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Petitioner: KARACHI PIPE MILLS LTD. VS Respondent: SIND LABOUR APPELLATE TRIBUNAL AND 2 OTHERS
Court Name: Sindh High Court Judge(s): Nasir Aslam Zahid, Naimuddin Ahmed, Ali Madad Shah Title: KARACHI PIPE MILLS LTD. vs SIND LABOUR APPELLATE TRIBUNAL AND 2 OTHERS Case No.: Constitutional Petition No, 728 of 1980 Date of Judgment:1984-04-11 Reported As: 1984 PLC 1359 Result: Petition disposed of
JUDGMENT
JUDGMENT ' NAIMUDDIN, J.-The petitioners employ 400 workers who are engaged in manufacturing various types of pipes and poles in different sections/ departments of the petitioner's establishment. 2. According to the petitioners the workers engaged by the petitioners are required to work in shifts :{{TABLE TEXT}} "Ist Shift : From 7 a. m. To 3 p. m. With hour break total working hours 43 per week. 2nd Shift : 3 p. m. To 11 p. m. With bour break total working hours 45 per week. 3rd Shift From 11 p. m. To 7 a. m. With hour break total working hours 45 per week. General From 7.30 a. m. To 4 p. m. With z hour break total working Shift : hours 45 per week. Clerical From 8.30 a. m. To 4.30 p. m. With 2 hour break total work- Staff : ing hour 41 (1/2) per week. 3. The petitioners have stated in the petition that according to the practice in their establishment when workers are required to perform overtime work they are paid overtime wages at the rate of double of the basic, wages plus cost of Living Allowance plus 1 time Food Subsidy Allowance. This practice of payment of overtime in the aforesaid manner continued till 1977, without any grievance being made by the workers. However, on 31st January, 1978 Karachi Pipe Mills Employees Union, respondent No, 3 (hereinafter called the C. B A ) demanded the payment of overtime wages according to law at twice the ordinary rate of pay including the following allowances :- {{TABLE TEXT}} (a) House Rent Allowance, (b) Food Subsidy Allowance, (c) Heat Allowance, (d) Fume and Gas Allowance, (e) Cash Dealing Allowance, (1) Washing Allowance,
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(g) Chappel Allowance and (h) Coil Pit Allowance. {{TABLE TEXT}} 4. The petitioners informed the C. B. A. That they had been advised by the higher authorities to maintain the existing arrangement for computation of overtime and to make no change. They however, allowed payment of House Rent Allowance. The petitioners have explained their position with regard to various allowances in the petition. 5. However, on or about 14th March, 1979 the C. B. A. Filed an application, being Application No, 5 of 1979 in the Sind Labour Court, respondent No, 2, under section 34 of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance) for direction to the petitioners to pay overtime in terms of section 47 of the Factories Act, 1934, at the rate of twice the ordinary rate of pay including the House Rent, Food Subsidy, Heat, Fume and Gas, Cash Dealing, Washing Chappel and Coil Pit Allowances as, according to the C. B. A. It was a right guaranteed by law. 6. The petitioners resisted the application on various grounds. However, on 4th February, 1980 respondent No, 2 allowed the application and directed the petitioners to pay overtime on the basis of all remunerations including the allowances. 7. Aggrieved by the order, dated 4th February, 1980 the petitioners preferred an appeal to the Sind Labour Appellate Tribunal, respondent No, I, and also applied for stay of operation of the order of respondent No, 2. The appeal was first admitted but after hearing the parties, the same was dismissed on 6th April, 1980. 8. The petitioners have questioned the orders, dated 4th February, 1980 and 6th April, 1980 passed by respondents Nos, 1 and 2, respectively in this constitutional petition under Article 9 of the Provisional, Constitution Order, 1981. 9. In the petition the main question raised is that the application under section 34 of the Ordinance filed by respondent No, 3 was incompetent and not maintainable. While hearing the arguments on the question the Division Bench of this Court found it necessary to recommend for formation of larger Bench to consider the point in view of the conflict of the decisions in this Court on the point and of the decision of Lahore High Court and various Labour Appellate Tribunals. It was pointed out that an amendment made in section 22, subsection (12) clause (a) of the Ordinance whereby the following sentence has been added to clause (a) of subsection (12) of section 22 by Ordinance XVI of 1975, was not considered. "Other than matters which relate to the enforcement of any right guaranteed or secured to it or any workman by or under any law other than this Ordinance, or any award or settlement." ' Accordingly, this Full Bench has been constituted to decide the question raised. 10. We have heard Mr. Ali Ahmed Fazeel, learned counsel for the petitioners and Mr. Ali Amjad learned counsel for respondent No, 3 on the question involved. 