1989 PLP 386 (PLC)

shall not be deemed to be an increase intended to provide relief due to rise in the Cost of Living.

10. The case has presented very interesting questions of law. Mr. Lodhi, counsel for the workers, firstly has raised the preliminary objection has contended that copy of the clarification, from the Ministry of Finance cannot be treated as an evidence, unless the man concerned has been examined in the Court of law. His next submission is that this clarification can only be decided by the Court of law.

11. The objection of Mr. Lodhi with great respect to his legal view, cannot be disputed, that only the Court of law is to decide what the notification provide the meaning under the Cost of Living (Relief) Act known as the Amendment Act of 1985. But what is necessary to be pointed whether Court can take notice of the l notification, which is issued under the Amendment Act. Article 51 of the Law of Evidence which is known now as Qanoon‑e‑Shahadat Order, clearly provides that the Court if forms the opinion, as to the existence of any fact of public nature, any statement of it in the 'Government Notification is a relevant fact. The objection, therefore, that notification cannot be read or the clarification following, if it is a relevant fact can be read. In this context of the reference the Government of Pakistan, Finance Division, under the legal opinion sought from the Justice Division made the clarification of which the Labour Court which is the Court of law can lake judicial notice, for any notification passed through Justice Division under the particular enactment. Therefore, the Court of law cannot overlook what was the clarification which again the Court of law is to decide in the nature of the language of what the enactment provides. Indeed the scope of the Labour Court regarding interpretation as to what was the intention of the law‑maker, as Mr. Lodhi has contended the Labour Court has limited jurisdiction to question vires of particular notification. This can only be done in the exercise of the constitutional jurisdiction before the highest Court, in dealing with the construction of statute, so what is to be seen by the Labour Court, is the Amendment Act, and its ordinary and natural meaning. So the legal opinion or clarification of the Finance Department from the Justice Division assists the Court of law namely the Labour Court to know what is the relief provided to the workers in view of the Amendment Act, 1985, that is clarified that the Cost of Living Allowance payable to an employee under subsections 1 to 5 of section 3 of the Employees' Cost of Living (Relief) Act, 1973 will not be taken into account, for the purpose of calculating, the increase in his wages C` 13.5% and the set off, is allowed in respect of those amounts which were granted under agreement after 1‑1‑1984. The amounts due under the agreement from date prior to 1‑1‑1984 are not to be set off and in such cases the increase in wages under section 3(6) of the Cost of Living (Relief) Act, 1973 shall remain intact irrespective of the fact that agreement was signed after 1‑1‑1984. The clarification, therefore, needs no further clarification.

12. The shorter question of the workers is that the management has acted according to the amended law in respect of 10% of wages vide subsection (2) of section 3 but did not comply with the same for 13.5% increase in wages granted w.e.f. 1‑7‑1985 under subsection (6) of section 3 as well as under subsection 7 of section 3 effective from 1‑7‑1986 for giving increase in wages by 18% of wages. Their grievance is that management has calculated 13.5% from 1‑7‑1985 on the basis of basic wages only and further not acted in accordance with law in respect of calculation on the basis <)f basic wages plus Cost of Living Allowance according to procedure in subsection (7) of section

3. The calculation of 4.5'x, is made on the basis of basic wages for calculation of 18's increase from 1‑7‑1986. 13, Mr. Lodhi has referred the amended law for the purpose of reference that the management acted in respect of 10'% but not complied with 13.5% from 1‑7‑1985, obviously he refers to the preceding paragraph 2 of which he has made the reference of the Amending Act of 1977, which Mr. Mehmood Ghani unfortunately did not refer and the Court pointed to Mr. Lodhi. Mr. Lodhi has referred with clarity in his note of arguments, what was the position in 1973 and in 1977.

14. He refers section 7 of 1973 Enactment that the Cost of Living Allowance was not to form wages. The language of the Enactment referred by Mr. Lodhi is as under:‑‑ "Notwithstanding anything contained in this Act or any other law for the time being in force, the Cost of Living Allowance shall not form part of wages of a worker for the purpose of any other law including contribution to Provident Fund, Gratuity, Bonus, Social Security ‑‑‑‑‑‑‑‑‑‑

15. But when the Amendment of 1977 came the position was in this manner, that the Cost of Living Allowance to form part of wages notwithstanding anything contained in this Act or any other law for the time being in force the Cost bf Living Allowance shall form part of wages of the workers for the purpose of any other law.

