1976 PLP 34 (PLC)

2. 1n brief the facts of the case are that petitioner is a registered Trade Union and also Collective Bargaining Agent for the workers working in the Security Papers Limited, Jinnah Avenue, Malir, Karachi.

3. In 1973 an ordinance known as Employees Cost of Living (Relief) Ordinance 1973 (hereinafter called the "Ordinance") was enacted. It was promulgated on 17‑9‑1973 and was made effective from 1‑8‑1973. Section 3 of this Ordinance which makes a provision for the payment of cost of living allowance reads as under: ‑ Section

3. Cost of living Allowance.‑Every employee shall, in respect of his employment on or after the first of August, 1973, whether on time work or piece‑work basis, be paid by his employer a cost of living; allowance‑ (a) equal to thirty‑five rupees per month if his wages do not exceed seven hundred rupees; or (b) at such rates as, together with his wage, makes a total of seven hundred thirty‑five rupees per month, if his wages are more than seven hundred rupees."

4. On 7‑5‑1973 the petitioner submitted a charter of demands to the second respondent which contained several demands including the demands for the revision of pay scales and dearness allowance of Rs.

50. This charter of demands concluded into a mutual settlement on 6‑8‑1973 and it provided that it would come into force with effect from 1‑4‑1973. Among others, a settlement for the revision of pay scales was also effected between the parties which reads as under: ‑ Revision of Scales of pay.‑The grades of all workmen shall be revised ire the manner that each workman may get a benefit of Rs. 40 per month increase in his basic wage with effect from 1‑4‑1973. The revised scale of wages shall incorporate all other existing allowances such as special increase of Rs. 25 from 1‑7‑1970 etc. The revised pay scales shall apply only to permanent workmen who were on Company's pay roll on 1‑4‑1973. The date of next increment of all workmen in the revised grades will be taken as 1st April each year.

5. After the coming into force of the ordinance the petitioner wrote a letter to the second respondent on 2‑10‑1973 demanding that the cost of living allowance of Rs. 35 should be paid to them. The second respondent refused to pay the same on the ground that an increase of Rs. 40 had already been made in the salaries of the workers' vide agreement referred to above, and they were therefore exempted from making the payment of the said allowance under section 8 of the Ordinance. Thereupon the petitioner moved the IV Sind Labour Court under section 34 of Industrial Relations Ordinance, 1963 for the enforcement of their right to receive the cost of living allowance. The Labour Court decided the case and held that firstly the petitioner was not entitled to receive the said allowance on the ground that an increase of Rs. 40 had already been made in the salaries of the workers and secondly the Court had no jurisdiction to entertain the matter as the claim for recovery of cost of living allowance was entertainable only by the authority referred to, in section 6 of the Ordinance.

6. The contention of the learned counsel for the petitioner is that the cost of living allowance was not covered by the increment of Rs. 40 per month given to the workers by dint of the settlement of their demands as this amount was paid to them as against their demand for the revision of scales of pay. Elaborating his argument, he further contended that the revision of the scales of pay was not intended to provide relief necessitated due to increase of cost of living as is evident from the language of the settlement in respect of the demand of revision of scales of pay. It is absolutely silent about the dearness allowance. The perusal of the demand and the settlement would show that there was an independent demand for dearness allowance of Rs. 50 per month which demand was incorporated in the charter of demands at serial No.

2. No settlement was effected between the parties on this demand and that is why the settlement is silent as far as the decision on this demand is concerned. Even under the heading of the settlement of the demand for revision of scales of pay it has not been said that the amount of Rs. 40 was being paid by way of dearness allowance as well as the revision of scares of pay. Apart from this, the increase of Rs. 40 in the settlement was given only to the permanent workers whereas the cost of living allowance was payable to all the workers irrespective of the fact whether they were permanent or temporary employees. Besides this, it has also not been' said as to which category of workers it pertained. In fact a rise of Rs. 40 per month was given to all the permanent workers which included these workers also who were getting salaries of more than Rs. 700 per month. It is so because the settlement provided for the re adjustment of the scales of pay in such a manner that all the permanent workmen may get a benefit of Rs. 40 per month irrespective of their salaries. On the other hand the cost of living allowance made a provision of payment of Rs. 35 per month only for those workers who were not drawing more than Rs. 700 per month. Rs. 35 given by way cost of living allowance under the Ordinance were also not to increase other facilities such as bonus and gratuity etc., whereas Rs. 40 allowed under the said settlement were to form part of the wages and were liable to proportionately increase the rate of bonus, gratuity, and other benefits available to the workers. In fact while entering into these settlement with the workers the second respondent could not conceive of the enactment or any law in future providing for the cost of living allowance and therefore neither any settlement was made on the demand for dearness allowance nor it was mentioned in the agreement that the y negotiations had failed on this demand. The workers did not also press for any more pecuniary benefits because they were getting an increase of Rs. 40 in their salaries with which they were contended for the time being. The arguments of the learned counsel for the second respondent is that the increase of Rs. 40 was made by way of package deal and it covered the petitioners demand for the revision of scales of pay as well as the demand for the dearness allowance. This argument is fallacious on the face of it. It is evident from the plain reading of the settlement that out of the demands resulting into the pecuniary benefits to the workers only the demand of revision of scales of pay was settled by the parties while the demand in respect of dearness allowance either remained unsettled or was rot pressed. If the settlement of demand for revision of pay scales had included the settlement of the demand for dearness allowance also there is no reason why it would not have been specifically mentioned in the settlement that the increase of Rs. 40 was being allowed to meet both the demands of the workers. The settlement being silent about it in this respect, it cannot be said that the increase of Rs. 40 was by way of dearness allowance also and therefore the second respondent was exempted under proviso to section 8 of the Ordinance from payment of the cost of living allowance of Rs. 35 to the petitioner.

