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Civil Appeal No. 93 of 1964, decided on 14th June 1966.

(On appeal against the Award of the Industrial Court West Pakistan, Lahore, dated the 13th November 1961, communicated on 18th December 1961, in Industrial Dispute No. 5 of 1960).

, Art. 58(3) Leave to appeal to Supreme Court-Granted to consider validity of Award of Industrial Court with respect to some of the demands only in an industrial dispute and refused with regard to the rest.

In the petition for special leave to appeal validity of award was challenged by the Mill only with respect to Demands Nos, 2, 4, 7 and 16. Leave was, however, refused with respect to Demand No. 16. Thus three of the demands which were the subject- matter of appeal, were Demands Nos. 2, 4 and 7.

, S. 12 Industrial dispute-Award-Re-instatement awarded on ground of victimisation for Union activities-Supreme Court declined to interfere with finding of victimisation, such finding not being perverse or patently wrong on evidence-Whether re-instatement, or compensation, proper relief-No hard and fast rules can be laid down-Worker's case undefended in Supreme Court-Order of termination of service 10 years old-Compensation (one year's pay with allowances) ordered-Industrial and Commercial Employment (Standing Orders) Ordinance (III of 1960), S. O. 12.

From the workman's service record it appeared that till 13^th January 1954, he had been fined on three occasions but even then he was promoted as a Mistry on 1st June 1954. In May 1955, he was merely censured for wrong stamping. In view of the above the Industrial Court came to the conclusion "that workman's services were dispensed with on account of the Union activities because he admittedly was a member of the Union." The above also found support from the fact that at the time of his termination of service, that is, on 21st October 1956, no notice as provided under Standing Order No. 12, was served on him. It was only after his representation, that is, on 7th November 1956, notice of discharge was served on him. In these circumstances it could not be said that the view taken by the Industrial Court was perverse or patently wrong. As the view taken by the Industrial Court on the evidence before it was a possible view, the Supreme Court declined to interfere with the said findings.

Whether the relief of re-instatement or compensation for wrongful discharge would be appropriate remedy would, however, depend upon the circumstances of each case. No hard and fast rule can be laid down in this connection. The workman's services were terminated in 1956, that is, about 10 years ago. The Union or the workman had not appeared before the Supreme Court. It seemed that since then he had obtained employment elsewhere and was therefore, not keen to be re-instated to his old post. In these circumstances it would not be to his or any one's interest to thrust him on a Company which was unwilling to employ him. Even if a direction was given for his re-instatement, the Mill would be at liberty after complying with the order of re-instatement to proceed against him in accordance with the mode provided by law. In view of the above facts and circumstances the ends of justice would be met by awarding compensation to him. Hence while setting aside the order of his re-instatement, the Supreme Court directed that he should be paid a year's salary, that is, basic pay with all allowances, as compensation.

Glaxo Laboratories (Pakistan) Limited v. Pakistan and others PLD 1962SC60ref.

S. 12 ---Industrial dispute-Award-Industrial Court's award directing installing of automatic time-recording machines at gate of Mill Industrial Court's ad hoc conclusion, arrived at without considering financial implication, availability of machines and difficulty of foreign exchange-Award set aside.

Held, the contention on behalf of the Mill that the finding of the Industrial Court reinstalling of time-recording machines was based upon no evidence; and that there was no justification for installation of such time-recording watches at a very heavy expense was not without substance. The above order seemed to be without any reference to practical consideration as to the feasibility of installation of such a machine. Further, the Industrial Court had really come to an ad hoc conclusion without considering the financial implication, the availability of such a machine and the difficulty about the foreign exchange. The award under this demand was therefore arbitrary and based on no evidence and so must be set aside.

, S. O. 9-Sick leave with or without pay within discretion of Management. Standing Order No. 9 clearly leaves the question of grant of sick leave with or without pay to the Management. Simply because the Mills may be in a position to bear this expense, that could not be a ground for granting sick leave with pay. Award of the Industrial Court given contrary to provisions of S. O. No. 9 was set aside.

Hourly Paid Employees Association (Regd.), Rahimyar Khan v. Lever Brothers Pakistan Limited, Rahimyar Khan 1961 P L C 784 and Fazal Gulzar Textile Mills Workers' Union, Hyderabad v. Fazal Gulzar Textile Mills, Hyderabad 1961 P L C 1288 ref.

Mahmud Ali Qasuri, Senior Advocate Supreme Court (Miss R. S. Qari, Advocate Supreme Court with him) instructed by Siddiq & Company Attorneys for Appellants.

Respondents: Ex parte.

Dates of hearing: 19th and 20th January 1966.

This appeal by special leave arises from an Industrial Dispute between the appellant Abbasi Textile Mills and the respondents its workers called Abbasi Textile Mills Workers' Union.