16. Mr. Lodhi also referred to the Amendment Act of 1977 by reference to section 7 in the context of indexation of wages. What Mr. Lodhi has said, that in section 7 the Amendment speaks that after the words Social Security Scheme, the words indexation of wages should be read. This is with reference to the Gazette of Pakistan of June 1987 with reference to Act No. VI of 1987, section 9.

17. Mr. Lodhi has further clarified the context of the argument that the percentage of 13.5 is to be accounted on basic pay scale plus Cost of Living Allowance and further stretched the definition of wages that wages previously under the Enactment of 1973 referred the remuneration for services other than Cost of Living Allowance. But after amendment, the words, "other than Cost of Living" were deleted. In other words, what Mr. Lodhi interprets, that by omitting the Cost of Living the meaning is that previously the remuneration of services minus Cost of Living was considered in the concept of the definition of wages. But after deletion of the words Cost of Living the wages means remuneration and Cost of Living. Mr. Lodhi has also gone further to draw the distinction that previously tile Cost of Living was not to form part of wages but after Amendment it became the part of wages for the purpose of other laws. According to Mr. Lodhi, this section 7 has no concern with section 2(e) regarding definition of wages, which is an independent section, consequently he states that provisions of section 3(6) and (7) arc clear th;it increase of 13.5% was to be given from 1‑1‑1985 and 18% from 1‑1‑1986. So far as the set off is concerned Mr. Lodhi is very clear that set off is not disputed if any financial benefit additionally is received. Mr. Mehmood Ghani has not referred the Amending Act of 1977 but C only taking this position that addition of the Cost of Living paid or payable for the period preceding lst August 1973 was covered in the definition of term wages and therefore Cost of Living paid was treated as part of wages. But Cost of Living after 1st August 1973 is not to be treated as wages, for the purpose of definition of term, wages. He, therefore, contends that the Cost of Living payable to the employees cannot, be taken into account for the purpose of calculating increase, 13.5% and relies on the notification of the Government. taking this argument that if the addition is made in the wages many workers who at present receive the benefit shall be excluded from the purview of the Act on exceeding the limit of 1,500. tic hits further taken this approach that the object to promulgate the Act of 1973 was to give financial relief and not to deprive them of the bend incorporating the definition in the term wages. In short the management admit that they calculated 13.5% from I‑7‑19115 on the basic wages and not on CLA. tic further refers that while subsection (7) of section 3 has been misunderstood, this provision refers to increase in wages of 18% and liable to be set off. Mr. Lodhi has further explained that CLA of 1981 was adjusted through settlement in 1981. 13.5` increase in wages was to be given from 1‑1‑1985. Since there was no settlement aft r 1‑1‑1984 13.5% was tit be paid, but the respondent calculated 13.5% on the basic wages. Thirdly he states, that the rate of increase in wage, from 1‑1‑191;1) was made 18"(, instead of 13.5%. The legislature did not mention 4.5% increase but I8%o to be adjusted against 13.5% but the respondent calculated only 4.5% of basic wages instead of calculating increase on 18%.

18. With these submissions and the reference to the Amending Act of 1977 which Mr. Lodhi has referred that Cost of Living Allowance corms part of wage further referred to the Amending Act of 1977 that the word indexation of the wages also includes the complicated question of law arises in view of further clarification made by the F1 wince Department which Mr. Lodhi is not able to reconcile, whether the Cost of Living Allowance includes in the wages. Both the counsel have contended by giving their own interpretation of the intention of the law.

19. In such case, what the Court arrives at this finding that the scope of the Labour Court to give the interpretation will be beyond the scope of its jurisdiction. But as the matter stands, what the clarification of the Ministry of Justice is on the basis of notification, the Court follows as a relevant fact, and. what is the legal position of the highest legal opinion, apart from the Court of law.

20. This is a question of the interpretation of the statute to be taken, in the exercise of the constitutional jurisdiction, but what is necessary also to be pointed that this clarification is in respect of the Amendment Act of 1985 where the issue was whether the Cost of Living Allowance totalling to Rs. 150 as allowed under sections 3(1) to 3(5) is to be taken into account for determining wages while indexing wages are 13.5% to determine the Cost of Living Allowance‑ The second issue was that which agreements will have the force?

21. In this context it has been said that the agreements which are signed after 1‑1‑1984, but provision regarding increase in the wages have been made effective from the date prior to 1‑1‑1984.