11. It is submitted by Mr. Ali Ahmed Fazed that under section 34 of the Ordinance a Collective Bargaining Agent is not entitled to appeal for enforcement of any right guaranteed or secured to any workman by or under any law or any award or settlement for the time being in force and since the right was admittedly claimed under the provisions of the Factories Act, 1934, the same could not be enforced by the C. B. A. Under the aforesaid provisions. The argument of the learned counsel is that under section 34 of the Ordinance a Collective Bargaining Agent could maintain action only in respect of any right secured to it under the Ordinance or any award or settlement. In this connection he referred to the definition of 'Industrial Dispute' as given in section 2, clause (13) and also to the provisions of section 22, subsection (12), clause (a) and section 34 of the Ordinance. In support he has mainly relied on Single Bench Judgment of this Court in Sind Alkalis Ltd. v. Workers Union and another and a Single Bench decision of Lahore High Court in Allied Bank of Pakistan Ltd. And 2 others v. Labour Appellate Tribunal Lahore and 2 others and also referred to a decision of the Sind Labour Appellate Tribunal headed by Mr. Justice (Retd.) Inamullah Khan in Workers Union1 2
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v. Messrs Indus Chemicals & Alkalis Ltd. Karachi and a decision of Punjab Labour Appellate Tribunal in Crescent Jute Products Ltd. Jaranwala v. Workers Union . He has submitted that the decision of this Court in Chamber of Commerce and Industry, Karachi v. Presiding Officer, Sind Labour Court No, III, Karachi and another and the Division Bench decision in Rice Export Corporation of Pakistan Ltd. v. Sind Labour Appellate Tribunal and 2 others do not lay down correct law. He has also referred to several decisions of the Labour Appellate Tribunal namely : Messrs Suraj Ghee Industries Ltd. v. President Suraj Ghee Industries Workers Union Sheikhupura and another , Messrs Hashmi Can Co. Ltd. v. Employees Union , Continental Furnishing Co. Mazdoor Union v. Messrs Continental Furnishing Co. Ltd. , Messrs Arag Industries Ltd. v. Habib Textile Mills Labour Union , wherein the scope of section 34 of the Ordidance has been considered. 12. On the other hand, Mr. Ali Amjad has submitted that in section 34 of the Ordinance, the pronoun 'it' used not only refers to a Collective Bargaining Agent but also to a workman and, therefore, the C. B. A. Could apply for enforcement of the right secured to the workers under the Factories Act, 1934. He has submitted that Single Bench decision of this Court in Sind Alkalies (supra) does not lay down correct law as a Collective Bargaining Agent as such has no right under the Ordinance and reference to sections 3(c), (d), (14), (17), (18), (20), (21), (22), (23), (23-A), 24(2), (26), (30) & (24-A) in the judgment is based on misconception for the said provisions do not confer on a Collective Bargaining Agent any rights. 13. In order to appreciate the respective contentions of the learned counsel it may be useful that we may first refer to certain provisions of the Ordinance. The first provision in this connection to be immediately noticed is section 2 (xiii) which defines 'Industrial dispute' as "any dispute or difference between employers and employers and workmen or between workmen and workmen, which is concerned with the employment or non-employment or the terms of employment or the conditions of work of any person ; and is not in respect of the enforcement of any right guaranteed or secured to him by or under any law, other than this Ordinance, or any award or settlement for the time being in terms". The next provisions to be considered are those of sections 22(12), (a) and (b). These read :- "(12) The Collective Bargaining Agent in relation to an establishment of group of establishments shall be entitled to :- (a) undertake collective bargaining with the employer or employers on matters connected with employment, non-employment, the terms of employment or the conditions of work ; other than matters which relate to the enforcement of any right guaranteed or secured to it or any workman by or under any law, other than this Ordinance, or any award or settlement ; (b) represent all or any of the workmen in any proceedings." ' The last provision which requires examination is section 34 of the Ordinance itself, which is as follows :- "34. Application to Labour Court.-Any Collective Bargaining agent or any employer may apply to the Labour Court for the enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement". It is argued by Mr. Ali Ajmad that the pronoun 'it' used in section 34 of the Ordinance should be read as referring not only to a Collective Bargaining Agent but also to workmen. If we do so we will be reading something in the text which is not there and wl1ich was deleted from the section by Ordinance XXIX of 1973 enforced on 2nd April, 1973. 14. It may be mentioned here that before amendment of this section by section 22 of Ordinance XXIX of 1973, after the word "employer" the words "or workman" were used in this section which were omitted by the said Ordinance. Before the amendment of section 34 of the Ordinance a workman could also maintain an application in respect of any right guaranteed or secured to him by or under any law or any award or settlement. It may also be mentioned that the aforesaid Ordinance3 4 5 6 7 8 9 10
