1991 PLP 637 (PLC(CS))

Ch. Rasheed Ahmad for Respondent. Date of hearing: 26th September, 1989. In this appeal, the order of learned Presiding Officer, Sindh Labour Court No.III, dated 29-11-1988, is impugned.

2. The respondent No.2 was admittedly a workman employed by the appellants as a Telephone Operator vide appointment order, dated 6-4-1978. Her terms and conditions of service were settled vide letter, dated 5-7-1978, under which she was allowed telephone operating allowance of Rs.60 per month. In September, 1985, she was transferred to Shahra-e-Faisal Office where she was not allowed to draw this allowance. After serving the grievance notice upon the appellants, the respondent filed her grievance petition in which she claimed three reliefs. Firstly, that the telephone operating allowance of Rs.60 be restored to her and arrears be paid to her. Secondly, she be paid overtime allowance and arrears of the same; and thirdly, she be considered for promotion.

3. I have heard Mr. Rehan Aqeel, the learned Advocate for the appellants and Mr. Choudhry Rasheed Ahmed, the learned Advocate for the respondent. Mr. Ch. Rasheed Ahmad has candidly admitted that the promotion is not secured right which could be enforced through the Labour Court. The learned Labour Court has already disallowed the claim of the respondent for overtime and directed her to approach the Authority under the Payment of Wages Act for the said purpose. In this context, he has relied upon the case of Moiuddin v. Second Sindh Labour Court and two others, reported in 1976 P L C 517, wherein a learned Single Judge of Sindh High Court, Karachi Bench, had observed that "the jurisdiction of the, Labour Court was barred relating to claim for payment of overtime wages, but, the Authority constituted under section 12 of the Shops and Establishments Ordinance, 1969 had jurisdiction in such matters:'

4. In the instant case, however, the Shops and Establishments Act is not applicable, but, the Payment of Wages Act, 1936, is applicable. The Authority constituted under section 15 of the Payment of Wages Act, 1936, would have exclusive jurisdiction to adjudicate the claim with regard to such amounts which are covered by definition of `wages' under the said Act. The payment of overtime as well as telephone operating allowance would be covered by the definition of wages, as defined under section 2(vi) of the said Act, which may be reproduced as under:-- 9.2(vi)--`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 employment 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 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."

5. In the case of Syed Mushtaque Hussain Shah v. Riaz Hussain Hazarvi and another, reported in PLD 1978 Kar. 612, a learned Single Judge of Sindh High Court had observed that "principle that where a statute creates a right and also provides machinery for its enforcement resort must be had to procedure prescribed in statute creating right for its enforcement and jurisdiction of Civil Courts is barred in such matters was an old principle recognized in England since ancient times." The learned Single Judge had relied upon the earlier Judgment of Sindh High Court in the case of H.H. Ahmed v. Pakistan reported in P L D 1972 Kar.

366. In view of this legal position, in my opinion, the learned Labour Court had no jurisdiction under section 25-A, I.R.O., 1969, to enforce a claim of allowances fixed as wages of an employee under her appointment order. The forum to hear such claim is the Authority appointed under section 15 of the Payment of Wages, Act, 1936, and the Labour Court is an appellate Court under section 17 of the said Act to hear appeals against the order of the Authority.

6. The respondent had relied upon Standing Order 2(A) which only secures the right of the employee to get terms and conditions of appointment, in writing, but, does not secure the right of an employee for enforcement of such terms and conditions which in the case of wages would be enforceable through the aforesaid Authority. Admittedly she does not claim this right under any settlement, but only under the contract of service.

7. In view of the aforesaid legal position and discussion, I would set aside the impugned order of the learned Labour Court and would allow this appeal. However, the respondent No.2 would be at liberty to seek relief, if she is entitled to any, with regard to overtime and telephone operating allowance, through the Authority under the Payment of Wages Act, 1936. M.Y.H./1567/Lb.S Appeal allowed.