22. In this clarification reference of the Amending Act, 1977 has not been found on the subject, and therefore, the difficulty of the question of law arises regarding the position of the indexation, though the clarification refers to the indexation of wages in that issue, under reference. The wider interpretation as argued by Mr. Lodhi in the context of that Amending Act VI of 1987 presents the difficulty.2‑A. However reference to the Act of 1973 known as the Employees Cost of Living (Relief) Act, was read with both the distinguished lawyers Mr. Mahmood Ghani and Mr. Lodhi with all the amendments made from time to time to know the intention and the clarification and further to take support from the highest opinion also from the Ministry of Justice.

23. To be precise, it is said that prior to August 1973 by reference to section 3, it shows that firstly the definition of the wages in clause (a) of section 2 means remuneration for services payable in cash without taking into account of deductions‑‑‑‑‑‑‑‑and includes any Dearness Allowance or other additions in respect of the Cost of Living Allowance or paid for the period preceding the 1st day of August 1973‑‑‑‑‑‑‑but does not include over time gratuity etc. The purport of this definition appears to be clear that in those days Cost of Living and also Dearness Allowance was the supposed inclusion. Then came the clarification in section 3 that every employee whose wages do not exceed 735 rupees will be paid after 1st August 1973 an allowance equal to 35 rupees per month or if the wages exceed at such rate as, together with his wages. The words are at such rate and with the wa, eg s together. This was the position after August 1973 regarding the Cost of Living Allowance to come out prominently. In other words, it was an additional relief only, what the Labour Court thinks. Then subsection (2) says that if the wages do not exceed 1,100 rupees, then after June 1974, there will be another additional relief on the relief already granted previously on this formula that he will be paid 50 rupees equal per month of 10% of monthly wages whichever is more and if it exceeds rupees 1,100 at such rate, as together with his wages. What this Court follows, that this was additional relief looking to the wages and the peculiar conditions of the cost of prices rising. The difference between 1973 and 1974 appears to be that at that time the first category of wages is shown 700 rupees in 1974 it is of 1,100 or more. The word 50 rupees or 10% of monthly wages is quite indicative that this particular allowance was an additional relief of a particular amount and not to be merged in the wages only as a relief. For, the Labour Court feels that the basic structure was already there and there was supposition of the inclusion of the Cost of Living, what has been intended, prior to August 1973. Then came the clarification in subsection (3) that after April 1975 the employee.will get Cost of Living Allowance equal to 25 rupees per month. In other words, the word in addition means previous Cost of Living and Rs.

25. The word previous reference means that it is clearly spelled out that addition to the Cost of Living admissible under subsection (1) or under subsection (2) as the case may be. In consequence therefore, these reliefs were found suitable to the conditions. Then there is subsection (4) that after July 1980 employee will get Rs.

40. Here also the word is addition, what was being paid under subsections (1) and (2) also. But here the provision has been made that the employer should not be burdened and therefore, the right of set off was given, if it has accrued under settlements. In other words, to maintain the equity there should not be double benefit because the employee was getting Cost of Living Allowance previously and also in this year of 1980. Then subsection (5) came with further clarification that after July, 1981 there will be addition to the Cost of Living equal to Rs. 40 per month. This subsection 5 is very significant and Court has gone very deep in this proviso, where the intention is reflected that if 40 rupees are given and previously the Cost of Living Allowance is given the employer should not be burdened and will have the right of set‑off if there has been double benefit. The most significant part of subsection (5) is that the provisions of section 7 shall not apply to the Cost of Living Allowance. The language of section 7 in the amended law is that notwithstanding anything contained in this Act or any other law for the time being in force, the Cost of Living shall form part of wages of the worker for the purpose of any other law including the purposes of contribution to Provident Fund, Gratuity, Bonus provided that for the purpose of Workmen's Compensation Act except section 4, the Payment of Wages Act, Workers' Participation Act or the Industrial Relations Ordinance, the Cost of Living Allowance shall not form part. From this language it appears that whatever is contained in this Act or any other law in force, if the Cost of Living Allowance is to form part of the wages it is only for the purpose of any other law under which the employees get relief of the special nature.

24. But this subsection (5) of section 3, is legally significant, for this reason that there is a proviso of qualification to be infirmative that this non‑application of section 7 will not apply to that Cost of Living which is payable under this subsection. Subsection means with reference to subsection (5) and not before. In other words, this limitation of section 7 was not applicable to this subsection under which payment was made and what the Labour Court follows that this was relief under this subsection and not to be part of wages or to change the basic structure of wages. The reliefs if were granted were only in context of the peculiar conditions to remove the hardship due to rising of cost prices.