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was promulgated on 9th February, 1973 but 10 months earlier section 25-A was added to section 25 of the Ordinance by the Industrial Relations Ordinance by Labour Laws (Amendment) Ordinance, 1972 (Ordinance IX of 1972). Under this provision a workman has been given a right to seek redress of his grievance in respect of any right guaranteed or secured to him by or under any law or by any award or settlement in the manner provided therein. The object of omitting the word 'workman' from the provisions of section 34 of the Ordinance seems to be that this right has already been provided to a workman under section 25-A of the Ordinance. 15. The Supreme Court of Pakistan in reference by the President of Pakistan under the Defunct- Constitution of Pakistan, 1956, PLD 1957 SC 219 stated general principles of interpretation, one of them is the first object of the Court is to discover the intention of the author and such intention is to be gathered from the words used in the statute or the document itself. In S. A. Haroon and others v. Collector of Customs the Supreme Court observed that all rules of interpretation have been advised as aids to the discovery of the legislative intent behind' an enactment. Where the words are plain and unambiguous that intent can be best judged by giving full effect to the ordinary grammatical' meaning of those words. 15-A. Examined in the light of the above principle the intention of the Legislature after the amendment of section 34 of the Ordinance XXIX of 1973, appears to be that under section 34 of the Ordinance only the Collective Bargaining Agent or the employer can apply to the Labour Court for enforcement of any right guaranteed or secured to it or him by or under any award or settlement and not to workman., It had been argued that a Collective Bargaining Agent has no right guaranteed or secured to it under any law including the Ordinance and therefore, by necessary implication the prono un 'it' used in section 34 of the Ordinance refers to workman who has been grantad various rights under various laws including the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, Workmen's Compensation Act, 1923 and Factories Act, 1934, Payment of Wages Act, 1936, etc. And for this very reason, Mr. Ali Amjad submitted that the judgment of the Single Bench of this Court in Sind Alkalis Ltd. (supra) should not ' be followed for that judgment proceeds on the assumption that the provisions mentioned therein namely, 3(c), (d), 14, 17, 18, 20, 21, 22, 23, (a) and (b), 24(2), 26, 30, 34(a) and 37 of the Ordinance secured or guaranteed rights to the Collective Bargaining Agent while in fact they do not guarantee or secure any rights to it. The argument at first seems to be attractive for it the Collective Bargaining Agent has no right under the Industrial Relations Ordinance, or under any law or any award or settlement then by necessary implications it should have reference to the rights of workmen whose cause is generally spoused by the Collective Bargaining Agent under the Ordinance as each word in a provision of law should be given some meaning and should not be considered redundant. But on perusal of relevant provisions we do find that the Ordinance does confer, or secure certain rights to the Collective Bargaining Agent, for example, under section 23 the Collective Bargaining Agent is entitled to ask the employers of the workmen who are members of a Trade Union to deduct from the wages of the workmen such amounts towards their subscription to the funds of the Trade Union as may be specified with the approval of each individual workman named in the demand statement furnished by the Trade Union, Similarly, under section 23-B(2) (a) a Collective Bargaining Agent of a factory which employ fifty persons or more is entitled to nominate a worker's representative who is a workman for the purpose of participating in the management of the factory. Likewise under section 22(12) (d) of the Ordinance the Collective Bargaining Agent in relation to an establishment or group of establishments is entitled to nominate representative of workmen on the Board of Trustees of any welfare institutions or Provident Funds, and of the Workers' Participation Fund established under the Companies Profits (Workers Participation) Act, 1968 (XII of11
