1988 PLP 656 (PLC)

2. The facts leading toward the dispute divulge out from the relationship of the parties as employer and employees. Ghulam Hassan etc. work under the appellant in water supply branch meant for public use at large. The respondents' contention is that the establishment containing them is covered by the laws applicable to the factories. The said laws make room for them to avail weekly, festival and other official holidays. In case it is not possible to allow them to avail these holidays, the respondents are entitled to claim compensation in terms of money, in lieu thereof. The appellant has denied them both. Considering that encashment is the appropriate remedy for them, in the given situation, the respondents took the appellant before the Authority, D.G. Khan, for it under section 15 of the Payment of Wages Act, 1936. Their claim pertained to the period from January 1983 to October 1985.

3. To meet this demand before the Authority, the appellant stated that the disputed holidays have been duly availed by the respondents. After availing them, the respondents have no locus standi to move the Court.

4. After listening to the parties in accordance with law, the Authority came to the conclusion that the respondents claim is justified as such it passed the decision in their favour to that effect. The findings of the Authority have now been assailed in this Court by the Chairman, Municipal Committee, D.G.Khan, both on facts as well as law. According to him, the Authority failed to understand the evidence and interpret the law properly. Its conclusion is quite mistaken therefore, this Court should intervene with a view to set it aside.

5. On my part, for the sake of decision, I have gone through the record of the Authority and heard the arguments advanced by both the sides. Keeping in view the whole set up of the case, my observation is that the appellant has got a case to win. The respondents moved their case within the grip of the laws applicable to the factories. I am fully in agreement with that. The said law unfortunately itself goes against them. The water supply branch being run by the appellant falls within the definition of public utility service, given by section 2(xx) of the Industrial Relations Ordinance, 1969. The public utility service has exclusively been dealt with by Rule 131 of the Punjab Factories Rules, 1978. It says: ‑ Rule 131 (I) "In public utility services as mentioned in the Schedule of the Industrial Relations Ordinance; 1969, provisions of section 49(i) of the Act regarding festival holidays shall apply to only those workers who are granted this facility by the Manager through a notice displayed on the Notice Board prior to such holiday. All other workers shall attend to their normal duties. In such public utility services, workers may be paid at twice rata of ordinary pay for work performed on festival holiday or one day additional compensatory holiday with fill pay and substituted holiday in accordance with the provisions of section 35. (ii) The above provision shall also apply to all the factories if the workers want encashment instead of compensatory leave. (iii) The Manager shall allow non‑Muslim workers intending to enjoy their festival holidays to adjust the same against the festival holidays declared under section 49(I) for others." As it is apparent from the perusal of this Rule, it is silent for encashment of holidays other than festival holidays. So far as encashment for festival holidays is concerned, that has been left to the discretion of the management because it uses the words 'may' for the grant of facility of encashment. This factum finds further support from the choice given to the management. It may allow encashment or one day additional compensatory holiday with full pay and substituted holiday. This discretion has not been exercised in favour of the respondents. In the absence of the same, they cannot choose the present remedy.

6. Although the public utility services have been dealt with separately yet for the respondents' satisfaction, I have gone through the other provisions of main law in this connection, i.e. Factories Act, 1934. Nowhere it provides for encashment for the work done on any of the holidays.

7. The respondents have referred to the provisions of section 47 of the Factories Act, 1934. According to them, the work done by them on holidays is to be considered overtime. As overtime, they can claim its wages. This view of the respondents is equally not plausible for three reasons. Firstly, in the light of Rule 131, referred to above, they cannot exercise discretion for encashment. It is the management which has the right to exercise it. Unless they get it determined from the management, they cannot bring it within the provisions of section

47. Secondly, consideration of their case under section 47 shall make them entitled to the disputed holidays. It shall, amount to declaration of right in their favour which shall be firstly, I against the provisions of Rule 131, and, secondly, against the provisions of the payment of Wages Act, 1936 as it has no provision for declaration and thirdly, the respondents claim is not for overtime. They, in the said manner, cannot set up a new case.

8. With this view of the matter, the appeal succeeds which is as such hereby accepted as prayed for. M.Y.H. /311/Lb.P Appeal allowed.