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Petitioner: WORKERS UNION VS Respondent: THE TRANS OCEANIC STEAMSHIP Co. LTD. KARACHI
Court Name: Labour Court Judge(s): Agha, Muhammad Rasheed, Kasam Usman Kandawala, Agha Imdad Ali Title: WORKERS UNION vs THE TRANS OCEANIC STEAMSHIP Co. LTD. KARACHI Case No.: Industrial Dispute No., 78 of 1967 Date of Judgment:1970-12-23 Reported As: 1972 PLC 119 Result: accordingly disposed of
Judgment AWARD AGHA IMDADALLY (CHAIRMAN).-This application is under section 5 (5) of the Industrial Disputes Ordinance, 1959 (herein--after referred to as "the Ordinance") and is brought by the Trans Oceanic Steamship Co. Workers' Union, Karachi against their Employers who are the Trans Oceanic Steamship Co. Ltd., Karachi. Alongwith this application certificate of failure of conciliation proceedings with which is attached a schedule of 13 demands by the said Union is also filed with a prayer that all these demands be adjudicated upon and determined. 2. After this application was moved the Union has also filed a brief statement of all their demands in which in the first para. It is stated that all the demands which have now been raised for adjudication and determination were first raised on or about 8th February 1966 and the same had been in the process of adjudication with the West Pakistan Industrial Court No. 2, Karachi being the subject-matter of Industrial Dispute Case No. 16/66 in that Court till 27th July 1967 when it is alleged, this Industrial Dispute Case was illegally withdrawn by the then deposed and unauthorised General Secretary of the Union. Thereafter, it appears, the present Industrial Dispute was raised and ultimately, as said already, a certificate of failure of conciliation proceedings was granted to the Union and hence this case. 3. The demands as mentioned in the Charter of Demands attached to this Failure Certificate are as follows:- (1) All workshop and outdoor workers shall be made per--manent and on monthly payment basis. (2) All new comers shall become permanent on completion of three months' service automatically. (3) Pay-scale shall be fixed for the following categories of workmen as under:
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(a) Fitters. Rs. 270-20-390 per month. Turners. Bench Fitters. Boiler Makers, Shipbuilders. Welders. Pipe Fitters/Plumbers. Electricians. Flame Cutters. Blacks miths. Launch Drivers. (b) Painters. Rs. 210-15-270 per month. Welding Plant Operators. Carpenters. Khalasis. Hammermen. (c) Chowkidars. Rs. 120-10-180 per month. Peons. Sweepers. Unskilled Labourers.
(4) All workshop and outdoor workers shall be provided with free conveyance or in the alternative they shall be paid Rs. 15, as Conveyance Allowance. (5) Provision of free residential accommodation shall be made to all the workmen or in the alternative they shall be paid Rs. 25 per month as House Rent Allowance. (6) All the workmen shall be paid to months' salaries as Bonus each for the years 1964, 1965 and 1966. (7) All the workmen shall be paid Dearness Allowance 45 % of their salaries with minimum as Rs. 60 per month. (8) Benefits of Contributory Provident Fund shall be extended to all categories of workmen with 12 % as rate of contribution. (9) All workshop and outdoor workers shall be paid to months' salary as Gratuity for each year of service. (10) Following leave shall be granted to all workmen every year: -
(i) Earned Leave 30 days with full pay. (ii) Casual Leave 30 days with full pay. (iii) Sick Leave 25 days with full pay. (iv) Festival Holidays12 days with full pay.
(11) Free medical facilities shall be provided to all workshop and outdoor workers and their families. (12) Two Boiler Suits shall be supplied to all the workmen every year. (13) Union reserves the right to raise any other demand at any the during the period of dispute.
