1990 PLP 277 (PLC)

(1) In Dadabhoy Ceramic Industries Ltd. Memorandum of Settlement, dated 16th July, 1985. (2) In Nichimen & Co. (Pakistan) Ltd. Memorandum of Settlement, dated 15th August, 1984. (3) In Thatta Cement Ltd. Memorandum of Settlement, dated 30th October, 1986. (4) In Liberty Mills Ltd. Memorandum of Settlement dated 29th June, 1986.

5. It is clear from the terms incorporated in these settlements that the increase under the settlement/settlements was not to provide relief due to rise in the cost of living and Mr. Mehmood A. Ghani has miserably failed to show that the total amount payable or paid was adjustable within the terms incorporated. In order to claim set off it is the duty of the employer to specify the ascertained amount the employer is required to pay to an employee by way of cost of living under the Ordinance and side by side he has to provide the amount which the employer has already paid under the terms of settlement. From this amount, he has to set apart the portion which has been specifically given due to rise in the cost of living and after this exercise has been done in each and every case of employee the employer can lay his claim to set off under the settlement/settlements. At present no such claim exists and there is no basic statement to this effect. The prayer clause reads: "In view of the above, it is respectfully prayed that this honourable Tribunal be pleased to interpret the settlements referred to above and be pleased to pass orders accordingly." This renders the applications to be wholly misconceived and ill‑advised.

6. My interpretation in terms of the settlement/settlements which do not specify, that the increase is to provide relief due to rise in cost of living, every employee whose wages do not exceed one thousand five hundred rupees which shall not include the addition/additions of cost of living allowance admissible under subsections (1), (2), (3) and (4) shall in respect of his employment on or after the First Day of July, 1985, and First day of July, 1986, whether he is on time work or piece work, permanent or temporary or badli or apprentice shall be paid by the applicant company an increase in wages by way of cost of living at the rate of 13.5 per cent and 18 per cent respectively of his/her wages, and the applicant company is not entitled to any set off as the increase given was not payable as a relief due to rise in the cost of living. This is sound on the principle that nobody should get double benefit one under the settlement and the other under the statutory enactment. I hold that the provisions of settlement/settlements arrived at between the employer and Collective Bargaining Agent do not supersede the law and as such no estoppel can be pleaded against law. The provisions of Principal Act namely the provisions of Employees Cost of Living (Relief) Act, 1973 (amended from time to time) have to prevail, but if there is a system of measuring the cost of living by a sliding scale agreed in the scheme of neutrilization of wages from point to point at the given interval, then nothing shall become payable. None from amongst the applicant companies have come forward or claimed that such a regular scheme exists in their establishment and hence the second part cannot be pressed into service.

7. For the facts and reasons discussed by me above, my interpretation of settlement/settlements reached between the applicants companies and the respective Collective Bargaining Agents as sought from this Tribunal is that effective 1st July, 1985 and 1st July, 1986, respectively every employee whose wages did not exceed one thousand five hundred rupees per month was and is entitled to be paid additional Cost of Living Allowance at the rate of 13.5% and then at the rate of 18% respectively with retrospective effect specified in the said amendments and employees shall be paid all the arrears accrued to them without any deduction within a period of fifteen days from the date of this interpretation placed on the terms of settlement/settlements read with the Sixth and Seventh amendment made in the Employees Cost of Living Relief Act, 1973. A.E./1317/Lb. S Orders accordingly.