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Appeal No. LHR:180 of 1969, decided on 9th July 1969.

---S. 16 read with S. 8(6)‑Parties submitting dispute to Industrial Court for adjudication by agreement that award of Industrial Court would be binding on them‑Award, notwithstanding agreement of parties, held, appealable under S. 16.

From the fact that the award would be binding upon the parties, it does not follow that the award was not given by Industrial Court. If the parties agreed that the award given by the Industrial Court. If the parties agreed that the award given by the Industrial Court will be binding on them, it would not

preclude them from fling the appeal.

, S. 3S‑Dally‑rated work men‑Entitled to wages for Sundays.

Under section 35 of the Factories Act, 1934, a workman is' allowed one day of complete rest, which is irrespective of the fact whether he is daily‑rated or monthly‑rated, without having to worry about his wages fur that day. The underlying idea under section 35 of the Act is to help a workman and not to deprive him of his wages and thereby to reduce his income. The daily‑rated workers generally belong to a class of persons who must work everyday to earn enough to get food and cloths, however meagre, for themselves and their families. They cannot afford the luxury of enjoying a holiday without earning anything for four days in a month. The law does not make any distinc tion between the daily‑rated workers and monthly‑paid workers. It was not the case of the appellant‑Company that in fixing the daily wages of the workmen, the company had taken into consideration the wages that these workmen will not receive for four Sundays. The daily‑rated workmen of the appellant Company in the circumstances, were, entitled to wages for Sundays as well.

1963 P L C 914 and 1963 P L C 19 rel.

A. A. Shareef for Appellant.

Zlaullah Khan for Respondent.

Date of hearing : 8th July 1969.

This is an appeal against the award of the learned Chairman of the West Pakistan Industrial Court (Northern Zone), Lahore, dated 14th April 1969. The respondent‑Union had filed an industrial dispute in respect of a number of demands. . The parties settled memo. of the demands through mutual negoiations and filed a settlement before the Industrial Court. The only demand which the parties could not settle was in respect of Demand No. 4. The agreement in respect of the said demand read as under :‑

Demand No. 4.‑That the Company should pay wages to all workers for Sundays and other gazetted holidays from the ginning of season 1968 and this right of workmen should be accepted.

Agreement.‑Award of West Pakistan Industrial Court on the demand shall be binding on the parties."

2. The learned Chairman of the Industrial Court, after considering the evidence of Malik Aman, an employee of the Pakistan Tobacco Company and Amir Khan, a clerk in Khyber Tobacco Company, allowed wages for Sundays and holidays to daily‑rated workmen of the appellant‑Company. The learned Industrial Court further observed that it was quite reasonable and fair that all the employees get rest for a day it a week and should not be deprived of wages for the rest.

3. On behalf of the respondent, it was urged that according to the agreement arrived at between the parties, the intention of the parties was to appoint the Industrial Court as an arbitrator, whose award would be binding on the parties. In other words, the submission of Mr. Ziaullah Khan, the learned Representative for the respondent‑Union, was that the parties intended to appoint the Industrial Court as sole Arbitrator, whose award was binding upon the parties. In that view of the matter, it was contented that no appeal lay to this Court. On the other hand, Mr. Shareef, the learned Representative for the appellant, contended that the Court gave the award as an Industrial Court and, therefore, it was appealable. The agreement not to file the appeal was bad in law. There is much force in the contention of Mr. Shareef that the Industrial Court gave the award as an industrial Court and, therefore, it is appealable. In the first place, a perusal of the award of the learned Chairman of the Industrial Court would disclose that he gave the award as an Industrial Court. In the second place, from the fact that the award would be binding upon the parties, it does not follow that the award was not given by the Industrial Court. If the parties agreed that the award given by the Industrial Court will binding on them, it would not preclude them from filing the appeal. I would hold that the appeal is maintainable.

4. Mr. Shareef, the learned Representative for the appellant, submitted that the Premier Tobacco Company Limited was a seasonal Company. It worked only in a particular season of the year.