25. Then came the clarification in subsection (6) that employee will get addition by way of increase in wages at 13.5% of his wages. The words are addition to that Cost of Living which was already paid under subsections (1), (2) (3) and (4) and subsection (5). But after 1st July 1985 what the Labour Court has found the significant change that is, of an increase in wages and so also in subsection (7) at the rate of 18% of his wages. The fundamental distinction appears to be that in subsection (6) the word used is increase in wages and in sub section 7 the word is increase in wages with further qualification or the clarification as the case may be that first time word rate is used of 18% of his wages. But this subsection (6) also shows that provisions of section 7 will not apply, to those payments which have been shown as increase in wages payable under this subsection: Subsection means subsection (6) and not subsection (7) for, from the book amended known as Act No. 1 of 1974 written by Mr. Shari. Subsection (7) is not there. But Mr. Mahmood Ghani has produced the photostat copy to show that subsection (7) came for clarification that after 1st July 1986 there will be increase in wages at the rate of 18%. The distinguishable feature appears to be that on one hand increase in wages is shown at the rate of 13.5% of his wages means the wages he was drawing and further increase should be given as a relief of the Cost of Living Allowance to addition to the payment made under subsections (1), (2), 3, (4) and (5) with right of set‑off if any. It is in this subsection it has been said clearly that section 7 will not apply to such increases. Clearly therefore, the Cost of Living Allowance under this Special Legislation was simply an additional relief, in no way changing the basic structure of wages. It will further be seen that in subsection (7) there is no provision of qualification to say that section 7 will not apply. The photostat copy of the Act referred before the Court has nowhere found such provision that section 7 will not apply under subsection (7) of section

3. The only difference is of the words that there will be increase in wages with new addition of the word rate of 18% of his wages. When the Court refers the previous background of section 3 in the explanation of the reliefs granted after 1974 the words were equal to 50 rupees or 10% of monthly wages. The word rate was not used. So obviously in this legal connotation what the Labour Court understands that even if there was no provision of application of section 7 under subsection (7) of section 3, the language of subsection (7) of section 3 speaks of the increase as an additional relief due to high cost of living by addition of 18% of the wages.

26. Consequently, this is only an increase of the Cost of Living A Nance from time to time after every year looking to the conditions but it cannot be the basic wages by addition. If the Cost of Living goes through changes, as less, these increases can also be reviewed as long, as these remain, effective up to these amendments. The Court fully supports the view of Mr. Mahmood Ghani on the question of law, that the Cost of Living after 1st August 1973, is not the wages, for the purpose of the Employees Cost of Living (Relief) Act, in contrast to the, previous position of 1973, before August, which according, to him was, part of the wages. The Court has also further, referred, the notification, which says, that the Cost of Living Allowance, payable to the employees under subsection (1) to (5) ID will not be taken into account for the purpose of calculating increase, at the rate of 13.5%. The Court also follows the same view, that 13.5% increase is given under subsection (6) and therefore each relief is to be calculated according to the year it is intended cannot be stretched to other subsections previously where they got particular amount of relief according to the terms and conditions.

27. Lastly the difference of 4.5% is the point of dispute. Mr. Mahmood Ghani in paragraph 4, has come out with this explanation that the management, is not making less payment. The fact is, that the amount of the increase given by the company under the aforementioned settlements has substantially worked out more than 4.5% increase in the basic wages. Management is already giving 13.5% increase from 1‑7‑1985. His view point is that 13.5% increase in wages or the additional 4.5% in the basic wage is at one time basis. His line of thinking also is that under subsection (6) of section 3 the law nowhere provides that the amount will go on increasing with the increase in salary of employee. If 13.5% or 4.5% increase is to be paid on increase in wages/Annual Increment, then with the passage of time the workers will be disentitled to the benefits by virtue of the fact that their wages would exceed 1,500 rupees per month. What the. Court understands that though the word 18% is used by way of increase after July 1986, the argument of Mr. Mahmood Ghani that it will upset the wage structure of 1,500 rupees, certainly appears to be logical that the benefit of increase of 18%r shown in subsection (7) is also to be considered in line with the intention of the Act that the Cost of Living Allowance is limited only to those wages which do not exceed 1,500 rupees, what will be the spirit of the law, which has provided relief only to these salaried persons. So what is said that it is given under 13.5% after July 1985 and the difference upto 18% granted under subsection (7) can be given. The Court will also point out that these are the increases in the wages but not have become basic wages to change the structure. Cost of Living Allowance is only relief.

