Act. The provisions in the settlement upon which the company relied upon for holding that the strike was illegal and in contra vention of the law, was to the following effect:‑ "The Union given undertaking that there shall be no strike till the end of the next crushing season."

8. The said undertaking, however, was not in the operative part of the settlement. Further more, as found by the Tribunal, there was no dispute regarding such strike to be settled in the agreement nor it would appear that the undertaking was in consideration for any of the disputes settled. The facts of the instant case, however, are material different. Apart from the fact that an undertaking in clear and in unambiguous words had been given that no demand of any nature would be raised during the period that the settlement was in force and such undertaking was given both by the company as well as the respondent Union but as is clear from the undertaking there was a package deal and the under taking was given as a part of the package deal in consideration g of the settlement of the demands made by the Union and the demand list of the company. My learned predecessor, in the case of Employees' Union v. Messrs Johnson & Johnson (Pak.) Ltd. Karachi (1975 P L C 205) while com menting upon the sanctity attached to settlement and the effect of a bar contained in the settlement to the raising of a demand, observed as follows:‑ "A settlement arrived at between the parties must be given due weight to as to maintain industrial peace. Even the Ordinance has fixed a period of operation of a settlement for two years. The intention of the Legislature appears to be that when a settlement had been arrived at between the parties the terms of the settlement must remain binding on the parties for sufficiently long period, so that the management and the workers are able to work in amity and peace. I would hold that the Union could not raise a demand in respect of any matter involving financial implications during the pendency of the settlement dated 16th February, 1972." The above observations are based on numerous decisions of the superior Courts. I will refer to two such decisions. In the case of Adam Jute Mills v. Province of East Pakistan, a Division Bench of Dacca High Court, while repelling the contention that the Government has the power to cancel an award based on a settlement under the Industrial Disputes Act, 1947, observed as follows:‑ "Now an award based on a settlement is nonetheless an award by a Tribunal and the law gives greater sanctity to it and the parties to the award have to abide by it whether they like the terms of the award or not."

9. In the case of Siemens (Pak.) Employees' Union v. Messrs Siemens (Pak.) Engineering Company Ltd., Karachi (1966 P L C 274), Waheeduddin J., while considering a settlement arrived at by the workmen relinquishing all pending demands and providing for counting of lay off period for purposes of annual increment, but not shown to have retrospective effect, observed as follows:‑ "In law parties are bound by the terms of the agreement accepted by them and they are not entitled to claim any concession which has not been granted to them."

10. I am conscious of the fact that in the case of Messrs Attock Oil Co. Ltd. v. The Supreme Body of Oilfields League and Refinery Union, Rawalpindi (1969 P L C 869), a Division Bench of the defunct High Court of West Pakistan sitting at Lahore, while examining a settlement containing an undertaking given by the workmen not to raise or pursue, during the operation of the settlement, any demand involving financial commitments/expenditures, had taken the view that the above undertaking cannot be read indepen dent of the clause of the agreement which lays down that the terms of the agreement extend to all demands in dispute in existence upto the time of the agreement and/or pending before the Industrial Court and therefore, it was held that the contention that the Union by the agreement had closed the doors upon themselves of all these reme dies which were open to them under the law for any new dispute, which might crop up during the period the agreement subsisted, was with out force but that decision was based upon the facts of that particular case and was primarily influenced by the clause in the agreement restrict ing the application of the agreement to the disputes or demands in dispute. In the instant case, the bar in the settlement is couched in very wide terms and not only bars the re‑adjudication of any demands raised either by the C. B. A., or the company but also of any fresh demand, during the period that the settlement was to remain to force and this undertaking was specifically stated to be in the nature of a package deal Having voluntarily agreed to this package deal, the respondent Union cannot be allowed, during the period that the settlement is to remain in force from raising any demand, whatsoever, including the present demand. The settlement was to be in operation with effect from 1st July, 1979 for a period of 2 years. As such, the notice of raising of an industrial dispute given by the respondent Union on 16th June, 1980 the notice of strike given on 29th June, 1980 and the filing of the application under sec tion 32(1‑A), I. R. O., by the respondent Union on 14th September, 198 were well within the period during which the settlement was to remain in force. All these steps, therefore, are in violation of the settlement mutually arrived at between the parties. Since the raising of any demand during the said period was prohibited by the settlement itself, the industrial dispute cannot be deemed to have validly raised and could not: b agitated upon by the learned Labour Court. The application under sec tion 32(1‑A), I. R. O., of the respondent Union was therefore, liable to be dismissed on the ground alone and I would accordingly dismiss the same, set aside the impugned award of the learned Labour Court, and allow the appeal. As the period of operation of the settlement in question has expired, it will now be open to the respondent Union, if they so choose, to raise an industrial dispute in accordance with the law in respect of the matter of dismissal of the 3 chowkidars.