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4. After the brief statement filed by the Union justifying their demands the other side i.e., the respondent-company, filed its reply statement. In their reply statement they have at first raised certain preliminary legal objections. These objections are, (1) that no demand appears in the Failure Certificate nor any list of demands is attached to it thus the matter falls outside the scope of jurisdiction of this Court, (2) teat demands Nos. (1), (2) and (8) to (10) are governed by the Standing Orders Ordinance (the year of which is not mentioned) as such they cannot be the subject-matter of an Industrial Dispute and (3) that the demand No. 13 does not constitute an industrial dispute. The reply statement further shows that the respondent-Company opposes all the 13 demands which are described to be financial and the precise nature of these objections will be referred to and discussed at the relevant place. 5. I might also mention that counter-objections have been filed on behalf of the Union. Thereafter the file of the present proceedings shows that an application under section 10 (1) (a) of the Ordinance was moved on behalf of the respondent-company contending, inter alia, that ail the demands raised in this case could not be raised again due to withdrawal of the Industrial Dispute Case No. 16/66 referred to already. Objections raised by this application were tried and heard as preliminary objection during the course of which the respondent-company adduced evidence of their Operations Manager, Mr. R. P. Kooka and the Union examined three witnesses namely, Mr. Ghulam Ahmad their General Secretary, Mr. Ghulam Muhammad their Vice---President and Mr. Muhammad Yaqoob. Joint Secretary of the Union. These preliminary objections were decided by an interim award by the learned the then Chairman Mr. Fazli Khaliq Khan on 22-7-1968 by which order he rejected these preliminary objections. Thereafter the case has proceeded in a regular way and evidence has been adduced by both the sides. The. Union has examined three witnesses namely, Mr. Ghulam Muhammad (Boiler Maker) (P. W. 1), Mr. Ghulam Ahmad (Welder) (P. W. 2) and Mr. Yaseen (Fitter) (P. W. 3). The respondent's side has examined the said Operation Manager Mr. R. P. Kooka (R. W. 1) and Mr. Naseem Ahmad (R. W. 2) who is Labour Officer, Labour Welfare Office, Labour Department at Karachi. 6. I find in the file of the case that before I have taken it up to more learned Chairmen of this Court have also handled it. The last learned Chairman before me also heard arguments and written arguments had been filed before him by the learned respective Representatives for the parties. I have also again heard the arguments from these Representatives on the whole case. 7. I will now proceed to take up each demand for adjudication and determination in the serial order in which they are shown above. 8. Demand No. 1.-The evidence led by the parties admittedly shows that the respondent-company carries on work through its workmen in its workshop where some workmen do their work and the other workmen; according to their witness Mr. R. P. Kooka, are employed to do work of repair of ships at the Karachi Harbour. This witness further says that the respondent-company is engaged in transporting cargo overseas as well as cargo and passengers to and from East Pakistan. According to him all the workshop workers are permanent but the workers engaged in the repairs of ships are temporary as his company carries on repairs of their own ships only and that temporary workers do their work whenever there is a Vessel for repairs but when there is no Vessel for repairs the temporary workers are not employed. He also categorically states that workshop workers are permanent but the outdoor workers who worked on the ships repaired in the Wharfs are temporary and, according to him, cannot be made permanent in view of the nature of their work. He also further mentions that if a worker in the workshop performs his work to the satisfaction of the company he would be made permanent after three months. In his cross-examination this witness admits that the respondent---company had started its work in 1949. He also admits that the respondents-company has not given anything writing about making a workman permanent after three months' service brat he is verbally told that he has made permanent. He further goes not to
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admit that the workshop and outdoor workers are not given any letter of appointment when they are taken in service nor the respondent-company issues any identity cards to them because, according to him, they are daily wages workers. He also further admits that the respondent- company gives their workers passage ticket to Chittagong and back some of which he has produced as Exhs. P. 11/1 to 6. He has also produced crew passes which are Exhs. P. 12/1 to 4. In the evidence of Mr. Ghulam Muhammad (P. W. 1) on the side of the Union he has, inter alia, said that the workmen who also go to Mauripur and the Port area they are given conveyance allowance for it. He also says that there are about 100 workmen employed with the respondent-company. He also then says that the respondent---company gets its own ships repaired by the workmen and does not repair the ships of any other company and this repairs work is carried on throughout the month as ships of the company are always present for repairs. This witness then admits that all the workshop employees are permanent. The next witness of the Union Mr. Ghulam Ahmad (P. W. 2) also admits in his cross-examination that the workshop employees are permanent. The facts thus admitted by to witnesses of the Union clearly show that all the workshop employees in the respondent- company are permanent and hence no order regarding these workmen being 'made permanent need be passed. 