28. However the Labour Curt is still of the opinion that in the difficult question of law, of, which the various interpretations are given, whether the Cost of Living Allowance, becomes the part of wage or the wages, or Cost of Living Allowance, is simply an additional relief, which can be taken away, as soon as the conditions of the heavy cost of prices reduced, the Labour Court has limited scope of putting such interpretations of far reaching importance, which interpretations still can be made by going into writ jurisdiction as to the intent and the purport of the Act, for, Mr. Lodhi may not reconcile with this Court's opinion or with the opinion of what Mr. Mahmood Ghani has placed the notification.

29. The point is open, with this view of this Court in the present dispute.

30. The next question which has come relates to the objection whether the common grievance as contemplated by section 25‑A (10), whether application is maintainable. What the Labour Court is of the opinion, that, common grievance arises out of the common cause of action, for the purpose of the application of section 25‑A(l0). For the purpose of statutory limitation in respect of the individual grievance, if be taken m the context that all workers have the common f interest, in the monetary benefit. But grievance is entertained for redress separately, cognizable. Subsection (10) can only be invoked for the purpose of If common grievance, regarding monetary entitlement, but not to the dispensation of the limitation for individual redress for the purpose of limitation. If each one is affected, he entertains the grievance. It is he who, is to come before Labour Court, for the redress in conformity with the requirement of law, that is the statutory limitation which is so emphasized. In other words, if the right accrues to him on particular date and the right accrues to other workers, on the other date they cannot sit at home, and plead the common cause of grievance to take the protection of subsection (10). They have to come within 3 months within the time, when the cause of action arose. This subsection (10) appears to be invoked only in those cases what the Labour Court follow that the union takes up the cause of all the workers who were affected by the common grievance but not in the case of a worker who otherwise had individual grievance could come to the Labour Court under section 25‑A, I.R.O. 1t will be otherwise assumed the jurisdiction indirectly, to defeat the provision of sub section 1 of section 25‑A which has put statutory limits. So in the opinion of the Labour Court, the common cause of action as understood under subsection (10) has not been proper application, for every worker is individually affected. What has been seen by the Court also that always it is the principle of pleadings, what is followed also in the civil suit, the date of the cause of action is to be shown. Why the Court emphasizes that though applications under section 25‑A are of summary nature by the language it is used, that the case be completed within seven days, the person who brings the petition like worker is also to keep in view that statutory limitation in section 25‑A the only proviso he is to face with. It is, therefore, the Court of law is possessed of the fact when the pleadings disclose the cause of action and the date of the notice of grievance, to examine the maintainability of the application of the statutory law of limitation to decide the case even early without going into other aspects, looking to the urgency of the matters of summary nature. The Court may also point out that limitation of seven days, although used in the word "shall" but it appears to be leaning towards the aspect of directory nature, what can be said heavy litigation and impossibility of its completion within seven days. Nevertheless the word "shall" is used. In other words, it is not only the application under section 25‑A or of summary nature by shortening the procedure but also is the time limitation and to be brief and to decide the matter forthwith. However this is a legal aspect of the far reaching importance. The Labour Court has limited jurisdiction of high interpretation, except what Labour Court can observe from the language, it is worded and has bearing on any question involved, such as the case here, of limitation and the non‑disclosing of cause of action.

30. In the result, even if the Court takes the time limitation under the jurisdiction of 25‑A(10), which also has given the reasons, the application still if supposing is maintainable that it was a common grievance, still the merits of the case show that the increases of 13.5% was one time basis of increase and therefore, according to year of amendment, it was to be calculated by the difference as it has been done.

31. Mr. Mahmood Ghani has also referred to the judicial precedent in case of M/s. Kashmir Corner v. Social Security Institution (P L D 1975 Kar. 36). In this decision one of the principle involved was, that the departmental instructions may be used as an aid in interpretation. Rightly Mr. Mahmood Ghani has relied on the opinion of the Ministry of Justice and the Labour Court is also of this opinion that CLA under subsections (1) to (5) of section 3 will not be taken into account for the purpose of calculating increase of 13.5%. Subsections (6) and (7) 1 are to be read in its intention. Application is dismissed. A.E./1216/Lb.S Application dismissed.