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1968). The above examples are not exhaustive but they have been given to show that under the Ordinance itself the Collective Bargaining Agent has certain rights. It may be correct that some of the sections of the Ordinance referred to in the judgment of Sind Alkalis Ltd. (supra) do not guarantee or secure any rights to the Collective Bargaining Agent, but others do and we have already mentioned three of them hereinabove. Therefore, even by necessary implications it cannot be said that the word 'it' refers to workman. Considering grammatically also, the stand could not be supported. 17. Although term or word 'right' used in section 34 of the Ordinance has not been defined in the Ordinance but has been the subject of debate before various superior Courts of the country exercising writ jurisdiction, or otherwise, we may here refer to Mian Irshad Ali V. Government of Pakistan , wherein it was observed that :- "The trend of authority is that the word 'right' for the enforcement whereof the Court will come to the rescue of the aggrieved person, is not in the strict juristic sense. In Mian Fazal Din v. Lahore Improvement Trust, Lahore and an- ' other at page 231 of the report the learned Judges of the Supreme Court observed :- "It is clear from the above that the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise." ' This word has also been considered by Ballentine who in his Law Dictionary, 3rd Edn., page 1118, has stated the meaning of the word a Union :- "That too which a person has a just and valid claim, whether it be land, a thing, for the privilege of doing something, or saying something, such as the right of free speech, property, interest, power, prerogative, immunity and privilege and had relied on (Shaw v. Proffitt, 57 or 192). ' He has also stated that in broad sense this word includes remedy. He has further referred to Nickell v. Rosenfield , wherein it is observed :- "When we speak of a person having a right, we must unnecessarily refer to a civil right as distinguished from elemental idea of right absolute. We must have in mind a right given and protected by law, and a person's enjoyment thereof a regulated entirely by the law which creates it. If we were to consider these rights an absolute, nothing but chaos could result". ' Qadeeruddin Ahmad, J. (as he then was) had the occasion to discuss the meaning of the word 'right' in Piran Nitta v. Noor Muhammad and this is what he observed at page 624 of the report. "The last contention emphasises the difference between a right or privilege on the one hand a procedure on the other hand. The demarcation or their scopes is not easy because the meaning of the word "right" has as yet not been stated with precision." .......................... There is no doubt that in suitable circumstances a procedure. 66 may also be a right. Thus, the right of appeal is a procedure as well as a legal right. Whether it is more of a procedure or more of a legal right depends on which of the two aspects is more importan in a given situation ; therefore, the contention of learned counsel that section 18 of the Karachi Small Causes Courts Act, 1929, did not confer a right because it simply provided a shorter procedure is not a complete argument for excluding the application of clauses (c) and (e) unless counsel could further show that it was not a remedy or a privilege or a legal right. A 'legal right' is that right which is recognisable and enforceable at law". 18. If we examine the provisions of sections 22 (12), 23 and other provisions of the Ordinance in the light of the above meanings, we have no doubt that the above provisions do confer certain rights on the Collective Bargaining Agents and therefore, the pronoun 'it' used in section 34 of the Ordinance refers to the rights of the Collective Bargaining Agent' and not to the right of the12 13 14 15
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workmen or worker. So far as rights of workmen or workers under any law are concerned, remedy for seeking redress against violation thereof as already noticed has been provided in section 25-A of the Ordinance which also given a right to Collective Bargaining Agent to take his grievance to the Labour Court deeming it industrial dispute but this right could be exercised subject to the conditions or limitations provided in section 25-A(1). We may here for the sake of ready reference quote the provisions of section 25-A which read as follows :- "25-A. Redress of individual grievances.