9. As regards the other workmen who are described as out--door workers and according to the Operations Manager of the respondent-company this class of workers is referred to by him as temporary workers who perform their duties whenever there is a Vessel for repairs but when there is no vessel for repairs these workers are not employed which, as the respondent-company would have us understand, is that these outdoor workers are casual workers employed only when there is work available for them as such they would be considered to be temporary workmen. Before proceeding to decide this question it will be pertinent to note that as this Industrial Dispute has come to the Court in the month of December 1967 hence the relevant law existing at that the would govern this situation and it is the Industrial and Commercial Employment (Standing Orders) Ordinance, 1960 (hereinafter referred to as the "Standing Orders Ordinance"). In this Ordinance the three expressions Lt., a permanent workman, a temporary workman and a casual workman have been defined in Standing Order No. 1 in which these expressions are assigned the following meanings: - "(b) A "Permanent" workman is a workman who has been engaged on a permanent basis and includes any workman who has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment, including break due to sickness accident, leave, lock-out, strike (not being an illegal strike) or involuntary closure of the establishment. (c) A "temporary" workman is a workman who has been engaged for work, which is of an essentially temporary nature likely to be finished within a limited period. (f) A "casual" workman is a workman whose employment is of a casual nature." 10. It will be seen from the definition of the expression "a permanent workman" that it covers the case of a workman who has been engaged on a permanent basis while if he has been engaged for work which is of essentially temporary nature likely to be finished within a limited period then only he can be said to be a temporary workman. I like to add that looking to the nature of the work performed by the workmen of the Union as outdoor workers doing the job of repairs of ships which as also said, is being done throughout every month then obviously it cannot be said that this is a work of casual nature and every workman employed to do this work could be said to be a casual workman as such this possibility of the present workmen being held as casual workmen is ruled out. The question then is whether they should be considered permanent workmen or temporary workmen. In my considered opinion the nature and the continuity of the repairs work of ships that these workmen are doing clearly show that they have been engaged on a permanent basis, in
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other words, that it seems, all these workmen have been returning to do the same job and kind of work throughout every month facts contrary to which have not been stated by the Operations Manager examined on behalf of the respondent-company. It can no doubt be said that when the work that these workmen do on every day hence they can be said to be engaged for work which is in some respects of an essentially temporary nature likely to be finished within a limited period i.e., when the repairs of one ship are finished, but as we have it in evidence the other ship, it seems, is always ready for repairs, therefore, it cannot be strictly speaking said that the work so done by a workman is such that they can be deemed to have been engaged for work which is of an essentially temporary nature likely to be finished within a limited period of the. In fact it can well be said by the other side that these workmen are engaged for work which is not of temporary nature at all as there is no element of temporariness of nature in this kind of work as obviously it is continuous, day in and day out. In this sense it is abundantly clear that all the outdoor workmen cannot be deemed or considered to be temporary workmen a, they are obviously engaged on a permanent basis as the circum--stances of this case show. 11. I would, therefore, direct that the respondent-company `should treat these outdoor workers as permanent workmen in accordance with the definition of such workmen mentioned already above which is also their statutory right under the Standing Orders Ordinance of 1960. It is stated by Mr. Ghulam Muhammad (P. W. 1) on behalf of the Union that he has been working since 11 years in the respondent-company but he has not been made permanent so far and likewise the remaining workers have also not been made permanent though they have more than .One year's service. This allegation has not been controverted much less refuted by the Operations Manager Mr. R. P. Kooka (R. W. 1) on behalf of the respondent---company hence it is to be taken as correct. I, therefore direct that the respondent-company shall treat and make all the outdoor workers also as permanent in accordance with definition of this expression as shown above. 