1990 PLP 433 (PLC)

This is an application under section 50 of the Industrial Relations Ordinance, 1969, filed by the applicants union, namely, Caltex Employees Union, Karachi, seeking an interpretation of clauses 9(c) and 45 of a settlement, executed on 10‑11‑1983, to be effective from 1‑1‑1983 for a period of 3 years.

2. It is the case of the applicant union that vide the settlement, it was agreed upon between the parties that the Cost of Living Allowance equal to Rs.35 would be payable since August, 1973 to those workers whose wages at the relevant time do not exceed Rs.700 and such benefits allowed for 3 years together were withdrawn by the respondent management on the plea that since the wages have exceeded the limit of Rs.700 the entitlement has also ceased to exist and so also the other payments under sub‑clauses (ii), (iii), (iv) and (v) respectively. It was also the case of the applicant union that the Cost of Living Allowance of Rs.35 being part and parcel of the wages/terms and conditions of service, could not be withdrawn, deducted and/or reduced to the disadvantage of the employees. It was also claimed by the applicant that in the case of one Arshad Mobin Ahmad, the benefit of Cost of Living had been withdrawn and as such when the C.B.A. Union was approached by him and the union had written a letter in this regard to the management on 4‑4‑1984, the respondent management, vide its letter, dated 5‑4‑1984 hence, the present application for interpretation under clause 45 of the said settlement, as a dispute/difference had arisen with regard to clause 9(c) of the settlement.

3. I have heard Mr. Latif Saghar, the learned Advocate for the applicant union and Mr. Muhammad Humayoon, the learned Advocate on behalf of the respondents management and have also very carefully perused the record, contents of the relevant clauses of the settlement, in question, and also the written arguments of both the parties. To arrive at a correct interpretation, I think it justifiable to reproduce below clauses 9(c) and 45 of the settlement, dated 10‑11‑1983:‑‑ "9(c) Statutory cost of living allowance.‑‑(i) Rs.35 per month strictly in accordance with clauses (a) and (b) of subsection (i) of section 3 of Employees Cost of Living (Relief) Act, 1973; (ii) The Cost of Living Allowance payable under subsection (2) of section 3 of Employees Cost of Living (Relief) Act, 1973 shall be paid to all workmen at the rate of 10% of the monthly wages subject to a minimum of Rs.50 per month and a maximum of Rs.150 per month; (iii) The Cost of Living Allowance equal to Rs.25 (Rupees twenty‑five) per month shall be payable to all workmen strictly in accordance with section 3 of Employees Cost of Living (Relief) Act, 1973; (iv) The Cost of Living Allowance equal to Rs.40 per month payable under section 3(4) of the Employees Cost of Living (Relief) Act, 1973 shall be paid to all workmen including workmen drawing wages exceeding Rs.1,500 per month; (v) The Cost of Living Allowance equal to Rs.40 (Rupees Forty only) per month payable under section 3(5) of the Employees Cost of Living (Relief) Act, 1973 shall be paid to all workmen whose wages do not exceed Rs. 1,500 per month strictly in accordance with the above provisions of the law:" Note.‑‑

1. The Cost of Living Allowance of Rs.25 and Rs.40 payable under sub‑clause C(iii & iv) above shall be combined and reflected against the existing title of Cost of Living Allowance on the pay roll.

2. The word "wages" for the purpose of statutory Cost of Living Allowance shall carry the same meaning as defined in subsection (e) of section 2 of Employees of Cost of Living (Relief) Act, 1973.

45. Interpretation of the agreement. ‑‑Any dispute or difference arising out of the construction or interpretation of any clause of this Agreement shall be referred to the Labour Appellate Tribunal or National Industrial Relations Commissions for final decision in accordance with the usual practice/procedure but this will be done only if the matter is not resolved by way of mutual discussion between the Union and the Company. Both parties will endeavour their utmost to settle such matters across the table." It was argued by Mr. Latif Saghar, the learned Advocate for the applicant union that Rs.35 allowed in 1973 was a part and parcel of all the subsequent settlements and after once having granted the benefits and after having allowed such benefits irrespective of the limit of entitlement al the appropriate time, it was not open to the respondent management to withdraw the said allowance and/or any part thereof. It was also the argument of the applicant union that the Cost of Living Allowance payable under the Act of 1973 was never paid under the Act, but, under the settlement and as such any exception, right of set‑off/adjustment, even if available to the employer stand forfeited when the allowances were granted and made payable through a validly bargained settlement. It was, therefore, contended by Mr. Latif Saghar the learned Advocate that Cost of Living Allowance being paid by the respondent establishment under the settlement and not under the law so the difficulty, created by the management, required interpretation to the effect that the management was not entitled to deduct any amount from the Cost of Living Allowance granted under subsection (1) of section 7 and thereafter was incorporated in the said settlement, by mutual agreement. It was pleaded by the applicant union that the deduction made by the management from the wages of the workers, whose wages exceeded Rs.700 was illegal and in violation of clause 9(c) of the said settlement. It was also submitted that in view of the contents of clause 45 of the said settlement, it was not correct to say by the respondent management that the establishment was covered by the provisions of Act of 1952. I am not in agreement with these contentions of Mr. Latif Saghar, the learned Advocate for the applicant‑union. `

