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Application No. 1 of 1983, decided on 19th November, 1985.

‑‑‑Ss. 34, 50, 54 & 55‑‑Settlement, implementation of‑‑Settlement clauses not disputed‑‑C.B.A. seeking implementation‑‑Application to Labour Court by C.B.A. under S. 34, held, not maintainable and remedy available to individual workers if affected under S. 25‑A, subject to limitation or for penal action, Ss. 54 & 55.

1984 P L C 1359 ref.

Shamsuddin Khalid Ahmed for Applicant.

Iqbal Afridi for Respondent.

This is an application under section 34 of the Industrial Relations Ordinance, 1969, in connection with the demands made by the Pakistan Machine Tool Factory Labour Union, against the Pakistan Machine Toll Factory, as an industrial dispute.

2. The facts of this case, are as under:

3. The petitioner is the registered trade union of the workmen of Pakistan Machine Tool Factory, Karachi and is also the Collective Bargaining Agent.

4. The respondent is a factory and the limited concern, under the heavy engineering machine too: corporation, with 2,300 workers on its pay roll.

5. Both the management and the union, executed the document of settlement on 23‑11‑1982, to have effect from 23‑3‑1982, for a period of two years, and it was a mutual agreement.,

6. It appeared that the respondent did not comply with the terms and conditions of the settlement and now the union has come to this Court for seeking award.

7. With regard to demand No. of the charter of demands, it was agreed,' that, the management shall deduct Rs.2 per month, from the wages of every worker for the housing fund scheme, and the management shall contribute an equal amount in the fund. But the management has taken no steps.

8. The reply of the management is, that, the respondent is not against the implementation of the agreement, toward the deduction of Rs.2 per month, from the wages of every worker, in the Housing Fund Scheme, but section 7 of the Payment of Wages Act, creates legal bar. Even otherwise, sufficient number of workers have opposed such deduction of the wages and, therefore, the settlement cannot supersede the prevailing law.

9. In respect of the demand No. 8,' the settlement was for the payment of overtime in accordance with law. According to the Union, the overtime is paid on the basic pay plus cost of living allowance of Rs.110, when, under the law, wages for the purposes of overtime, includes otter allowances. The management has not paid the arrears of overtime, although the arrears of pay have been paid after adjustment of the incre9se under the Act.

19. The reply of the management is, that., the applicant union is put to strict proof "oat the respondent has not acted or violated the aforesaid provisions of the settlement, in respect of the overtime.

11. Union has preferred the demand, that, it was agreed to the proposal of two days' off in a week, the matter will be Se considered, after mutual consultation of the management the anon, but the management has not held any deliberation on this point.

12. The reply of the management is, that, the allegation is false. Respondent has discussed the issue of two days' weekly off, with the applicant C.B.A. in various meetings and the applicants had agreed, to bring workable proposal without reducing 45 hours work in a week. The union has failed to submit any proposal in this respect.

13. Union has preferred the demand, that, it was agreed, that, the workers arriving between 0741 to 0815, shall be considered as late comers, but the implication of the same is not given effective, since 23‑3‑1982.

1 14. The reply of the management is, that, it was practice in the respondent factory, that, except in certain matters, the settlement was prospective and retrospective in effect. Since the cases of previous late arrivals, have been adjusted against the earned leave at the close of the calendar year 1982, and the payment has been made accordingly, and, therefore, it is impossible to reopen the issue.

15. The union has preferred the demand, that, it was agreed that, Provident Fund and Welfare Fund, shall be audited by the chartered accountant, but, it has not been complied with, so far.

16. The reply of the management is, that, the accounts of the G.P. Fund and Welfare fund, are being audited by the chartered accountant, and, as soon as it is finalised, the applicant shall be informed.

17. The Union has preferred the demand, that, the management, shall stop deducting Rs.3 per month, per worker, against the Masjid Fund, and shall start deducting the same amount from the salary of every worker, as the Benevolent Fund, and shall contribute the equal amount in the Fund.

18. The reply of the management is, that, in pursuance of the settlement, the management stopped deducting donation, but found that it is unable to implement the agreement in respect of the deduction of Rs.3 per month, per worker, on account of legal bar, under section 7 of the Payment of Wages Act.

19. The Union has preferred the demand, that, bonus was to be paid, according to law, as per settlement's clause (13), but it was paid on 30‑6‑1982, on the basis of salaries, as due on 30‑6‑1982.

20. The reply of the management is, that, under this agreement, it was agreed, that, the respondent shall pay to his permanent employees, from Grade 1 to 9, for the financial year 1981‑82, equal to one month's wages calculated on the basis of basic pay, cost of living, dearness and conveyance allowances and Karachi Compensatory Allowance and House Rent Allowance, as payable on 30‑6‑1982. According to the management, the said agreement also carried the provision that the above payment shall be in full and final discharge, of the entire liabilities of the company, in respect of the bonus, including ex gratia, and it was also agreed that, the increase in the wages, due to any subsequent agreement, shall have no retrospective effect.