12. That brings us to the other limb of this demand which is that all these workers in the workshop arid who do out--door duties shall be made permanent on monthly payment basis. The witness for the respondent-company Mr. R. P. Kooks (R. W. 1) admits in his cross-examination that the workmen of the workshop are monthly rated in the sense that they are given wages on daily wages at the end of the month so that as regards these workmen the respondent-company through its own witness admits that they are monthly rated workers as such they shall be treated accordingly as admitted by this witness. As regards the out door workers the respondent company is directed to treat them also likewise as they are already held by me above to be permanent workmen and I see no reason why they should not be considered as permanent on monthly payment basis as their counterparts who work in the workshop. 13. Demand No: 2.---By this demand the Union claims that ail new workmen employed by the respondent-company in workshop and as outdoor workers shall become permanent on completion of 3 months' service automatically and as this demand seems reasonable as well as legitimate both under the Standing Orders Ordinance of 1960 as well as present such Ordinance of 1968 as also for the reasons that are given while deciding the preceding demand, therefore, it is ordered that the respondent-company shall allow this demand to the new--comers as claimed and it is accordingly accepted. 14. Demand No. 3.-As regards this demand Mr. Ghulam Muhammad (P. W. 1) has in his testimony deposed that there are no fixed pay-scales in the respondent-company and claim is made by him that the Union's workers should be given the pay-scales mentioned in the Charter of Demands under this very demand which is attached to the Failure Certificate and he has also stated that besides loading and unloading work the respondent-company makes the Union's workmen to do other work also on the barges, cargo Boats and launches of its own. The workers, he also adds, do the repairs work of the machinery of Salt Factory situated in Mauripur, which is near main Karachi
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City. This witness has also produced the memorandum of settlement entered into between Messrs Keamari Docks Ltd., and its workmen through its Union as Exh. P-A to which is attached Annexure A showing the existing maximum daily wages of various workmen and the raise in their wages made at that the. He has also produced a true copy of the agreement between Messrs Keamari Docks Ltd., Karachi and workers of its Union dated 28th March 1963 as Exh. P.B. These to documents have been produced by hire mainly as evidence by way of showing the position of comparable concern on the questions involved for adjudication in this case. Mr. Ghulam Ahmad (P. W. 2) has also produced the General Manager's instructions issued in the Karachi Shipyard and Engineering Works Ltd., dated 23rd December 1961 as Exh. P-C on the same subject. The third witness on behalf of the Union Mr. Yaseen (P. W. 3) has produced the schedule of wage rates in the Karachi Shipyard arid Engineering Works. Ltd. Dated 26th February 1969 as Exh. P-Dr schedule of wage rates for the workers in Economic Engineering Company as Exh. P-E and the list of wage rates of the workers in the respondent-company as Exh. P-F. All these documents have not been challenged in any manner whatsoever in the evidence led by other side. Mr. Yaseen (P. W. 3) had also stated that the respondent-company earns profit and Mr. Ghulam Ahmad (P. W. 2) in his cross-examination has stated that the main source of income of the respondent-company is by carrying passengers and cargo to Chittagong. In this respect it will he pertinent to note the testimony of Mr. R P. Kooka, Operations Manager of the respondent-company whose evidence coupled with all the other evidence on record also shows that the respondent-company besides carrying on the business of taking passengers and cargo to and from Chittagong for which purpose the respondent-company has a workshop where its employees work and the Company also does ship repairs work which appears to be mainly confined to its own ships which it possesses. The Operations Manager on the first date when his evidence was recorded stated in his examination-in-chief that he "sac' not brought the schedule of pay-scales which be said he will produce and the note made- by the Court is that the witness was directed to produce the pay-scales on the next date of hearing. On this next date when the cross-examination of the witness continued he stated therein that he had not brought pay roll for the years 1965 and 1966. In fact no other document being the pay roll of the respondent-company's workmen of the schedule of wage rates paid to these workmen was also produced on behalf of the respondents. I would like to add here that the respondent---company has not tried even to introduce any evidence on the question in controversy in this case from the comparable concerns which are admittedly innumerous. So that for resolving the present controversy on this demand we have mainly to rely upon the evidence concerning this demand produced on behalf of the Union. 