MEHRAN SUGAR MILLS MAZDOOR UNION, TANDO ALLAHYAR Versus MEHRAN SUGAR MILLS LIMITED, TANDO ALLAHYAR
DECISION
1. This appeal against the award given by the Labour Court No. VI at Hyderabad, succinctly stated has arisen in the following circumstances.
2. On 31‑3‑1991 the Mazdoor Union, who are the appellants before me now, had served on the respondents a Notice under section 26(1) of the I.R.O., accompanied by a Charter of Demands. The Strike Notice had followed on 9‑4‑1991. The respondents also had given a Notice under section 26(1‑A) on 31‑3‑1991 and followed it up by a Notice of Lock‑out under section 56(3), I.R.O. on 10‑4‑1991. A settlement had been arrived at between the parties in regard to the Charter of Demands presented by the appellant Union on the 22nd of August, 1991 which was to be effective from 1‑4‑1991 for a period of years. However before this had happened these respondents had presented an application under section 32(1‑A), I.R.O. for the adjudication of their demands before the Labour Court No. VI at Hyderabad. The demands raised by them are as follows: ‑‑
2. "Mehran has switched over to the Defection Remolt Process from double carbonation double sulphitation process.
3. Thus, some of the process such as Filter Press, Lime Kiln, Carbonation etc. have been removed, workers of these stations are still continuing in services.
4. The present process requires the work force of about 1000 workers. Other sugar mill of larger capacity are having the work force in the range of 700 to 1000.
(1) Thus, workers who have become surplus now requires to be retrenched.
(2) From now onwards all workers and supervisory staff will only be entitled to various leaves as per the existing labour laws.
5. (3)Only genuine cases of leave will be entertained during the season.
(4) The office‑bearers of the union should get approval of leave in advance if they have to attend their matters concerning union affairs. No TA/DA would be payable to Union Office‑Bearers for proceeding on Union work.
(5) No bonus will be paid to the workers who remain absent or avail leave. Bonuses will be payable to the workers according to their participation in production.
(6) The Union must ensure that they will not interfere with any type of recruitment in the factory.
(7) The Union must not interfere with transfers of workers from one section to other.
(8) The Union must ensure that they do not interfere in the matters of promotions of workers.
(9) The Union will not interfere with granting leave to the workers. This will be according to law and rule and as per company's policy.
(10) The Union should not interfere with the management taking disciplinary action against any worker.
(11) Promotion in the Company should be strictly on merit without interference of CBA. The management will be the sole judge in the matter of promotion.
(12) Due to negligence of workers, the company loses considerable amount in the shape of wastage of certain items such as cotton waste, oil and lubricants, electrodes, bulbs, nut bolts, washers, joint sheets, electrical material, insulation tapes etc. In future if any workers found causing wastage of material will be penalised.
(13) No workers should leave his place of work before the close of his duty timings. It is observed that workers leave their working places before first whistle and start gathering at the gate before duty hours finish.
(14) The management will not allow the CBA/Union to hold general body or any other meeting within the mills premises during or beyond working hours.
(15) The workers should keep plant and machines clean and well- maintained in order to avoid frequent breakdowns.
(16) The CBA should not interfere with the job assigned to the co‑'Lies in various houses of the factory.
(17) The management has exclusive right to determine when and where overtime work is required. The CBA/Union will refrain from interfering in this matter.
(18) Since the work council meetings are held as per schedule therefore CBA/Union should not bring the problems/grievances directly to the executives/officers of the mills. All such grievances/problems should only be discussed at works council meeting to avoid unnecessary waste of important time.
(19) To avoid unnecessary wastage of duty hours by the workers the timings of canteen will be regulated by the management.
(20) It is seen that Union office‑bearers and other members do not stay on their respective duty place and wasting official duty hours in gossip and other union activities, which is against the rules and decorum. Union should ensure that such bad practice is henceforth be stopped and everyone whether a member of union or not must perform their duty during usual duty hours. If Union's office‑bearers do not perform their duties honestly and diligently, how can a worker be expected to perform his duty properly. The management expect the office‑bearers of the union to set a good example for the whole work force.
(21) The agreement/award should be effective from the date of signing and remain operative for 3 years.
