P L D 1962 (W (PLP)

WAHIDUDDIN ARMED, J.‑This second appeal is directed against the judgment of Mr. Feroze Nana Ghulamally, the then District Judge, Karachi, in Civil Appeal No. 26 of 1959 dated 16th April 1959, dismissing the appeal and upholding the decree for Rs. 2,855‑3‑5 granted by Mr. S. M. Abdul Aziz Jafri, the then learned Sub‑Judge, First Class, Karachi,, In Suit No. 1157 of 1958. Shortly stated, the facts leading to this appeal are that the respondent was employed by the appellants as a clerk in the Clearing & Forwarding Branch of the Hyderabad Relief and Rehabilitation Trust, Karachi, on 1st July 1952, on a monthly pay of Rs.

125. On 1st January 1955 he was promoted to a post of in‑charge of the branch on a basic pay of Rs. 150‑10‑200 with conveyance and duty allowances: Rs. 40 and Rs. 30 res pectively per month. The appellants failed to pay the salary dues of the respondent and on 31st July 1958 the respondent filed Suit No. 1157 of 1958, for the recovery of Rs. 2,855‑3‑5 In the Court of the Subordinate Judge, First Class, Karachi, for arrears of salary and other remunerations. The suit was resisted by the appellants, amongst others, on the ground that the jurisdiction of the Civil Court was barred under section 22 (d) of the Payment of Wages Act, 1936. It was urged that the salary of the res pondent was only Rs. 150 and as he was employed in a factory the suit was not maintainable in the Civil Courts. Both the learned Subordinate Courts have decided this question against the appellants. Mr. Ibadat Yar Khan, the learned counsel for the appellants, has attacked the judgments of the Courts below on the ground that the salary of the respondent was Rs. 150 per month and as he was employed in the factory of the appellants' trust, his case is covered by the Payment of Wages Act, 1936 and the suit was not maintainable under section 22 (d) of the said enactment. After hearing the learned counsel for the parties, we find no force in this contention. Admittedly the respondent was not only getting a basic salary of Rs. 150 but was also getting Rs. 40 as conveyance allowance and Rs. 30 as duty allowance per month. Thus the total remuneration was Rs. 220 per month, and his case, in view of the provisions of section 1 (6) of the Payment of Wages Act, 1936, is not covered by the said enactment. The learned counsel for the appellants, however, argued that the payment of Rs. 40 towards conveyance allowance and Rs. 30 as duty allowance are not wages within the meaning of section 2 (vi) of the said enactment. The definition of "wages" in this subsection means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, be fulfilled, be payable. It is reproduced below :‑ "`Wages' means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable, whether conditionally upon the regular attendance, good work or conduct or other behaviour of the person employed, or otherwise, to a person employed in respect of his employ ment or of work done in such employment, and includes any bonus or other additional remuneration of the nature aforesaid which would be so payable and any sum payable to such person by reason of the termination of his employment, but does not include‑ (a) the value of any house, accommodation, supply of light, water, medical attendance or other amenity, or of any service excluded by general or special order of the Provincial Government ; (b) any contribution paid by the employer to any pension fund or provident fund ; (c) any travelling allowance or the value of any travelling concession ; (d) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment ; or (e) any gratuity payable on discharge." There is no doubt that the payment of Rs. 40 as conveyance allowance and Rs. 30 as duty allowance is a definite sum, and was payable every month to the respondent in case he fulfilled the conditions of his service. Mr. Ibadat Yar Khan vehemently argued that these allowances are in the nature of potential wages and being duty allowance and travelling concession are excluded from the definition of "Wages" in section 2 (vi) (c). But the learned counsel had to admit that the payment of these amounts did not depend on performing a special duty or using the conveyance, and under the terms of the contract was payable monthly on the performance of ordinary duties. Moreover, the idea of travelling allowance has absolutely no connection with the conveyance allowance. Conveyance allowance is allowed to an employee by an employer in respect of conveyance used by the employee within the area of the city in which the office of the employer is situated. On the other hand, travelling allowance is always connected with some sort of travelling outside the station where the office of the employer or the factory of the employer is situated. It is therefore, quite plain that the amount paid towards conveyance allowance cannot be considered to be travelling allowance and is not excluded from the definition of "wages". A part from this, even if the contention of the learned counsel for the appellants is accepted that the payment of Rs. 40 as conveyance allowance and Rs. 30 as duty allowance is not wages within the above mentioned definition given in the said enactment, there is overwhelming evidence on the record to show that the respondent at the relevant time was not employed in any factory of the appellants' trust. He was working at their office on Lawrence Road and was in‑charge of the Clearing and Forwarding Branch of the said Trust. The evidence of P. W. 2, Capt. Riazul Haq and D. W. 1, Mujibuddin, is very clear on this point. Both of them stated that the respondent had nothing to do with the process of manufacture in the four factories belonging to the Trust. On the other hand, they stated that he was merely a clearing and forwarding officer‑in‑charge of material on behalf of the said Trust. It is, therefore, obvious that the respondent was not employed in any factory or in any industrial establishment and therefore his case is not at all covered by the Payment of Wages Act of 1936. In our opinion, the view of both the learned subordinate Courts on the question raised before us is absolutely correct and no exception can be taken to it. Mr. Ibadat Yar Khan has urged no other point before us. Accordingly we find no force in this appeal and it is dismissed with costs. S. B. Appeal dismissed.