5. The demand can be split up into two portions, namely, in the first place, wages for Sundays and in the second place, wages for Gazetted Holidays. The learned Industrial Court granted the demand in toto relying on the evidence of Malik Aman and Amir Khan, on behalf of the respondent‑Union. Malik Aman stated that Pakistan Tobacco Company was a seasonal Factory. The season extends to about six months. The scale of pay .of general worker is from Rs. 108.00 to Rs. 136.00 per month and that there was no daily wages system in that Factory. He further stated that the seasonal workers are granted Sundays and Gazetted Holidays with pay. Similarly, Amir Khan stated that Khyber Tobacco Company, Mardan, employed seasonal workers at the rate of Rs: 90‑2‑108 per month. According to him, the seasonal workers get Sundays and Gazetted Holidays with pay. Mr. Shareef, the learned Representative for the appellant, contended that the statements of Malik Aman and Amir Khan did not support the contention that similar factories as that of the appellant granted wages for Sundays and other Gazetted Holidays to daily‑rated workmen. In other words, the suggestion was that the evidence of these two persons established that the persons who received wages for Sundays and other holidays, were monthly‑rated workmen and those receiving pay per month were entitled to pay for Sundays as well. The pay for Sunday was necessarily included in the pay of those, who wore engaged on monthly basis. On the other hand those who were engages on daily wages, they were to receive their wages only for the days that they worked and not for their wages other holidays when they did not work. There is much force in this contention. On the other hand, Mr. Ziaullah Khan, the learned Representative for the respondent‑ Union, contended that there is nothing on the record to show that the daily‑rated workmen of the Company, though employed only for the season; are not permanent workmen. These daily‑rated workmen come from far off places to work in the factory. They would prefer to work even on Sundays if the law so allowed in order to increase their earning. Under section 35 of the Factories Act, 1934, a workman is allow, one day of complete rest, which is irrespective of the fact that whether he is daily‑rated or monthly‑rated, without having to worry about his wages for that day. The underlying idea under section 35 of the Act is to help a workman and not to deprive him of his wages and thereby to reduce his income. The daily‑rated workers generally belong to a class of persons, who 'must work everyday to earn enough to get food and clothe, however, meagre for themselves and their families. They cannot afford the luxury of enjoying a holiday without earning anything for four days in a month. The law does not make any distinction between the daily‑rated workers and monthly paid workers. It is not the case of the appellant that in fixing the daily wages of the workmen, the Company had taken into consideration the wage; that these workmen will not receive for four Sundays. In this connection, reference may be made to two cases, the one decided by Mr. Justice Abdul Hamid, reported in 1963 P L C 914, and the other decided by Mr. Justice M. Khurshid Zaman, reported in 1963 P L C 19. In both the cases, the learned Chairmen of the Industrial Court, relying upon section 35 of the Factories Act, 1934, granted wages for Sunday to daily‑rated workmen. They observed that the intention underlying under section 35 was not to reduce the earnings of the workers by providing a compulsory holiday. 'I would hold that the daily‑rated workmen of the appellant Company are entitled to wages for Sundays as well.

6. The demand, as I have already observed, has been divided into two portions for the purposes of disposal of this appeal. As to the demand for wages for Sundays, I have already maintained the award of the learned Chairman of the Industrial Court. So far as the demand in respect of Gazetted Holidays is concerned, there is no evidence on the record on behalf of the Union to establish that in similar companies the daily‑rat=d workmen are entitled for wages for Gazetted Holidays. The evidence produced by the Union relates to monthly‑paid workmen. The authorities relied upon by Mr. Ziaullah Khan lay down that daily‑rated workmen are entitled to wages for Sundays. For these reasons, I would modify the award given by the learned Chairman of the Industrial Court and hold that the daily‑rated workmen are entitled to wages for Sundays only and not the wages for Gazetted Holidays in the circumstances of the present case.

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