1988 PLP 980 (PLC(CS))

S.2 (xxiv)--Settlement arrived at between management and C.B.A. of a particular unit--Such settlement was not applicable to workers of other units. Ch. Mahboob Alam for Petitioner. Mian Mohammad Shat for Representative of Respondent. This is a revision reporting that the order dated 26-5-1986 recorded by the learned Presiding Officer, Punjab Labour Court No. 4, Faisalabad is wrong and improper. 2. The facts of the case are that the respondent who was a conductor was removed from service on 18-1-1982. He brought an application under section 15 of the Payment of Wages Act for the recovery of gratuity for the period of his service of 14 years, 5 months and 23 days. He was allowed gratuity amounting to Rs. 6442/- on basic pay only and, therefore, he brought a petition under section 15 claiming gratuity on allowances as well. Besides the gratuity he had claimed the security amount amounting to Rs. 200 and recreation allowance of Rs. 600. The learned Authority directed for the payment of Rs. 7,600 deducting the amount of Rs. 6,442 which had already been paid by the petitioner to the respondent. The respondent produced evidence but so far as the evidence of the petitioner is concerned, it was agreed that the one recorded in Case No. 22/84 be transferred. 3. It has been argued by the learned counsel for the petitioner that neither copies of the evidence recorded in Case No. 22/84 were brought on the record of this case nor the learned lower Court discussed the said evidence. He has also argued that the learned Authority framed three more issues while deciding the case which did not exist prior to that and decided those issues only and did not express any opinion upon the already framed issues. The issues which had already been framed are," (1) Whether this petition is maintainable or not? (2) Whether cause of action has accrued to the petitioner or not? (3) Whether this Court has jurisdiction or not? (4) Whether the petitioner is entitled to the wages claimed by him. If so to what extent (5) Relief." This is true that the learned Authority has not touched the issues mentioned above but it makes no difference. Issues nos. 1 and 3 are one and the same. According to subsection (2) of section 15 of the Payment of Wages Act, a petition for the recovery of the gratuity is maintainable, therefore the Authority had jurisdiction and the petition was otherwise maintainable. Issues nos. 2 and 4 go with each other. Since the learned Authority found that the respondent was entitled to Rs.7,600 impliedly issues Nos. 2 and 4 were decided in his favour. The learned Authority did not record any clear finding on the issues which were framed while preparing the judgment. Issue No. 1, mentioned in the judgment, is to the effect, "Whether the petitioner can bring application after receiving his dues?". The claim of the respondent was to the effect that he was entitled to get gratuity on allowances also and since only on basic pay the gratuity was calculated, he was entitled to hang application under section 15 even though he had received the amount of gratuity allowed by the petitioner. So, no express finding has been recorded on the issue but since the petition was accepted, impliedly the issue was found in favour of the respondent. The other issue was "Whether the petitioner was entitled to gratuity on pay and allowances at the rate of 45 days per completed year". No separate finding was recorded on the issue but since gratuity was allowed at the rate of 45 days per completed year, implied this issue too was found in favour of the respondent. The same is the case with issue No. 3, mentioned in the judgment. The learned Authority has found that the respondent was entitled to take benefit of the settlement arrived at between the C.B.A. Union, Rawalpindi and the petitioner. This finding is incorrect. The settlement arrived at between the management and the C.BA. Union of a particular unit is not applicable to the workers of the other units. Therefore, the management cannot be compelled to give benefit of such a settlement to the workers of other establishments. The reasons given by the learned Authority are not cogent. The mere fact that the representative of the Head Office had taken part to the settlement is not sufficient. If the employer elects to give facilities to all the workers of its establishment alike, it does not mean that he can be compelled to give all the benefits of the settlement arrived at between the management and the C.B.A. of a particular establishment. 4. Since the gratuity had been allowed by the petitioner at the rate of 45 days per completed year, there is no dispute between the parties in this respect. The dispute is whether the gratuity is to be calculated on allowances as well and if so to what extent? Every right can be based upon some law or agreement. Besides the provisions of Standing Order 12(6) of Standing Orders Ordinance, 1968 there is no provision of law whereby gratuity may be claimed on wages as well. According to Standing Order 12(6), gratuity on wages can be claimed at the rate of 20 days per completed year and not 45 days. The learned Authority, therefore, could have allowed gratuity on wages at the rate of 20 days only. Now the question remains on what kind of allowances gratuity can be claimed. The allowances, which are not of permanent nature, arc akin to the; paste pay although not part of the pay in strict sensor. So, such kind of wages can be included while calculating gratuity. House Rent Allowance, Conveyance Allowance and other allowances of a like nature arc of permanent nature. Dearness allowance is not a permanent allowance. This allowance can continue till the cost of living is high. If cost of living increases, dearness allowance may be increased and vice versa. 1f rates of commodities of every day use come to normal stage, there would be no need of allowing cost of living allowance. However, the allowance of this kind allowed by the Employees Cost of Living (Relief) Act is a statutory provision of law, therefore, this kind of allowance allowed by law is to be in chided while calculating gratuity. The allowances which have been excluded from the definition of wages cannot be considered while calculating gratuity. There is no evidence what allowances the petitioner is allowing to the respondent, therefore, it cannot be expressly directed as to on what allowances gratuity should be paid by the petitioner. This Tribunal had previously in some case held that the workers were entitled to gratuity invariably on allowances but unfortunately it could not be considered if there was any agreement or law on the basis of which the workers could base their claim. The controversy has been set at rest by giving a definite finding to the effect that gratuity can be claimed on basic pay under Rules and it may be on allowances as well to the extent Standing Order 12(6) allows, 5. As a result the revision is partly accepted and the orders of the learned Courts below are modified to the extent that so far as the claim of the respondent with regard to the gratuity on allowances is concerned, he is entitled to the gratuity on the allowances of permanent nature at the rate of 20 days per completed year only. The result is that the gratuity calculated at the rate of 45 days on basic pay would remain intact and gratuity on wages (allowances) will be calculated at the rate of 20 days per completed year only. A.E./273/Lb. P. Revision partly allowed.