1987 PLP 25 (PLC)

(2) Whether the applicants have locus standi to maintain the present application? (3) Whether this authority has jurisdiction in the matter? (4) Whether the applicants are entitled to Cost of Living Allowances as claimed by them in terms of Employees Cost of Living Relief Act? (5) What should the order be? The opponent filed application under Order VII, Rule 11, C.P. C. on 9‑6‑1983, for rejection of plaint. After hearing the parties, the application under Order VII, Rule 11, C.P.C. was rejected. On 25‑11‑1984, the opponent filed another application for impleading the Finance Department Government of Sind, which was also disallowed vide detailed order, dated 26‑9‑1984. The General Secretary of the applicant Union was tendered in evidence, while one Muhammad Ibrahim was examined on behalf of the opponent. Parties filed their written arguments. I have gone through the material on record and my findings on the issues with reasons therefor are given, as under:‑ Issues Nos. 1, 2 and 3: The learned Advocate for the applicants referred to section 6(b) of the Employees Cost of Living (Relief) Act, 1973, and contended that by virtue of this provision the 'Authority' under Payment of Wages Act, has specifically been empowered to entertain the claim of the nature, arising out from the non‑payment of the allowances. He further submitted that admittedly the claim preferred by the applicants is for the recovery of the allowances, under the provisions of the aforesaid Act. Therefore, this 'Authority' has the jurisdiction to try the matter. It will be advantageous to reproduce the aforesaid section relied upon by the learned counsel:‑ "Where contrary to the provisions of this Act, the cost of living allowance of any employee has been withheld or delayed such worker himself, or through any other person authorised by him in this behalf may apply‑‑ (b) in any other case, to the Authority appointed under subsection (1) of section 15 of the Payment of Wages Act, having jurisdiction and provisions of the said section and sections 6, 16, 17, 18, 19, 22, 23 and 26 of the said Act shall so far as may be and with the necessary modifications, apply for the purpose of recovery of the cost of living allowance." Mr. Rizvi, learned counsel‑for the opponent has filed a copy of the unreported judgment, dated T‑2‑1986 of a learned Single Judge, Sukkur Bench of Sind High Court wherein it was held that employees of petitioner Government (i.e. Irrigation and Power Department) are not covered under the definition of 'Employees' as given in the Act, and as such are not entitled Jo the allowances, and 'Authority under Payment of Wages Act is not competent to grant the relief. On the other hand, Mr. Bashir Awan, learned Advocate for the applicants cited 1986 P L C 941, which is a latest decision of Sind High Court, Karachi, wherein while construing the various provisions of the aforesaid Act, the Hon'ble Judge held that the claimants are covered under the definition of 'Employee' as given in the Act, and are entitled to the payment of allowance and the Authority notified under the Payment of Wages Act, is the proper forum to grant the relief. His Lordship consequently dismissed the writ petitions filed by the Government of Since in Irrigation and Power Department. The submissions of Mr. Awan are that the ruling of Sukkur Bench is earlier one while ruling of Karachi is latest one, therefore, the Authority has to follow the Karachi case‑law. In view of this position, I answer the issues in affirmative. Issue No.4: The learned Advocate for the applicants referred me to the cross -examination of the opponent witness, in which he admitted that neither the allowances in question have been paid to the applicants nor any provisions, in lieu, thereof, has been made in the Budget estimate, and contended that these were the only two conditions prescribed in the Act for excluding the applicants from the definition of the 'Employees' as given in the Act. As these conditions have admittedly not been fulfilled by the Government, alternatively, the applicants, will fall back in the definition of ‑the 'Employees' and would be entitled to the relief as claimed. He further contended that the objections of the opponent side were fully dealt with in the aforesaid judgment 1986 P L C 941 and it was held that the workers in the circumstances, will be entitled to the payment of the allowances. The opponent side has heavily relied upon and based the stand on the judgment of Sukkur Bench, which has impliedly been superseded, by the Karachi case. Consequently I hold that the applicants are entitled to the relief claimed. In view of the above discussions, I allow the application /claim of the applicants and direct the opponent to deposit the amount of Rs.3,75,840 (Rupees three lacs seventy‑five thousand, eight hundred forty only) in this Court, within thirty days hereinafter for disbursement to the applicants. A.A. Application allowed.