-"Worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his Shop Steward or Collective Bargaining Agent, within three months of the day on which cause of such grievance arises. (2) Where a worker himself brings his grievance to the notice of the employer, the employer shall, within fifteen days of the grievance being brought to his notice, communicate his decision in writing to the worker. (3) Where a worker brings his grievance to the notice of his employer through the Shop Steward or Collective Bargaining Agent the employer shall, within seven days of grievance being brought to his notice, communicate to his decision in writing to the Shop Steward or, as the case may be, the Collective Bargaining Agent." (4) If the employer fails to communicate a decision within the period specified in subsection (2) or, as the case may be, subsection (3), or if the worker is dissatisfied with such decision, the worker or Shop Steward may take the matter to his Collective Bargaining Agent or the Labour Court, or, as the case may be, the Collective Bargaining Agent may take the matter to the Labour Court and where the matter is taken to the Labour Court it shall give a decision within seven days from the date of the matter being brought before it as if such matter were in an industrial dispute : Provided that a worker who desires to so take the matter to the Labour Court shall do so within a period of two months from the date of the communication of the employer, as the case may be, from the expiry of the period mentioned in subsection (2) or subsection (3), as the case may be. (5) In adjudicating and determining a grievance under subsection (4), the Labour Court shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case. (8) If a decision under subsection (4) or an order under subsection (5) given by the Labour Court or a decision of the Tribunal in an appeal against such a decision or order is not given effect to or complied with within a week or within the period specified in such order or decision, the defaulter shall be punishable with imprisonment for a term which may extend to one year, or with/ fine Which may extend to one thousand rupees. (9) No person shall be prosecuted under subsection (8) except on a complaint in writing : - (a) by the workman if the order or decision in his favour is not implemented within the period specified therein, or (b) by the Labour Court or Tribunal, if an order or decision thereof is not complied with. (10) For the purposes of this section, workers having common grievance arising out of a common cause of action may make a joint application to the Labour Court. 19. We are further fortified in our view by the provision of section 22(12), clause (a) of the Ordinance which entitles the Collective Bargainin Agent in relation to an establishment or group of establishments to undertake collective bargaining with the employer or employers on matters connected with employment/non-employment, the terms of employment of the conditions of work ; but this right excludes from its purview matter which relate to the enforcement of any right guaranteed or secured to it or to any workman by or under any law other than the Ordinance or any award or settlement. From this provision it is clear that the Collective Bargaining Agent can
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undertake collective bargaining with the employer or employers on matters connected with employment, non-employment, the terms of employment or the conditions of work ; but so far as a worker is concerned the rights guaranteed or secured to him under any law or any award or settlement have to be enforced in accordance with the provisions of section 25-A of the Ordinance and if the Collective Bargaining Agent could not have collective bargaining for the enforcement of any right guaranteed or secured to a workman by or under any law other than the Ordinance then the intention of the Legislature clearly appears to be that such rights of workman have to be enforced in accordance with the provisions of section 25-A of the Ordinance and not under section 34 of the Ordinance. 20. It was then argued by Mr. Ali Amjad that if the provisions of section 34 are interpreted as are sought to be interpreted by the petitioner it would cause inconvenience to workmen where more than one workman are denied any right under any law in which case each one of them has to submit his grievance separately. The argument or convenience advanced by the counsel cannot be accepted for then we would be doing violence to the plain language of the Ordinance. If more than one workman are denied any right guaranteed or secured to them under any law, award or settlement they can directly or through Collective Bargaining Agent file a joint application for seeking redress but that application has got to be made under section 25-A of the Ordinance. Indeed there is ample authority for it in subsection (10) of section 25-A. Therefore, the argument of convenience is also not available to Mr. All Amjad. 21. The two decisions of this Court namely, Chamber of Commerce and Industry v. Presiding Officer, Sind Labour Court (Supra) and Rice Export Corporation of Pakistan v. Sind Labour Appellate Tribunal and 2 others (Supra) in which a…
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