1993 PLP 760 (PLC(CS))

3. Patently the settlement was after the Sindh Employees Special Allowance (Payment) Act, 1986 had been amended in 1990. In the said Act after section 3 the following subsection was added: "Insertion of section 3‑A of Sindh Act X of 1986.‑‑‑Every employee whose wages do not exceed two thousand five hundred and eighty‑five rupees per month,' shall, in respect of employment on or after the 1st day of December, 1990, be paid by his employer an additional special allowance‑‑ (a) equal to two hundred rupees per month. If his wages do not exceed two thousand five hundred and eighty five rupees per month; or (b) Omitted. Provided that the additional special allowance shall be set off against the amounts payable‑‑ (a) as a relief due to rise in the cost of living under an agreement or settlement reached, or an award given, under the Industrial Relations Ordinance, 1969, on or after 1st December, 1990; and (b) Omitted.

4. The recital in the circumstances was rather gratuitous, as the adjustment had‑ to take place any way. However, on the 22nd of August there was a further amendment of the Sindh Employees Special Allowance (Payment) Act, 1986. Its section 3 reads as under:‑‑ "

3. In the said Act, after section 3, the new section 3‑A shall be added:‑‑ "3‑A Every employee, irrespective of wages being paid to him, shall, in respect of his employment on or after the 1st day of December, 1990 be paid by his employer an additional special allowance equal to two hundred rupees per month."

5. The law had brought about a great change. The number of the recipients of the allowances had been enlarged and the proviso in regard to the set off had been altogether done away with.

6. It was argued by Mr. Ali Amjad that the amendment of 1991 had created altogether new rights. It had nothing to do with the Cost of Living. May be it was to alleviate the misery of the workers, may be it was a political move with an eye on the elections. Whatever the motivation, the fact remained that it had eliminated the consideration of the rise in the Cost of Living and the proviso which it had. Because it was a new right the applicants had neither contracted out, nor there could not be any question of waiver of any benefit that had come their way. Reference was made to the cases of Muhammad Moin Khan v. Chief Settlement Commissioner and others (PLD 1961 SC 436) and New Jubilee Insurance Employees' Union v. Sindh Labour Appellate Tribunal (1982 PLC 1012).

7. In the former case, it was held that waiver in law can be effective only if there is consciousness of the right itself at the time of the alleged waiver. In the latter case the ingredients of waiver were pointed out which were (1) that the right should exist; (2) the person in whose favour the right exists should have the knowledge of such rights; (3) that he consciously waives such right and (4) that waiver does not violate any law. It went on to say that there could be no waiver of a right which did not exist.

8. There being no mention of the rise in the Cost of Living nor any proviso mentioning adjustment as earlier, it could not be said that the applicants had bartered away their rights. I will therefore hold that the Demands of the applicants for the payment of the allowances cannot be denied. I answer accordingly. H.B.T./2213/Lb.S ?????????????????????????????????????????????????????????????????????????????? Order accordingly.