(22) During the period of the agreement/settlement/award the Union should refrain from raising any demand involving financial implications.
(23) The workers and staff members can be transferred from one post to another, from one place to other, as per requirements and necessity. The Union/workers should not interfere in the same.
(24) Attendance allowance will be payable on 100% presence daring the month.
(25) Those workers who have been provided uniforms and do not wear will not be entitled for uniform in future.
(26) Annual leave should only be availed during the off‑season as per management's policy.
(27) In case of an accident, the concerned worker will only be entitled to claim under the Workmen's Compensation Act. Any other benefit shall be deemed as withdrawn.
(28) The workers loan will be granted to individual workers based on maximum two months' salary. The loan will be recovered alongwith existing bank markup rate.
(29) Bonus will be paid as per law and on company's earnings. No ex gratia shall be allowed.
(30) Since the sugarcane price and cost of other inputs have gone up considerably, therefore, the price of sugar, now onwards, supplied to the workers will be charged at the rate of Rs.10 per Kg."
3. The demands were resisted by the Union. Inam Khan 13angash the General Manager was examined on behalf of the managment and Ashiq Hussain the General Secretary and Muhammad Saleem the President appeared on behalf of the Union. It might as well be mentioned that one Abdul Aziz Memon had filed an affidavit on behalf of the management, but as he was not available for cross‑examination, the, same has got no evidentiary value and has to be excluded from consideration.
4. The Labour Court for the reasons given by it rejected the demands Nos. 3, 22 and 27 and allowed the others: some of them with certain modification.
5. Long draw arguments were raised before me whether the application under section 32(1‑A) was at all competent, when the Industrial Dispute raised by the Union, which was earlier in time was still under conciliation. Reference was made to section 44, I.R.O. and some authorities. However, in the light of the view I have taken, and also looking to the dictum that a Court prefers merit to technical approach as observed in PLD 1989 Lah. 318. and 1988 P1, have chosen to examine the merits of the demands themselves.
6. DEMAND NO. 1:
7. It is stated that the respondents have switched over from double carbonation, double sulphitation process to Defection Remolt Process and as a result of this some 200 workers in the Filter Press, the lime kiln, and other sections have become surplus and have got to be retrenched.
8. If the respondents were of the considered view that they had some extra labour on their hands, it was not necessary to raise a dispute about it, because they could resort to the provisions made in Standing Order 12 of the Standing Orders Ordinance, but with due fidelity to law. If any of the workers felt aggrieved it was open to him or them to seek the redress of his or their grievances under the law. Even the witnesses of the appellant did not join issues about it, as they could not. The impugned award by the Labour Court under the circumstances would be neither here nor there as the rights of the respondents are very much there in the Statute Book. The respondents were not in need of any blessings from the Courts on that score. The demand is therefore disallowed.
9. DEMAND NO. 2:
10. The next demand is also without any substance. It appears that the management under various settlements had granted certain leaves to their workers apart from the public holidays as under the Factories Act. The Settlement arrived at by the parties in August 1991 itself expressly mentions, that the terms of the earlier settlements will remain binding on the parties. It is not possible to wriggle out of it. Otherwise, too, there is nothing on the record to show that these are not given to the workers of other comparable concerns. The order therefore allowing the demand was hardly justified, and stands disallowed.
11. DEMAND NO. 4:
12. As regards this demand, the procedure for leave has been provided in clause 8(2) of the Standing Orders Ordinance. The demand has been put in very vague terms but the order of the Labour Court has clearly defined the limit to which the TA. and DA. can be claimed by the office‑bearers of the Union and I agree with the observations of the Labour Court in that.
13. DEMAND NO.5
14. The demand has been couched m very vague terms. It might as well mean that even one day's absence will disentitle the worker to claim the bonus. Patently it militates with clause 10(c) of the Standing Orders Ordinance, according to which every workman who has been in employment is that year for a continuous period of not less than 90 days will be entitled to it.
