Find a Lawyer

Application No. 3 of 1984, decided on 29th March, 1986.

‑‑‑S. 32 (1‑A)‑‑industrial dispute‑‑Adjudication of demands‑‑Practice and procedure‑‑Non‑filing of affidavit by respondent employer‑‑Effect of‑‑Statement of claims filed by applicant union (C.B.A.)‑‑Employer contesting claims/demands but not filing affidavit with its reply statement‑‑Plea that in absence of affidavit reply statement had no value and statement of claims filed by C.B.A. should be presumed to have gone unchallenged, rejected‑‑Held, applicant had to succeed on strength and merits of its own case and not on weakness, if any, of respondent.

‑‑‑S. 32(1‑A)‑‑Industrial dispute‑‑Demands of financial implication‑ Adjudication of‑‑Onus, held, would be upon applicant Union raising such demands to prove their entitlement to demands of such financial implications‑‑Essential factors to be followed, would be extent of business, capital invested, profits made, standing and strength of labour force, presence or absence of reserve capital, dividend declared and prospects of future business, financial profits of the establishment vis‑a‑vis similar and comparable organisation doing same business‑‑Such factor would require evaluation on basis of evidence‑‑Applicant Union not adducing any evidence except that of one witness who had no personal experience or knowledge and his evidence amounting to merely heresay‑‑Charter of demand in circumstances, held, liable to be rejected‑‑Labour Court declining to discuss each and every demand for want of supporting evidence and lack of proof and dismissing application.

Saleem Raza, Representative for Applicant.

S.M. Yaqoob for Respondent.

This order will dispose of application under section 32 (1‑A) of I.R.O., 1969, which was originally filed by Messrs Plasticrafters Workers Union against the respondent. However, at the time of final arguments the present applicant namely Messrs Plasticrafters Mazdoor Union was substituted vide order, dated 9‑2‑1986 as this Union had succeeded in the ballot to act as C.B.A.

2. Briefly stated the facts of the case as disclosed by the applicant are as follows.

3. That on 18‑7‑1984 the applicant union served notice under section 26 (1) upon the respondent establishment with a charter of demands in respect of an industrial dispute likely to arise between the parties. This was followed by bilateral negotiations but without success. The applicant Union then again served a notice under section 26 (3) I.R.O., 1969 on or about 2nd of August, 1984. Thereafter, several conciliation meetings were held which ultimately terminated on 10‑11‑1984. The applicant prayed that the statement of claim in respect of the demand may be filed and award in terms of the said claim may be given.

3. The statement of claim submitted by the applicant Union stated that the respondent Company earned huge profits throughout in the past, therefore, the demands of the workers are reasonable in respect of Bonus, General increments, Grade, Attendance Allowance, Conveyance Allowance, Washing Allowance, Shift Allowance, Leave, Loan, Introduction of Provident Fund Scheme in the Factory, Construction of Mosque in the Factory, Recruitment of qualified workers, compensation for accident during service and burial expenses in case of death, sale of products at rates to the workers, construction of Bath Room and convenience. Providing permanent helper in Hand Molding Section, Uniforms, Introduction of Chowkidari system, regular timings of working hours and establishment of Canteen. 4. The case of the respondent in their reply statement is that no settlement could be reached on the demands of the applicant Union due to accute financial and other difficulties faced by the respondent. While replying to the claim of the applicant Union the respondents vehemently denied the alleged demand of the applicant Union. Their contention is that the entire demand deserves to be rejected. The respondent reiterated that the respondent is facing great financial crisis since 1982 which compelled the respondent to resort to lay off of its workers and employees as well as retrenchment of some of their executives staff. Moreover, the respondent also tried to impress upon the Union to defer their demands till the crisis was over but they did not listen to reason and the conciliation proceedings failed.

6. Mr. Ghulam Ali Gabol the General Secretary of the applicant Union filed his affidavit in evidence and he was cross‑examined. Mr. Nabi Ahmad who is also the President of Azad Friends s Company Employees Union filed his affidavit in evidence in support of the applicant Union and he was cross‑examined at length by the learned counsel for the respondent. The respondent led no evidence and prayed for reliance on the documents which had already come on the file of this Court.

6. I have perused the written arguments which the learned counsel/ representative appearing for the parties submitted on behalf of the parties instead of submitting oral arguments. I have also perused the case law and the evidence on record.

