1986 PLP 540 (PLC)

(iii) That the proviso to section 4 of the Ordinance, 1968 can only be pressed into service if it can be pointed out that the Schedule to the Ordinance provides an item of daily allowance. (iv) That the learned Labour Court has wrongly invoked the provision of Payment of Wages Act (hereinafter referred to as the Act) as travelling allowance has been expressly excluded from the definition of Act in clause (vi) of section 2.

4. In our view, the basic point for consideration is, as to whether rules are applicable to the petitioners or not. In order to appreciate it may be advantageous to reproduce the same, which read as under: ‑ Rule‑30. "Conveyance supplied by Corporation: (i) Short journey from Headquarter. ‑‑When an employee travels by conveyance owned by the Corporation and the journey is beyond 10 Kilometres he will be entitled to draw daily allowance of his grade for any day on which he is absent from his headquarter on official duty for more than six consecutive hours and return to his headquarters the same day. (ii) Journeys during tour.‑‑When on journey other than a journey by railway, an employee uses a means of locomotive provided at the expenses of the Corporation he may draw the daily allowance of his grade, and may not exchange it for mileage. Rule

40. Daily Allowance: (i) A daily allowance is a uniform allowance for each day of absence from headquarters and is intended to cover the ordinary daily charges incurred by an employee in consequence of such absence. Subject to the provisions of Rule 46, it is expected to cover the elements of lodging, board, transport and incidental expenses. However, if the nature of duty involves lot of travelling from one place to another i.e. collecting quotations, purchasing, attendance in Courts and seeking legal advice of Advocates, etc., then in such cases, taxi charges can be allowed by the competent authority at their own discretion, keeping in view general conditions and practice of station concerned and depending upon nature of duty and status of the touring employees." A plain reading of the above quoted rule 30 indicates that it is only applicable to an employee who travels by a conveyance owned by the Corporation and the journey is beyond 10 Killometres. In our view a driver driving a school bus cannot be said to be travelling in a conveyance provided by the P.M.D.C. The above view also gets support by the above quoted rule 40 particularly by sub‑para. (2) of rule 40 which provides that if the nature of duty involves lot of travelling from one place to another i.e. collecting quotations, purchasing, attendance in Courts and seeking legal advice of Advocates, etc., then in such cases, taxi charges can be allowed by the competent authority at their own discretion, keeping in view general conditions and practice of station concerned and depending upon the nature of duty and status of the touring employees.

5. This lead us to the second limb of the argument of Mr. Muhammad Aslam Chishti that the learned Labour Appellate Tribunal being a competent forum to place a particular construction on the above quoted rules and that even if this Court might have taken a different view as to the interpretation of the above rules, this would not warrant interference by this Court in exercise of Constitutional Writ Jurisdiction. The above contention has force as it has been held by the superior Courts including the Honourable Supreme Court of Pakistan that al Tribunal having jurisdiction can decide rightly or wrongly. In this regard reference may be made to the case of Muhammad Hussain Munir and others v. Sikandar‑and others P L D 1974 S C 139.

6. Apart from the above legal position we are also inclined to take the same view as was found favour with the learned Labour Appellate Tribunal namely that the above quoted rules are not applicable to the petitioners' case.

7. As regards the application of the proviso to section 4 of the Ordinance, it may be pertinent to refer to section 4 which provides as follows: ‑

4. Modification of Standing Orders.‑‑The standing Orders may be modified by means of a collective agreement and not otherwise. Provided that no such agreement shall have the effect of taking away or diminishing any right or benefit available to the workmen under the provisions of the Schedule".

8. A perusal of the above quoted section indicates that the Standing Orders provided in the Schedule to the Ordinance can be modified by means of collective agreement and not otherwise. But there is an embargo on the above power and that is that no such agreement should have the effect of taking away or diminishing any right or benefit available E to the workmen under the provisions of the Schedule. The above proviso can be invoked in aid if any right or benefit is available to a workman under the provisions of the Schedule. In other words if the disputed item has not been provided for in the Schedule, the above proviso is not applicable.

9. Mr. Tariq Mahmood learned counsel for the petitioner is unable to refer any of the provisions in the Schedule to the Ordinance providing daily allowance. The only provision available is para 10, which speaks of "any payment of wages". There is no definition of the term "Wages" given in the Ordinance. Reference may be made to clause (vi) of E section 2 of the Act which expressly exclude travelling allowance from the ambit of the definition of wages.

10. Adverting to the contention of Mr. Tariq Mahmood that the respondent has been paying daily allowance to the other drivers and, therefore, there is no justification for the respondent to decline in the case of the petitioners, it may be observed that Charter of Demands submitted by the Collective Bargaining Agent contained demand No. 24(A) as follows: ‑ "DEMAND NO. 24(A). Drivers doing duty outside Degari may be paid T. A. /D. A. The above demand has been settled in terms of the settlement arrived at between C.B.A. and the employer in the following terms: ‑ "AGREEMENT It is agreed that those Drivers who are not specifically attached with Bus and School Vans, whenever proceed on official duty to Quetta will be paid D. A. as per P.M.D.C. T.A. Rules." The payment has been made by the respondent to the other drivers not by virtue of rules but because of the above settlement. The fact that the above settlement provides that the D.A. would be paid only to those drivers who are not specifically attached with school bus and vans clearly indicates that the drivers who are specifically attached to the school bus or vans are not entitled to claim daily allowance. The above settlement also supports the contention of Mr. Muhammad Aslam Chishti that if the rules would have entitled the drivers to claim daily allowance, there was no occasion for the C. B. A. to raise a demand in h the charter of demand in the above terms quoted hereinabove. Admittedly the petitioners are receiving overtime allowance they cannot claim Daily Allowance even on that score.

11. We, are, therefore, inclined to hold that the petition has no merits and it is dismissed but there would be no order as to costs. A.A. Petition dismissed.