21. Union has preferred the demand, that, it was agreed about the promotion policy, that, the existing principles, would be followed, by which 500 workers become eligible, who applied to the union, for getting their right, as agreed in January, 1983, but the management was not following that principles.

22. The reply of the management is, that, the promotion of the employees exclusively the right of the management and the same is determined on the basis of seniority, fitness and availability of courses. Even then the respondent, in pursuance of the settlement, dated 22‑5‑1980, followed the promotion policy and since July, 1981, 1,300 workers have been promoted. Under the agreement, it was agreed, that, the career planning of diploma‑holders and degree‑holders, would have been followed according to the promotion policy.

23. Union has preferred the demand, that, C.B.A. shall be consulted in respect of the promotion and the assignment of degree‑holders and diploma‑holders, but the management is not listening to them.

24. The reply of the management is, that, under the peace agreement, it was agreed, that, planning of diploma‑holders and degree‑holders, will be followed according to the promotion policy.

25. Union has preferred the demand, that, it was agreed, that, retiring room and toilets, shall be provided to the drivers, but it has not been provided.

26. The reply of the management is, that, retiring rooms are under construction.

27. Union has preferred the demand, that, it was agreed to reduce the tuition fee of children from Rs.25 to Rs.20 per month, as per clause (24) of the settlement, but it has been given by the management, from December, 1982, instead of agreed date of 23‑3‑1982.

28. The reply of the management is, that, reduction of tuition fee, as retrospective effect, is not logical case. The fee collected for one student is spent on its various expenditures and, therefore, it is not possible to refund any part of the spent amount, as shown by the union. The fact is, that, the settlement was made, only in respect of the students, studying in KG‑I, and KG‑11, classes.

29. The union has preferred demand, that, new gate should be open in the boundary wall of the colony, near the Labour Square, but, it has not been done.

30. The reply of the management is, that, the non‑opening of the new gate in the boundary wall of P.M.T.F. Colony, near Labour Square, is due to opposition of a number of residents, living therein, as they have expressed their anxiety icy respect of the security, if the gate is opened.

31. Union has preferred the demand, that, industrial home shall be established in the colony, but it has not been done.

32. The reply of the management is, that, the respondent has established the industrial home in April, 1979, but, due to lack of interest, on the part of the residents, it has been closed, and, which is re‑established again, by the management.

33. Union has preferred the demand, that, the telephone authority shall be contacted, for the telephone booth, in the colony, but nothing has been done.

34. The reply of the management is, that, the respondents have already approached the telephone authority, for the installation of a Public Call Office, for the convenience of the residents and also, taking the matter with the Telephone Authority.

35. Union has preferred demand, that, the steps be taken to prevent the accidents and, therefore, gloves, goggles shall be provided to the workers.

36. The reply of the management is, that, the respondent has taken every care, in preventing accidents, by providing safety equipments, like goggles, gloves, and special shoes, but it has been discovered, that, most of workers have not obeyed the directions, and they contribute to their own injuries.

37. Union has preferred the demand, that, provision be made towards the security and safety of the workers, who performs the duty at night time.

38. The reply of the management is, that, steps have been taken in respect of safety of the workers.

39. Union has preferred demand, that, the prevailing amenities, and allowances, awarded to the workers, shall not be discontinued, but, this particular clause is being violated.

40. The reply of the management is, that, the union has failed to disclose the specific clause or the previous agreement, which have been violated. According to the respondent, the respondents are paying Milk Allowance to 146 workers, who are working on the jobs of difficult nature, and this facility is allowed on scrutiny and recommendation of the Board, headed by doctors. As regards the attendance allowance, it is discontinued by consent of the C.B.A., through clause (7) of the memo of the Settlement, dated 22‑5‑1980.

41. Pakistan Machine Tool Factory Labour Union, has filed application under section 34, of I.R.O., 1969, for the enforcement of the rights, guaranteed under the settlement, made on 23‑11‑1982, which was to remain in force for the period of two years, from 23‑3‑1983.

42. The union has come to this Court with this grievance, that, the employer, Pakistan Machine Tool Factory, has not complied with the terms of the settlement and, therefore, the rights acquired under the settlement, be enforced through this petition.

43. Respondent has not denied the settlement, but contended, that, the respondent is not against the implementation of the agreement, but raised firstly, legal pretentions, whether the union can come under section 34, for the enforcement of the rights, if the same rights can be enforced by individual grievances under section 25‑A, I.R.O. Secondly, the settlement having expired its life, .the application is not coming in time, and is not maintainable.