7. The main argument of the learned counsel for the second respondent is that under section 6 of the Ordinance the jurisdiction of the Labour Court was barred and each worker should have separately approached the authority mentioned under this section for the recovery of the said allowance. According to him, the claims for recovery lie only to the authority mentioned under section 6 as this section provides that in cases where the cost of living allowance of any employee has been withheld or delayed such worker himself or through any other person authorized by him in this behalf may apply in the case of an establishment to which the West Pakistan Shops and Establish ments Ordinance, 1969, for the time being applies, to the authority appointed under subsection (f) of section 12 thereof having jurisdiction in the matter. He has further argued that the Labour Court had rightly held that due to the bar of section 6 of the Ordinance he was not competent to adjudicate the matter. On the other hand the learned counsel for the petitioner has argued that section 6 would apply only in such cases where an employer withholds or delays the payment of the cost of living allowance although in principle he admits his liability to pay the same and not in those cases where the right of the workers to receive this allowance has been denied from the very inception as has happened in this case. According to him, in such cases the workers could approach the Labour Court under section 34 of the Industrial Relations Ordinance, 1969, through their Collective Bargaining Agent Union.

8. I have examined the contentions of both the parties. Section 6 of the Ordinance provides for the recovery of the cost of living allowance where it has been withheld or its payment has been delayed by the employer, It does not provide for an award in such cases where right of the workers to receive this allowance has been denied. Since in this case the entitlement of the workers to receive the cost of living allowance was questioned therefore they were justified under law to approach the Labour Court under section 34 of Industrial Relations Ordinance, 1969. Section 34 provides for the enforce ment of all the rights guaranteed or secured to the workers under any law, award or settlement. It reads as under: ‑ Section

34. Application to Labour Court.‑Any Collective Bargaining Agent or any employer may apply to the Labour Court for the enforce ment of any right guaranteed or secured to it or him by or under any law or any award or settlement.

8. The plain reading of this section makes it crystal clear that where any right has been guaranteed or secured to the worker or an employer by virtue of any law, award or settlement the affected party may seek the enforcement of such right through the Labour Court. The petitioner was therefore justified in approaching the Labour Court for the enforcement of the workers, right to receive the cost of living allowance.

9. The learned counsel for the second respondent again referred to the judgment of the Labour Court and argued that the observations of the Labour Court as regards the petitioners' right to receive cost of living allowance were only obiter against which no writ petition lies. According to him, the petition was dismissed on the sole ground that Labour Court had no jurisdiction to deal with the matter due to the mischief of section 6 of the Ordinance. I am unable to agree with this contention. In fact the Labour Court has dealt with the question of entitlement of the petitioners to receive the cost of living allowance by specifically framing an issue on this point, Its observations on this point are out merely obiter but an express finding and a writ can be entertained against the same if otherwise maintainable.

10. The learned Labour Court was misdirected in holding that by virtue of the proviso to section 8 of the Ordinance the second respondent was exempted from paying Rs. 35 by way of cost of living allowance to the petitioners a9 under the settlement which was effective from 1‑4‑1973 an increase of Rs. 40 had already been given to the workers. There is not an iota of evidence on record to show that increase of Rs. 40 in any manner covered the cost of living allowance. In fact at the time when the settlement in question was arrived at between the parties the Ordinance bad not yet formed part of the statute book, and therefore, as I have observed earlier, they could not conceive of the idea that in future there was any likelihood of an ordinance coming into force to provide for the dearness or cost of living allowances. Only a monetary benefit by way of revision of scales of pay was given to the petitioner with which they also felt contended. The Labour Court had no material, whatsoever, before it to hold that the cost of living allowance was covered by Rs. 40 allowed to the workers by way of revision of scales of pay in the settlement.

11. For the reasons given above, the petition in allowed with costs. Petition allowed.