7. The sole point which requires determination in this case is:‑

Whether the applicants are entitled to the demands raised by them in their statement of claim

8. The present applicant namely Messrs Plasticrafters Mazdoor Union did not examine any witness after they were impleaded as applicant vide order, dated 9‑2‑1986. However, their predecessor Messrs Plasticrafters Workers Union who had actually filed the application examined two witnesses namely A.W.1 Ghulam Ali Gabol who was the General Secretary of the Workers Union and A.W.2 Nabi Ahmed who in his affidavit disclosed that he is the General Secretary of United Workers Federation of which the Plasticrafters Workers Union is affiliated. According to him he is also President of Azad Friends b Company Employees Union.

9. The respondents led no evidence and vide their statement, dated 21‑11‑1985 closed their side but witfi the permission of this Court they filed a copy of the balance sheet for the year 1984 (Exbt.R‑1) and gazette notification, dated 21‑7‑1984 (Exh. R‑2).

10. I have heard Mr. Saleem Raza, learned representative for the applicant and Mr. S.M. Yaqoob, Learned counsel for the respondent and have perused their written arguments.

11. Mr. Saleem Raza in his written arguments mainly contended that the respondents filed their reply statement and some documents but they have failed to file any affidavit, therefore, their reply statement and documents have no value and it should be presumed that the contents of the main application as well as statement of claim submitted A by the applicant have gone unchallenged. This argument has no force at all. Even otherwise the applicant has to succeed on the strength and merits of their own case and not on the weakness, if any, of the respondents. The applicants' witnesses were cross‑examined at length and their evidence has been challenged, therefore, it cannot be said that the applicants' claim has gone unchallenged. After the applicants closed their side the respondent felt vide their statement, dated 21‑i1‑1985 that there was no necessity for them to produce defence witness and the applicants also did not raise any objection to this, statement and thereafter the side of the respondent was closed, therefore, this point raised by the applicants have no substance.

12. Now coming to the actual merits of the claim. Mr. Saleem Raza in his arguments mainly relied on paras. 1 to 76 of the statement of claim he also alleged that the last settlement between the Union and the respondents expired on 30‑6‑1984 and the fresh demands were raised by the Union on 18‑7‑1984 but the same were not settled due to the adamant attitude of the respondents. This is to be examined in the light of principles enunciated by the superior Courts as well as in the light of evidence on record. Admittedly the onus was on the applicant Union which has raised the industrial dispute to prove that they were entitled to the demands as raised by them in their statement of claim. The essential factors which are required to be followed for resolving the industrial dispute of this kind are the extent of business, capital invested, profits made, standing and strength of labour force, presence or absence of reserve capital, dividend declared and proepects of future business, financial profits of the establishment, via‑a‑via, the similar and comparable organizations/ establishments doing the same business. These factors require evaluation on the basis of evidence led by the parties. As observed earlier the present applicant Union namely the Mazdoor Union has not led any evidence but has relied on the evidence adduced by its predecessor namely the Workers Union which had been C.B.A. since 1981. Its General Secretary, Mr. Ghulam All (A.W.1) deposed in cross‑examination that Mr. Nabi Ahmed will depose about the statement of claim of the Union, therefore, the main reliance of the applicant is on the testimony of Mr. Nabi Ahmed (A.W‑2). Regarding his status Mr. Nabi Ahmed stated as follows:‑

"For the past 10 years I am Office‑Bearer of the United Workers Federation and this is a General Federation not representing any specific industry but it represents various types of industries. The Federation is not registered under the I.R.O., and it is also not registered under any other law. At present I am not employed in any industry. I have never worked in any plastic industry. I have never worked in the respondents company."

