1976 PLP 187 (PLC)

(2) If according to any term or condition laid down by the Gazette Notification the workers are liable to return the amount or any part thereof, it would be recovered in two instalments. First instalment will be adjusted from the pay of the month in which the Gazette Notification is issued and the second instalment would be adjusted from the pay of the second month. (3) A settlement had already been reached between the Management and the Union on 17th June 1974. Consequently the amount of Rs. 50 per month shall have no effect on the previous settlement. There is no connection between the two.

5. Subsequently, Employees' Cost of Living Allowance Amended Act, 1974 was passed and published in the Extraordinary Gazette, dated 10th September 1974. Section 8 of the aforesaid Act is relevant. It reads as under: - Saving of certain rights and privileges.-Nothing in this Act shall affect any right or privilege to which an employee was entitled,

(a) in the case of the cost of living allowance payable under subsec tion (1) of section 3, immediately before th: commencement of the Employees' Cost of Living (Relief) Ordinance, 1973 (XXII of 1973), or (b) in the case of the cost of living allowance payable under subsection (2) of section 3, immediately before the commencement of the Employees' Cost of Living (Relief) (Amendment) Act, 1974, under any law for the time being in force or under any award, decision, agreement, settlement, contract, custom or urage in force immediately before such commencement: Provided that, if, at any time commencing on or after the first day of August 1973 but preceding the commencement of the said Ordinance or, as the case may be, commencing at or after the commencement of the said Ordinance but preceding the commencement of the Employees' Cost of Living (Relief) (Amendment) Act, 1974, any employer has paid, or become liable to pay, whether by virtue of an award, decision, agree ment, settlement, contract, custom or usage, to any employee, in r1apect of any period, any sum of money, which is intended to provide relief due to a rise in the cost of living, such employer shall not be required to pay to such employee in respect of such period any amount in excess of the difference, if any, between the amount so paid by him or the amount which he has so become liable to pay, and the cost of living allowance payable to such employee. Explanations.-For the purposes of this proviso, any increase in wages accruing by virtue of the usual annual increment or promotion to a higher grade, or an allowance not specifically given to provide relief due to a rise in the cost of living, shall not be deemed to be an increase intended to provide relief due to a rise in the cost of living.

6. The Management had been paying the amount of Rs. 50 per month as per agreement dated 19th July 1974 and it was paid up to January 1975 but the Management intended to adjust the amount on the basis of the Proviso to the section but this was not agreed to by the Union. Consequently, the Management made the present reference.

7. At the outset of the arguments I asked the learned counsel for the Management as to which of the financial benefits were intended to be adjusted by the Management. He confined himself to clauses Nos. 4, 6, 9 and 10, which read as under: (4) General Wage Increase.-Management has agreed to give general wage increase to workers employed on daily wages at 50 paisas per day per worker. In case of fixed salaried employees, an overall rise of Rs. 13 per month has been agreed by the Management. This wage increase will be available only to those workers and employees who have completed one year service on the date this agreement comes into effect. (6) Washing Allowance.-The Management had agreed to pay Rs. 2 per head per month as washing allowance for uniform to those workers and employees who have been provided with uniforms. The Union guarantees and assures that these employees and workers who have been supplied with uniform, would attend their duty in uniform only and in cases where uniform is not being properly used, the allowance and future supply of uniform in respect of such workers or employees would be withdrawn. (9) Attendance Allowance.-All workers including those who are being paid Rs. 5 per bead per month as attendance allowance. The Manage ment has agreed to increase this amount to Rs. 12.50 per head per month in respect of daily wage workers, with the following conditions, viz.: (a) That a worker remaining absent for 3 days with authorised leave would be entitled for this allowance and any worker remaining absent for more than 3 days even with authorised leave would forfeit the same. (b) Any worker who absents himself even for one day without an authorised leave shall forfeit the allowance. (c) Any worker arriving late for 15 minutes for more than 3 days in a month will forfeit his attendance allowance. (10) Conveyance Allowance.-The workers are being paid Rs. 5 per head per month as conveyance allowance. The Management has agreed to increase the same to Rs. 10 per heard per month in respect of all workers only who were previously entitled for conveyance allowance of Rs. 5 as well as fixed salaried workers except those who are availing of company's transport.

8. On consideration of the arguments advanced before me in the light of section 8 of the Employees' Cost of Living (Relief) Act, I am of the view that the contention of the Management cannot be supported. Proviso to section 8 requires that reduction can be allowed only if the earlier relief guaranteed by the Management was intended to provide relief due to a rise in the cost of living. This must be read with the explanation which lays down A that an allowance not specifically given to provide relief due to a rise in the cost of living, shall not be deemed to be an increase intended to provide relief due to a rise in the cost of living. There is nothing in the settlement that the aforesaid benefits were allowed due to the rise in the cost of living. Not only this but even the perusal of the aforesaid financial benefits do not support the Management. Clause 4 refers to general wage increase and this was allowed only to those workers and employees who had completed one year of service on the date the agreement came into effect. Apparently no relief was granted to the workers who had put in less than one year in service. 1t is, therefore, evident that the increase in pay was not granted due to the rise in the cost of living. Clause No. 6 relates to washing allowance but this too was granted to those workers who were supplied with the uniforms and not to all workers. Clause No. 8 is in respect of heat allowance and this too was confined to a particular class of workers. Similarly attendance allowance as per clause 9 and conveyance allowance as per clause 10 were also confined to certain categories of workers. It is, therefore, plain that these benefits were not extended to all the workers. So it is not possible to presume that they had been granted as a relief due to rise in the cost of living.

9. Moreover, although the last para of the first settlement conferred the right of adjustment upon the Management but clause 3 of the second agreement clearly excluded it as it was stated in unmistakable terms that the amount of Rs. 50 as cost of living allowance would not affect the previous settlement and there was no connection between the two This very clause repels the contention of the Management that the relief granted by the previous settlement was liable to be adjusted.

10. In the result the reference is rejected.