Originally the reference to the Industrial Tribunal mentioned 14 demands. By a subsequent Notification three more demands were added. On promulgation of the Industrial Disputes Ordinance, 1959, the said dispute was referred to the Industrial Court under section 5(3) of the Ordinance. Thus 17 demands were considered by the Industrial Court in the light of the evidence adduced before it by the respective parties and decided on merits.

In the petition for special leave to appeal validity of award was challenged by the Mill only with respect to Demands Nos. 2, A 4, 7 and 16. Leave was, however, refused with respect to Demand No. 16. Thus three of the demands which are the subject-matter of this appeal, are Demands Nos. 2, 4 and 7.

Demand No. 2.-Only that part of the award under this demand is challenged by which the Industrial Court has ordered re-instatement of Kale Khan, a Shift Mistry in the Reeling Department.

He joined the Mill in 1950. He was promoted as a Jobber in February 1952 and as a Shift Mistry in 1954. His services were terminated with effect from 21st October 1956, Mr. M. A. Ansari, Personnel Secretary replied to his representation on 7th November 1956, stating that as he had been censured several times for his inefficiency, the Management was justified in terminating his service. On the same day the General Manager served a notice on him that his services were no longer required and that he would be paid 12 days wages in lieu of notice. He was then paid all his dues and in the receipt granted by him be stated that he had no complaint against the Mill.

Kale Khan in his affidavit before the Industrial Court stated that he had been victimised on account of his Union activities. Raja Subah Sadiq, Personnel and Public Relations Officer, in reply to the said affidavit stated that his services "were dispensed with in accordance with the rules as his services were not required".

The Industrial Court was however unable to accept the plea of the Management because it found that the reason given by Mr. M. A. Ansari, Personnel Secretary, for termination of Kale Khan's service was quite different from the reasons given by Raja Subah Sadiq in his evidence. Furthermore, from Kale Khan's service record it appeared that till 13th January 1954, he had been fined on three occasions but even then he was promoted as a Mistry on 1^st June 1954. In May 1955, he was merely censured for wrong stamping. In view of the above the Industrial Court came to the conclusion "that Kale Khan's services were dispensed with on account of the Union activities because he admittedly was a member of the Union." The above also finds support from the fact that at the time of his termination of service, that is, on 21st October 1956, no notice as provided under Standing Order No. 12, was served on him. It was only after his representation, that is, on 7th November 1956, notice of discharge was served on him. In these circumstances it could not be said that the view taken by the Industrial Court was perverse or patently wrong. As the view taken by the Industrial Court on the evidence before it was a possible view, we decline to interfere with the said findings.

Now the question is: Whether the relief of re-instatement or compensation for wrongful discharge would be appropriate remedy in this case.

As pointed out in the Glaxo Laboratories (Pakistan) Limited v. Pakistan and others (P L D 1962 S C 60) "it would, however, depend upon the circumstances of each case whether the relief of re-instatement or compensation for wrongful discharge from service would be the appropriate remedy. No hard and fast rule can be laid down in this connection." Now Kale Khan's services were terminated in 1956, that is, about 10 years ago. The Union or Kale Khan has not appeared before us. It seems that since then he has t obtained employment elsewhere and is therefore, not keen to be re-instated to his old post. In these circumstances it will not be to his or any one's interest to thrust him on a Company which is unwilling to employ him. Even if a direction is given for his re-instatement, the Mill would be at liberty after complying with the order of re-instatement to proceed against him in accordance with the mode provided by law. In view of the above facts and circumstances I think that the ends of justice would be met by awarding compensation to him. Hence while setting aside the order of his reinstatement, I would direct that he should be paid a year's salary, that is, basic pay with all allowances, as compensation.

Demand No. 4.-Under this demand the workers wanted installation of the time recording watches at the gate of the Mill for recording time of arrivals and departures of the workers on their attendance cards. Under the present system the workers are given a fortnightly attendance card on which their presence is marked every day both before and after the midday interval. After expiry of the fortnight or when a worker is discharged or dismissed, this attendance card is taken away from him. Their grievance was that sometimes their attendance was not marked on the attendance cards. The Industrial Court while accepting this demand observed:

"When marking of the attendance of the workers is in the hands of the executive officers employed by the Management, the possibility of their refusing to mark these workers present in spite of their presence in the Mill on the ground that they were taking active part in the Union activities, cannot be excluded. The workers who have presented themselves at the gate of the factory have no means whatsoever, to compel the Time Keeper or other relevant authorities to mark their presence on the attendance cards. The defect in this system is substantial and of very far reaching consequences for the workers. The only method although not very perfect to mark the attendance of the workers, is to order the Mill to install automatic machines at the gates of the Mill so that the presence of the workers is automatically marked upon the attendance cards."

