1992 PLP 1128 (PLC(CS))

Messrs Sethi Straw Board Mills Ltd. v. Punjab Labour Court No. 3, Lyallpur and 2 others 1976 P L C 901 rel. Muhammad Saleem Khan for Appellant Wasi Ahmed, Representative for Respondents. Date of hearing: 26th November, 1990. This is an appeal against the order, dated 28-9-1989, passed by the learned Presiding Officer, Sindh Labour Court No. III at Karachi, whereby the grievance petition of the appellant was dismissed.

2. The brief facts of the case are that the appellant was admittedly a workman empl9yed with the respondents. He filed a grievance petition after serving the grievance notice upon the respondent for payment of difference of the amount of bonus for the years 1986 and 1987. ???????

3. I have heard Mr. Muhammad Saleem Khan, learned Advocate for the appellant and Mr. Wasi Ahmed, learned Representative for the respondents and have also gone through the record and proceedings of the case.

4. The admitted facts of the case are that on 25-9-1986, a settlement was reached between the respondents and the C.B.A. Union under which an amount of Rs.1,000 was to be paid as bonus to each of the workmen. This agreement was valid for two years. The bonus for the year 1986 was paid on 4-2-1987 and the bonus for the year 1987 was paid on 8-2-1988. The appellant served grievance notice upon the respondents on 16-2-1988 claiming difference of bonus payable to him under Standing Order 10-C and the bonus paid to him under the settlement for the years 1986 and 1987.

5. Mr. Saleem Khan, the learned Advocate for the appellant had conceded that his claim for the year 1986 was time-barred and has prayed only for the payment of difference of bonus for the year 1987.

6. Under Standing Order 10-C, employer who makes profit in any year shall pay the amount of bonus not less than the amount of one month's wages of a workman. Whereas under the settlement bonus was fixed at Rs.l,000 though the wages of the workman may be above Rs.1,

000. Mr. Saleem Khan, the learned Advocate for the appellant has relied upon section 4 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance,' 1968 (hereinafter called the Ordinance). This section provides as under:- "Modification of Standing Orders-- The Standing Orders may be modified by mean 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." The mere reading of this section would show, that even by an agreement by the C.B.A., the rights conferred by the Ordinance cannot be diminished. The right to receive the bonus under Standing Order 10-C is conferred upon the worker. If he draws the wages for more than Rs.1,000 his right is diminished by this settlement and, therefore, this settlement so far it violates the provision of section 4 of the Ordinance would not be legal or effective. Mr. Wasi Ahmed, the learned representative for the respondents has relied upon section 39 of the Industrial Relations Ordinance; 1969 under which the settlement arrived at in the course of the conciliation proceedings, would be binding upon all the parties to the dispute. The settlement referred to in section 39 of I.R.O.. 1969 1 would be a settlement which is a legal settlement and not a settlement which is violative of Standing Orders Ordinance. It is a settled Law that no employer can contract out of the provisions of Law. Reference may be made to PLD I 1980 SC 323.

7. The next question that requires consideration is that what would be monthly wages of the appellant who is not a monthly paid worker but he is paid wages at piece rate basis. In this context, Mr. Saleem Khan has relied upon the Standing Order 12(6) which lays down the procedure on the basis of which the gratuity equivalent to 20 days wages had to be paid in the case of piece-rated workers. It has been laid down therein that such gratuity shall be paid to piece? rated workmen at highest pay drawn by him during the last 12 months. However, the appellant does not claim bonus on the basis of highest wages drawn by him in any month in the year 1987, but, claims one month's bonus on the basis of average of total wages earned by him in the 12 months in the year 1987. According to him, which statement is not challenged in his cross-examination, his average wages on piece-rated basis in the year 1987 were Rs.2,483.33. Mr. Wasi Ahmad has further raised the objection that the appellant himself was the signatory to the settlement and, therefore, he could not go back on the settlement and claim bonus in excess of the amount provided under the settlement. The bonus is awarded under the law and it is a settled law that there is no estoppel against the law. Reference may be made to the case of Messrs Sethi Straw Board Mills Limited v. Punjab Labour Court No.3, Lyallpur and 2 others, reported in 1976 PLC 901; wherein a learned Single Judge of Lahore High Court has held that "there is no estoppel against Statute."

8. In view of the above factual position, I would set aside the impugned order and allow the appeal to the extent that the appellant be paid difference in the amount of bonus paid to him i.e. Rs.1,000 and the amount of Rs.2,483.33 which were his average monthly wages for the year 1987. The respondents are, therefore, directed to pay an amount of Rs.1,483.33 to the appellant within one month from the date of this decision. M.Y.H./1795/Lb.S????????????????????????????????????????????????????????????????????????????? Appeal allowed.