6. Inam Bangash the only witness produced on behalf of the respondent has not clearly stated as to what are the other bonuses which are being given by the mill. Unfortunately the management has been long on demands and short on substance. Their anxiety to extract the maximum from the workmen is understandable, but such a Dracanian approach is simply insupportable and certainly the witness has not taken us into confidence as to in which particular establishment, such a precedent is to be found. And if it is not to be found in any of the more than a dozen sugar Mills in the Region, there is scarcely any occasion for such an approach here. Otherwise too, assuming that there is any other bonus it would be paid by the respondent, as looking to the terms of the settlement arrived at between the parties in 1991 it cannot be touched in the presence of section 19 of the I.R.O. The demand is therefore disallowed.
15. DEMANDS NOS, 6, 7, 8, 9, 10, 11, 16 and 23:
16. The demands are:
(a) That the union must ensure that they will not interfere with the recruitment;
(b) that the union would not interfere with the transfer of workers from one section to the other and/or;
(c) the promotion of workers will be considered only on merit;
(d) that the CBA will not interfere with the job assigned to the coolies e.g. and that the workers and staff members can be transferred from one post to another and from one place to another.
7. There can be no cavil with the proposition that the running of the establishment and the administration work in general, is the prerogative of the Management and will break no interference from any quarters including the CBA. It is however to be seen that the trade unions are creatures under the law with the avowed purpose of espousing the cause of the workers and create harmony between the employers and employees of the establishments. The functioning of the Collective Bargaining Agent need not tarry us as the same are well‑known.
8. Apart from them there are also shop stewards to act as a link between labour and establishment as envisaged under section 23‑A of the I.R.O. Subsection (5) of section 23‑A reads as under: ‑‑
17. "(5) The Shop Steward shall act as a link between the workers and the employer, assist in the improvement of arrangements for the physical working conditions and production work in the shop, section or department for which he is elected and help workers in the settlement of their problems either connected with work or with any such individual grievance of a workman as is referred to in subsection (1) of section 25‑A."
9. Under section 23‑B, I.R.O. there is also to be Workers Participation in Management, in every Factory where more than 50 persons are employed, with a representation of 50% and they are to participate in the management of the Factory excluding financial, commercial and policy matters.
18. Subsection (6) thereof reads as under:‑‑
(6) The management shall not take any decision in the following matters without the advice in writing of the workers' representatives, namely:
(i) framing of service rules and policy about promotion and discipline of workers;
(ii) changing physical working conditions in the factory;
(iii) in‑service training of workers
(v) regulation of daily working hours and breaks
(vi) preparation of leave schedule; and
(vii) matters relating to the order and conduct of workers within the factory."
10. Then under subsection (7) the workers' representatives may on their own initiative, give advice in writing concerning matters specified in subsection (6) and if the same is rejected the same has to be taken up by the Collective Barganing Agent in the Work Council for bilateral negotiations.
11. There is also a Joint Management Board under section 25‑C, I.R.O. in which the workers participation has to be to the extent of 50%. The said Management Board, as to be found in subsection (3) thereof shall look after the following matters, namely: ‑‑
(a) Improvement in production, productivity and efficiency;
(b) fixation of job and piece‑rates;
(c) planned regrouping or transfer of the workers;
(d) laying down the principles of remuneration and introduction of new remuneration methods; and
(e) provision of minimum facilities for such of the workers employed through contractors as are not covered by the laws relating to welfare of workers.
19. 11‑A. These forums therefore have been created under the law and to ask in a bland way that they maintain total indifference about the affairs of these workers will be overreaching the mark. However, in matters of discipline administration and of commercial or financial transaction, certainly it is not open to the workmen or their representatives to interfere. They do not come in the picture at all, and if the workers or their representative intermediate in matters of recruitment, transfer, promotion of the workers, the job assignment of the coolies etc. the management can legitimately give them a short shift and put them at their proper place. For this reason they do not need a certificate from the Courts, as authority vests with them, and they must know how to exercise it. It will be nothing more than an exercise in futility. Accordingly the demands are disallowed.
20. DEMAND NO. 12:
21. No particulars have been provided as to how much were the losses and as to what should be done to eliminate the alleged losses. However, if wilful loss can be attributed to a worker, all that need the said is that it should be open to the management if so advised to proceed against him or them in accordance with law. This is what the Labour Court had also observed and I agree to this observation.