The Industrial Court, therefore, accepted this demand and ordered for installation of time recording machines on the gate of the Mill. They however, did not fix a time limit because the Management had to obtain import licence for getting those machines from abroad. The contention on behalf of the Mill that the above finding of the Court is based upon no evidence, and that there is no justification for installation of such time recording watches at a very heavy expenses is not without substance. The above order seems to be without any reference to practical consideration as to the feasibility of installation of such a machine. Further, the Industrial Court has really come to an ad hoc conclusion without considering the financial implication, the availability of such a machine and the difficulty about the foreign exchange. Hence Mr. Muhammad Ali, the learned counsel was justified is attacking the award, under this demand, as arbitrary and based on no evidence. For the reasons stated above the award under this head must be set aside.

Demand No. 7.-Under this demand the workers claimed grant of 21 days privilege leave, 10 days casual leave and 21 days sick leave in a year with pay and allowances. The Industrial Court accepted this demand to the extent of granting 10 days sick leave with pay in a year, in addition to all other holidays allowed by law. Standing Order No. 9 of the Schedule attached to the Industrial and Employment (Standing Orders) Ordinance, 1960 is in these terms:

"Casual leave:-A workman may be granted casual leave of absence with or without pay not exceeding 10 days in the aggregate in one calendar year. Such leave shall not be for more than three days at a time except in the case of sickness. Such leave is intended to meet special circumstances which cannot be foreseen. Ordinarily, the previous permission of the head of the department in the establishment shall be obtained before such leave is taken, but when this is not possible, the head of the department shall, as soon as may be practicable, be informed in writing of the absence from and of the probable duration of such absence."

The Industrial Court while awarding 10 days sick leave with pay observed:

"So far as payment of wages for the casual leave is concerned, no doubt the law says with or without pay'. But the discretion is not entirely left with the Management and Industrial Court, in suitable cases, can accept a demand of the workers and award casual leave with pay. If the Legislature wanted to leave payment for the casual leave in the exclusive discretion of the Management, then it could have said so in the Standing Order No. 9. Failure to do so shows that the Court can in appropriate cases accept the demand and say that the sick leave should be with pay. In the instant case I think, taking into consideration the financial position of the respondent Mills, it is just and proper that they should give their workers sick leave with pay because if the workers get ill and have to remain absent from duty on account of illness, then they should not be allowed to starve in those days."

It may be pointed out that this very Industrial Court while dealing with a similar question in the case of Hourly Paid Employees Association, (Regd.), Rahimyar Khan v. Lever Brother Pakistan Limited, Rahimyar Khan (1961 P L C 784), observed at page 828:

"So far as the casual leave is concerned, a provision is made in Standing Order 9 of the Schedule attached to the Industrial and Commercial Employment (Standing Orders) Ordinance III of 1960. According to this provision of law, a workman may be granted leave of absence with or without pay not exceeding ten days in the aggregate in one calendar year. Such leave shall not be for more than three days at a time except in the case of sickness. Such leave is intended to meet special circumstances which cannot be foreseen. If the period of casual leave is fixed by the Legislation, then quite clearly it cannot be enlarged by me nor can it form the subject-matter of an award because a worker is entitled to it by the force of law which need not be re-enforced by an award.

The next question is whether the casual leave should be with or without pay. Again the law has not made it compulsory that a worker should be granted leave with pay which it has done in the case of the holidays which are provided for in Chapter 4(a) of the Factories Act XXV of 1934. If the Legislature did not consider it necessary to compel the Management to pay to the workers for the casual leave, I do not think it is within the power of the Industrial Court to lay down any hard and fast rule. Every case shall have to be decided on its own merits and the Management has got a discretion in the matter that is to say, whether to allow a worker such leave with pay or without pay. It will be wrong for the industrial Court to place any restriction on this discretion."

Again in the case of Fazal Gulzar Textile Mills Workers Union, Hyderabad v. Fazal Gulzar Textile Mills, Hyderabad (1961 P L C 1288), the same Court while dealing with the question of grant of casual leave observed at page 1297:

"The law has also given discretion to the Management to grant such leave with pay or without pay. It is difficult for me to take this discretion away from the Management and compel them to give casual leave with pay."

It, therefore, seems clear that the present award of the Industrial Court is not only not in accordance with its previous awards but also contrary to the Standing Order No. 9. The said Order clearly leaves the question of grant of sick leave with o without pay to the Management. Simply because the Mill may be in a position to bear this expense, that could not be a ground for granting sick leave with pay. In these circumstances Mr. Mahmud Ali was justified in attacking the award under this head as contrary to the provisions of Standing Order No. 9. Hence the award under this demand cannot be sustained.

I would, therefore, set aside the award as far as Demands Nos. 4 and 7 are concerned and modify the award in respect of Demand No. 2 in the manner indicated above. As no one has appeared for the workers, I would not make any order as to costs.

I agree.

I agree.

I agree.

I agree,

A. H. Order accordingly.

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