He denied the suggestion that he had never visited the respondent factory for more than a month. According to him he visited the respondent factory from inside for about 20 or 25 times. He also stated that the statement of claim submitted by the Union was prepared at the instance of this witness but he said document was signed by the General Secretary Mr. Ghulam Ali (A.W‑1). In other words the statement of claim was prepared by Mr. Nabi Ahmed who was neither employed in the respondent establishment nor had ever served in any plastic industry. No where he had claimed that he ever held any meeting with the workers or the office‑bearers of the Union to find out the genuine demands of the workers on whose behalf he had prepared the statement of claim. Moreover, Mr. Nabi Ahmed in his cross‑examination repeatedly expressed his ignorance about the essential facts by saying. "I do not know, "It is not in my knowledge" and "I do not remember". I, therefore, find considerable force in the submission of the learned counsel for the respondent that Mr. Nabi Ahmed is a perpetual professional leader and he being a stranger and out side, had no knowledge about the respondent establishment or any other plastic industry. Therefore his evidence is hearsay and deserves no credit at all. In view of this conclusion, there is hardly any evidence left to be considered. The applicants were expected to produce their best evidence whether primary or secondary to substantiate their statement of claim which is a vital document but they have miscerably failed to do so. Therefore, on this conclusion their entire charter of demand is liable to be rejected. So far as the comparable institutions cited by the Union is concerned they have cited the names of Messrs S. Muhammad Din & Co., Buxlay Paints Limited, Pak Containers Ltd., and Azad 'Friends & Company Limited. It is essen tial that a comparable institution should be doing the same business which includes the extent and nature of business, capital invested, profit made, standing and strength of labour force, presence or absence of reserve capital, dividend declared and prospects of future business. These factors have not been proved directly or on behalf of the above mentioned establishments. However, Mr. Nabi Ahmed in his cross examination admitted as follows:‑

"It is correct to suggest that Messrs Azad Friends & Co. manufacture Fountain Pen of Plastic by the brand name of Eagle‑ 'Pak Tin Containers prepare Tin Containers'‑‑' Buxlay Paints manufacture Paint, Distemper and Varnish' .'S. Muhammad Din & Co. manufacture Alimunium tubes and Containers."

There is no denial of the fact that the respondents manufacture Water Cooler by the brand name of Rahmer but none of the four comparable concerns cited by the Union either manufacture' Water Coolers or they could be treated as Plastic industries comparable with the respondents. There is no explanation on record as to why the applicant Union did not cite any plastic industry manufacturing Water Coolers or disclosed the facilities etc which are available in those establishments. On this aspect Mr. Nabi Ahmed in his cross‑examination admitted as follows:‑

"Mr. Muhammad Bashir Maniar runs the plastic industry which produces Water Coolers.' 'There is also a Golden Industry which produces Water Cooler'. 'It is not in my knowledge that Water Coolers are also manufactured by the companies namely Olymia, Zam Zam, Ployvac, Kohinoor, Indus, Royal, Rahnuma."

Thus in the absence of cogent evidence on this point it is highly improper to give any benefits to the applicants on false analogies. Particularly when they have chosen not to come forward with essential factors of the actual plastic industries. At least Mr. Nabi Ahmed could have given the details of Golden Industry which is run by Mr. Muhammad Bashir Maniar. It is also unbelieveable that Mr. Nabi Ahmed who is the General Secretary of United Workers Federation which is General Federation on oath could say that it was not in his knowledge that Water Coolers are also manufactured by companies namely, Olympia, Zam Zam, Ployvac, Kohinoor, Indus, Royal, Rehnuma. This, "Not in my knowledge" type of evasive testimony simply reflects on the quality of evidence which Mr. Nabi Ahmed has chosen to give on behalf of the Union. Likewise Mr. Nabi Ahmed also deposed that it was not in his knowledge that Rs.35 lacs of export made by the respondent is blocked in Saudi Arabia or for that negotiations are going on at Government level. Rs.35 lacs is not a small amount and when a witness comes t depose facts regarding the financial position of any company he i expected to know this important aspect as well. Mr. Nabi Ahmed, howeve admitted that balance sheet is given to the Union every year and th balance sheet of the company for the year 1984 was given to th General Secretary which shows profit for the year 1984 is Rs.35,765 In view of this admitted position the workers are entitled to 15 of th bonus as profit bonus which comes to Rs.5,364.75 only and th respondent have never refused to distribute this amount as profit bonus to their workers who are entitled to receive the same. Standing Order 10 (c) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 provides for profit bonus and depends upon the profit of each year while the applicants have failed to justify their demand for more bonus as claimed by them.

12. In view of the above discussion there is no need to discus each and every demand for want of supporting evidence and lack proof. Thus, the application under section 32 (1‑A)., I . R .O. , 196 having no force is dismissed.

A.E. Application dismissed

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.