1996 PLP 510 (PLC)

5th Wage Board Award. (Promulgated through Gazette Notification, dated 13th January, 1991). The position in the Award continues to be the same. Paragraph 85 of the said Award lays down that all safeguards, privileges and benefits etc. allowed under the earlier laws and not covered under the latest Award would continue to be enjoyed by the newspaper employees. Precisely this paragraph reads as follows:‑‑ "

85. All safeguards or privileges, benefits declared as wages already allowed under the decisions of the First, Second, Third and Fourth Wage Boards and not covered under this decision, shall continue to be enjoyed by the newspaper employees."

5. Now the main thrust of the arguments of the Management is that the Night Allowance which was provided in the First Wage Board was not extended to the newspaper employees by the subsequent Awards and that the Night Allowance would not be admissible to the applicant/employees of the newspaper and that the Wage Adviser in his report in the Third Wage Board Award has given the opinion that there was no justification for allowing the Night Allowance at 30% of wages as demanded by the employees, because night shift duty was normal feature of employment for which they get their wages and that the Night Allowance did not fall within the purview of the terms wages.

6. It may be noted that the opinion of the Wage Adviser was not accepted in the final Award because Night Transport Allowance was specifically allowed to the employees in paragraph 9 of Chapter 5 which contained the final recommendations of the Third Wage Board Award. Para. 11(ii) reads as follows:‑‑ Night Transport Allowance: 11 (ii) Night Transport Allowance may be allowed to all such employees who are required to attend duties between 9‑00 p.m. to 5‑00 a.m at Rs.2.80 per night in the case of Grades V to VIII employees and Rs.4.25 per night for employees in Grades I to IV. However, the contents of para. 7(ii) of the First Wage Board Award were not changed. Thus journalists working for more than 14 night, in a month would be paid at the rate of 30 per cent. of their basic pay for each night of employment over and above the fourteen nights.

7. Thus, the contentions of the Management that Wage Adviser's comments should be considered as binding for disallowing Night Allowance to the employees is without any legal basis and are hereby rejected.

8. Although Mr. Muhammad Azhar, Manager, Daily Jang, Quetta had vehemently denied the right of the employees to the payment of Night Shift Allowance, it is noticed that in the declaration filed by the Management in column dealing with Night Allowance, there are at least 16 employees receiving Night Allowance @ Rs. 40 and 60 per night. This belies the contention for the Management that Night Allowance is not admissible to the employees.

9. It has been rightly urged on behalf of union that the employees are entitled to Night Shift Transport Allowance at the rate of 30% of their basic pay for each night of their employment over and above the 14 nights and that instead of Rs. 40 or 60 paid to the employees, the Night Allowance be calculated in terms of para. 7 of Fringe Benefits of the First Wage Board Award.

10. There is no force in the argument of the Management that Night Allowance is not wages as defined under the Law. This contention has no force because in paras. 12 and 13 of the Third Wage Board Award all privileges, benefits etc. admissible under their earlier law would continue and that all benefits allowed under paragraph referred to above have been declared as rages, under the Payment of Wages Act, 1936, the term wages has been defined in section

2. It has very wide ambit and would certainly include Night Allowance. This definition reads as follows:‑‑ "(vi) 'Wages' means all remuneration, capable of being expressed in terms and money, which would, if the terms of 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 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, 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 entitled on him by the nature of his employment; (e) any gratuity payable on discharge. "

11. Night Allowance or a Night Shift Allowance would, therefore, came within the ambit of wages.

12. The provision of sections 6 and 24 of the General Clauses Act, 1897 would also come to the rescue of the employees. No benefit or right accorded by a repealed law would be effected by a subsequent legislation unless a different intention appears. There is nothing on the record to suggest that the legislature intended differently.

13. In view of the above discussion, it is hereby held that the petitioners are entitled to the payment of Night Shift Transport Allowance as admissible under Paragraph 7 of Fringe Benefits of the First Wage Board Award which was promulgated on 31st December, 1960 and came into effect on lst January, 1961. The employees of the newspapers, however, are not entitled to the payment of the said Allowance from the date of the promulgation of the Award. The employees filed their petition/objections to the. declaration of the Management on 28th November, 1988. Therefore, they are entitled to the payment of the said allowance from 27th November, 1988.

14. With regard to the claim of the union/employees for Hajj and pension, it is suffice to say that both these privileges have been denied by the Supreme Court of Pakistan in its judgment of Independent Newspapers Corporation v. Chairman, Fourth Wage Board Award (1993 SCMR 1533). The Supreme Court of Pakistan has laid down that the performance of Hajj may be a pious and laudable object but it is not correlated with the concept of wages within the meaning of law. Remuneration is a reward for a services rendered. Nomination of two employees through ballot for performing Hajj by an establishment out of the whole lot of its employees, had no nexus with the rendering of service by them which is a prerequisite for payment of wages. Thus, performance of Hajj is not right or privilege which could be enjoyed as right by the employees at the expenses of the Management.

15. Similarly the question of payment of pension has been dealt with by the Supreme Court of Pakistan in the aforementioned judgment. It was held that the Wage Board could not order the payment of pension as well as gratuity and that in all fairness either the pension or gratuity should be given to the employees and there was hardly any justification to grant both these retirement benefits to the employees. This Tribunal respectfully follows the said judgment and rejects the claim of the Union with regard to Hajj performance and the payment of gratuity and pension.

16. It was submitted on behalf of the Union that many of the employees were already getting both the benefits i.e. pension as well as gratuity that may be so and it is all the more commendable and the Union should be grateful to the Management for their generosity.

17. In view of the above discussion, it is also held that the employees of Daily Jang, Quetta are entitled to the payment of Night Shift Allowance at the rate given in para. 7(ii) of Fringe Benefits of First Wage Board Award with effect from 27‑11‑1988 and that the employees are not entitled for Hajj at the expenses of the employers, which is essentially a charitable object and it is left to the choice and discretion of the employer. No such right for the performance of Hajj vests in any of the employee.

18. The application of the Union is accepted to the extent mentioned above. This case is accordingly disposed of.

19. Parties are left to bear their own costs H. B. T./270/N.I. R. C Order accordingly