15. The wage list of the respondent-company's workers Exh. P-F, also referred to already, shows that the unskilled labour gets Rs. 2.50 per day and the maximum given to a workman as shown in this list per day is Rs. 6.75 while the other workmen which cannot fall within the category of unskilled labour get minimum Rs. 3.50 per day as shown in the list. Mr. Ghulam Ahmad (P. W. 2), however, admits in his cross---examination that in 1967 the respondent-company increased the pay of its employees in the workshop by Rs. 0.25 per day. Obviously the wage rate, as it appear of the outdoor workers who have to do work away from the workshop i.e., mainly at the Wharfs, was not increased as there is no evidence to that effect from the respondent side. It, therefore, falls to be considered and decided whether the wage rata of the outdoor worker requires to be fixed by pay- scales as also regarding. The workshop workers as claimed under the present demand in the Charter of Demands. These pay-scales as shown in this demand provided for monthly wages or so to say salaries. The first question, therefore, that arises for consideration is whether monthly pay- scales should be ordered to be fixed or the system of daily wage rate as it exist now in the respondent-company should be allowed to continue. In the arguments the Representative for the Union has not advanced any submission on this aspect of the demand, nor the Representative for
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the other aide, and I also sea no particular reason to disturb the order of payment of wages or salaries as obtains in the respon--dent-company at present, therefore, .I would not like to fix Precise monthly pay-scale as claimed in this demand but suffice it to say that if rate of wages are now revised and fixed by me this order should meet the ends of justice. While considering this point it is pertinent to note that the workers of the Union who have been classified in three categories described as (a), (b) and (c) in this demand in the Charter of Demand would get Rs. 9.00 per day as wages subject to increase as mentioned therein for category (a) of workmen, Rs. 7.00 per day subject to same increase as mentioned for category (b) of the workmen and Rs. 4.00 per day subject to similar increase as said for category (c) of its workmen which category deals with only unskilled workers. Regarding the unskilled workers rates of wages in the three .Comparable concerns i.e. Messrs Keamari Docks Ltd., Messrs Karachi Shipyard & Engineering Works Ltd., and Economic Engineering Company which show, broadly speaking, from the documents Annexure A to Exh. P. A. Exh. P. D. And Exh. P-E that the unskilled worker in these concerns gets minimum Rs. 3.00 per day while similar worker in the respondent-company gets Rs. 2.50 daily. The demand for this category of workers is a wage of Rs. 4.00 per day although specific evidence on the point as which class of workers do work in the workshop and which of them do outdoor work has not been led it appears to me that mainly the unskilled labourers would be working in the workshop looking to the nature of business carried on by the respondent-company. It is also admitted in the evidence on behalf of the Union that in 1967 the respondent-company Increased the pay-scale of workers in the workshop by Rs. 0.25 per day. But nonetheless this was perhaps in the beginning of the year 1957 and the present dispute has been raised in the last month of this year as it seems this very question agitated the minds of the labourers. It is common knowledge of every adult citizen of our country that the prices of even necessary commodities in the past decade have been rising from the to the and they still continue to rise. Looking, therefore, to the cost of living which keeps rising periodically by passage of the it is quite obvious to conclude that a worker in the labour class is greatly affected adversely on account of this change and hence as it is also essential to keep the Industries going and running smoothly as well as to maintain the employer and labour relations therein on an even keel it is essential, I feel, that considering these factors the workers of the Union in this case ought to get some relief in their wage rate. One of the witnesses of Union, as already shown above, has stated that the respondent-company earns profit which fact has not been denied by the other side nor any evidence is led by it to prove to the contrary. I might also mention in this behalf that no industry or concern can keep running even for a few months at loss. Looking, therefore, to the evidence regarding the comparable concerns on this point I would allow minimum wage of Rs. 3.00 per day to the unskilled labourers in the workers' Union until the the when this minimum was raised and actually given accordingly to the latest labour laws on this subject. It would not be just to allow more than this in the circumstances of the present case as they are now because no evidence has been led by the Union to show ho v much profit the respondent- company is making. The documents mentioned already pertaining to the comparable concerns do not show clearly that…
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