4. On the other hand, it was very vehemently argued by Mr. Muhammad Humayoon, the learned Advocate for the respondents establishment that the applicant union had illegally filed an application under section 50 of the Industrial Relations Ordinance, 1969, to interpret the "directions" passed by the Specified Authority, namely, National Industrial Relations Commission, under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 and that as the settlement, in question, was not executed under the provisions of I.R.O., therefore, this Tribunal had no jurisdiction in the matter. In this respect, Mr. Muhammad Humayoon, the learned Advocate for the respondent management had very efficiently referred to clause 46 of the settlement, in question, and has argued that by virtue of the contents of this clause, as had been mutually agreed upon by the C.B.A. Union as well as the respondent management, it is a fact on record that the said settlement was not executed under the provisions of Industrial Relations Ordinance, but, as the provisions of Pakistan Essential Services (Maintenance) Act, 1952, were applicable to all employments of the management, therefore, it was submitted to the Chairman, National Industrial Relations Commission, Government of Pakistan, Islamabad for the issuance of necessary "Directions" in terms of the settlement, being the competent authority under Act of 1952, hence, the present application under section 50, Industrial Relations Ordinance, 1969 filed by the applicant union before this Tribunal was not legally maintainable. This clause 46 reads, as under:‑‑ "

46. Essential service.‑‑It is agreed that since the Pakistan Essential Services (Maintenance) Act, 1952 is applicable to all employments in connection with the storage, distribution or marketing of petroleum products, this Agreement shall be submitted to the Chairman, National Industrial Relations Commission, Government of Pakistan, Islamabad, with a joint request for the issuance of necessary `Direction' in terms of this settlement, in his capacity as a competent authority under the Pakistan Essential Services (Maintenance) Act, 1952 and the Rules made thereunder." It has, therefore, very successfully been argued by Mr. Muhammad Humayoon, the learned Advocate for the respondent management that it is an admitted position that the provisions of Pakistan Essential Services (Maintenance) Act are continuously applicable to all the employees of the respondent establishment and as such, the provisions of section 50, I.R.O. 1969 were not applicable and this Tribunal had no jurisdiction to adjudicate upon and/or to interpret anything related to the settlement, in question. In this behalf, I am further fortified with the principle laid down in the authority, reported in P L D 1982 S C 113 at page 125 and a number of other decisions of Sind High Court, this Tribunal as well as the Labour Courts. Besides, Mr. Muhammad Humayoon, the learned Advocate for the respondents management had also very correctly placed reliance on the principle laid down in the cases, reported in 1985 P L C at page 957; 1988 P L C at page 25; and 1987 P L C at page

386. On merits, it was argued by Mr. Muhammad Humayoon, the learned Advocate for the respondent establishment that after a lapse of more than 8/9 months of the expiry of the settlement in question, the present application was filed by the union, thus, it patently suffers from serious laches and delay and that it is a well‑settled maxim that "Law helps the vigilant and not the indolent". In this behalf, he has referred me to the case- law, reported in 1982 S C M R at page 912 and also 1989 P L C

163. In view of the above facts, circumstances and the legal aspects of the present case, I would hold that Mr. Muhammad Humayoon, the learned Advocate for the respondent establishment has a good case, therefore, his arguments must be upheld.

5. For the reasons discussed by me above, I would hold that the present application under section 50, I.R.O., 1969, filed by the applicant union is not legally maintainable as this Tribunal has no jurisdiction in the matter, therefore, it is accordingly dismissed. A.E./1331/Lb. S Application dismissed.