22. DEMAND NO. 13:
23. The demand is that no worker should leave his place of work, ahead of working hours. Again there is hardly any evidence, but assuming such is the position, it will be open to the management to make themselves felt by proceeding against them. Even if the demand is answered in the affirmative as canvassed, this will not absolve the respondents from drawing up proper proceedings afresh, in case there is a breach of the order. The demand in substance is nothing more than a cry of despair reflecting the impotence of the management. I will therefore disallow it.
24. DEMAND NO. 14:
25. Inam Bangash has not chosen to say a word in his affidavit that any meetings were being held within the factory premises during the working hours. All that is stated is that he reiterated the contents of the petition. There is hardly any material in that regard in the petition either, and nothing worth the same was attempted in the cross‑examination of the union's witnesses either. Be that as it may, I agree with the findings of the Labour Court that there should be no meetings of the union during the working ‑hours for what would mean the cessation of work.
26. DEMAND NO. 15:
27. The demand as raised, is rather amusing. It is not only for the workers to keep the machine clean, it is essentially for the management to keep them in good repair. I am afraid they were not properly advised to have come out with this demand and the Labour Court has rightly observed that "it is not a point to be decided in an Industrial dispute".
28. DEMAND NO. 17:
29. It appears that the management is intent on exacting work from the workers without taking care of the various provisions of the Factories Act and the Factory Rules. The working hours have been regulated in sections 34, 35, 36 and 37 of the Factories Act. A worker cannot be compelled to work for more than 8 hours in any day or 50 hours in any week. If the work goes beyond this period, the worker will be entitled to overtime dues provided he is 17 agreeable to work. If the management carries on its affairs in accordance with law, the worker will have no right of interference. I will answer accordingly.
30. DEMAND NO. 18:
31. The same demand albeit in general terms is to be found earlier. All that need be said in regard to it is that if pestered by a workman by any sort of representation against the scheme of law, it is for the Management to discourage such tendencies and it does not need any affirmation from the Courts to say that they have got the power to do so.
32. DEMAND N0.19:
33. The Canteens are provided essentially to provide meals and tea and the management itself is to be blamed for not having regulated the hours earlier. I fail to understand, as to why they have come to the Court for something which lies within their very domain. The demand is disallowed.
34. DEMAND NO. 20:
35. There are more averments that Workmen had been gossiping or wasting time during the working hours of the Factory. It is a pity that the management has not been able to cope with the situation which they are complaining about. It is for them, to make themselves felt and take disciplinary action if a situation so demands, and not for the Court to make any observations in that regard. The demand is misconceived and overruled.
36. DEMAND NO. 21:
37. The duration of the settlement has been agreed upon in the settlement, and looking to the scheme of section 19 of the IRO nothing can be done about it.
38. DEMAND NO. 24:
39. The forthright statement of Ashiq Ali, that a worker will not be entitled to attendance allowance for the month in which he remained absent for more than one day, is extremely reasonable and should be acted upon. The finding of the Court below i5 modified to that extent.
40. DEMAND NO. 25:
41. It was conceded by the respondent that the workers who were not in the habit of putting on uniforms, should not be provided with the same. That would conclude the matter.
42. DEMAND NO. 26:
43. In view of section 49(1) of the Factory Act no restriction can be placed on the right of the worker's task for his annual leave as deemed fit by him. Otherwise too the worker has to look to his own conveniences and circumstances. The demand is therefore overruled.
44. DEMAND NO. 28:
45. This is a matter entirely within the discretion of the management and does not require any comment by the Courts.
46. DEMAND NO. 29:
47. The concept of demand of bonus unless given under law is based on the earnings of a mill, a factory, or a company. It is said that no ex gratis bonus shall be allowed. It has not been stated specifically whether any ex gratia payments are being made to the workers and if they are being paid. Section 19 of the IRO will come in the way of the management. They cannot be allowed to wriggle out that way. Finding accordingly.
48. DEMAND N0.30:
49. The material on the record is rather slender. However, if there is a settlement in regard to the supply of sugar to the workmen at a particular rate, it cannot be interfered with during the continuance of the settlement period. Otherwise too it is a matter where the management can exercise its own discretion and nothing need be said from here.
50. For the reasons given above the award of the Labour Court is set aside and modified to the extent mentioned above.
51. H.B.T./2225/Lb.S
52. Order accordingly.