44. Mr. Iqbal Faridi, representing the Pakistan Machine Tool Factory, has referred the recent Judgment of the Division Bench of the Hon'ble High Court, at the final stage of the arguments, to the notice of the Court, that, this Court has no jurisdiction. This is case of Karachi Pipe Mills Ltd, v. Sind Labour Appellate Tribunal 1984 PLC 1359.

45. There, the contention raised, was, that, under section 34 of the Ordinance, the Collective Bargaining Agent, is not entitled to appear for the enforcement of any right guaranteed or secured to any workman, by, or under any law, award or settlement, and the same rights are admittedly claimed under the provisions of Factories Act, and, therefore, could not be enforced by the C.B.A under the aforesaid provisions,

46. In this decision, it was also the contention of other side, that, under the provisions of section 34, C.B.A. applies for the enforcement of any right guaranteed or secured by, or under any law, award or settlement, which is in the nature of execution proceedings. His Lordship held, that, it was not in the nature of execution proceedings, and, further held, in para. (25), as under:‑

"So far as the decisions of the Tribunals, were concerned, some of them have laid down that the C.B.A. is entitled to support common cause of workman, but, not the powers of individual workman, and other Tribunals have laid down, that, the C.B.A. could even enforce the right of individual worker, under section 34 of the Ordinance. But, there is no warrant in law, for such. If, for the reasons, given in the decision of the various Tribunals, the C.B.A. could not enforce the right of individual workman, under any law, then, for the same reason, it could not under section 34 of the Ordinance, enforce the right, of the number of workmen."

47. The second question is, that, if the settlement is binding on, all the parties, to any industrial dispute, under section 39 of the Ordinance, then any contravention of any of the clauses, certainly, will be the penal offence, and the Labour Court has nothing further to interpret when the parties have entered into settlements, by mutual consent. If certain clauses of the settlement are subject to consultations or proposals, given to the management, and some are clear, whose violation has taken place, and the union desires the Court to give effect of such implementation, of all the clauses, in this application, under section 34, the question arises, whether in this petition under section 34, the Labour Court has the power, of interpretation, nothing more than those clauses, which are settled already, and only application is brought to enforce that right, the interpretation of the settlement is under section 50, that, in the case of uncertainty, the parties can refer them to the Hon'ble Tribunal, by invoking the jurisdiction under section 50, which is an independent provision under the I.R.O.

48. Third question is, whether, the settlement, if taken cognizance of, even under section 34, I.R.O., for the enforcement of such right, whether the settlement has expired for the enforcement of such rights, or its consequence is only the contravention, subject to the penal offence. It is provided in section 40, I.R.O., that, if the date is agreed upon by the party to the dispute, to which it relates, on suet date, if the date is not agreed upon, the date, of which the settlement is signed by the parties. Settlement shall be binding for such period as is agreed upon, by the parties. If no such period is agreed upon for the period of one year, from the date of signing of the Memorandum of Settlement, and shall be continued to .be binding on the parties after expiry of aforesaid period, unless after expiry of two months from the date, on which either party informs the other party, is writing, of his intention, to be, no longer .und down.

49. In this settlement, the date was agreed upon, of 23rd March 1982; to be effective date for the period of two years. If the period has expired and petition is filed in May, 1984, the settlement, obviously has expired, till new settlement is made for the enforcement of sue right. The cause of grievance arose from the date, when the cause action arose. In other words when the settlement was alive, and the union came for the enforcement.

50. In a case like this, in view of the Division Bench Ruling, I find that even they have no jurisdiction to come. In the decision cited, I once again refer:

"If, for the reasons, given in the decision of various Tribunals, the C.B.A. could not enforce the right of an individual workman, in any law, then, for the same reason, it could not, under section 34, enforce the right of number of workmen."

51. In this case, even certain clauses are in general to effect the number of workmen, yet this decision, as I understand, is in that context. There are certain clauses which are settled. The individual, if effected, could come under section 25‑A, subject to limitation, and some clauses, if uncertain, interpretation would have been sought in case of non‑compliance, and then file application, in proper forum.

52. As a fact of ineffective settlement now, the only remedy, in the Court's opinion, is under the provisions of I.R.O., under section 541E or 55.

53. Mr. Iqbal Faridi has referred: 1974 P L C 76; 1981 P L C (S.C.) 641 and 1981 P L C 4, and Mr. Khalid has also referred to: 1982 P L C 338; 1980 P L C 782; 1981 P L C 19; 1981 P L C 609; NLR 1978 Labour 637 and 1977 P L C 342.

54. Application is not maintainable under section 34 of the I.R.O. Order accordingly.

A.E.

Orders accordingly.

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