' SABIHUDDIN AHMED, J.---In boththese petitions the Constitutional validity of the Sindh Employees Special Allowance (Payment) (Amendment) Act, 1992 has been called in question on a number of grounds. While no factual controversy appears to be involved, it may be mentioned that in 1986 the Provincial Legislature enacted the Sindh Employees Special Allowance (Payment) Act (original Act) section 3 whereof required payment of Rs,50 per month as special, allowance to employees whose wages not exceed Rs,1000. This Act was amended by the 1992 Act (impugned Act) through insertion of section 3-A stipulating that every employee, irrespective of wages being paid to him shall in respect of his employment on or after 1st December 1990 be paid an additional special allowance of Rs,200 per month.
2. It is not disputed that welfare and conditions of labour fall under Item 26 of the concurrent legislative list of the IV Schedule to the Constitution and both the Federal and the Provincial Legislatures have the power to make laws in respective of these subjects.
3. Mr. Abdul SattarPingar learned counsel for the petitioner basically launched a two-fold attack on the Constitutional validity of the impugned legislation. In the first place he contended that the aforesaid legislation was repugnant to certain Federal laws and under Article 143 of the Constitution whenever a provision of Provincial Law was repugnant when Act of Parliament the latter must prevail and the Act of the Provincial Assembly shall whether passed before or after the Act ofParliament will to the extent of repugnancy be void. Indeed there could be no cavil with the above proposition and we therefore, invited learned counsel to identify the Federal laws, which conflicted with the provisions of the impugned legislation. In this context he referred to the following Statutes:--
(i) Section 39 of the Industrial Relations Ordinance which was then in force.
(ii) Section 3 of the Employees Cost of Living (Relief) Act, 1973.
(iii) Sections 5, 6 and 7 of the Minimum Wages Ordinance, 1961.
4. Referring to the Industrial Relations Ordinance (I.R.O.) Mr. Pingar pointed out that the I.R.O. Was designed to regulate the terms and conditions of employment of workers through the process of collective bargaining. It stipulated settlements of disputes including pertaining to wages of workers and section 39 accorded a sanctity to such settlements between employers and collective bargaining agents (C.B.A.) representing workers which would be binding on all workers. He argued that the petitioner No,2 as conscientious employer has been entering into settlements every two years whereby effective reliefs were being provided to workers including compensatory benefits to meet the rise in cost of living. In this context he referred to the Settlement dated 21-8-1991 whereby certain financial benefits were granted to workmen. He also pointed out that under clause (10) of the aforesaid settlement explicitly provided that the increase in wages allowance etc. Agreed upon shall be adjusted against any statutory increase on account of rise in cost of living.
5. Indeed the binding nature of a settlement between employers and the workers through collective bargaining agents cannot be disputed. Nevertheless, it is impossible to seriously argue that one particular employer by resorting to resolution of industrial disputes with his workers through a settlement under L.R.O. Can clog the sovereign power of the competent Legislature from enacting a law designed to provide monetary relief to workers. Reading of the provisions of the I.R.O.Show that 'industrial disputes between workers and employers can be resolved through settlement, conciliation or awards of an Arbitrator. The expression "industrial disputes" however, by its very definition seems to be confined to matters which are not specifically covered by a right available under a law as is and for whose enforcement a different machinery is provided by the Ordinance. As a matter of fact large number of Federal laws conferring monetary and other benefits upon workers such as the Minimum Wages Ordinance, Employees Cost of Living Act, Standing Order Ordinance, Social Security Ordinance, Factories Act, Workmen Compensation Act etc. Are available on thestatute book and the benefits conferred through them can never be the subject. The matter of an industrial dispute or a settlement arrived at pursuant thereto. The rights conferred upon workers under these laws were enforceale either under section 25-A of the I.R.O.
1969 or under the machinery provided for in these special laws. The contention of the learned counsel to the effect that the binding nature of a settlement under section 39 of the I.R.O. Barred beneficial legislation in the area of labour welfare is patently untenable.
6. With reference to clause (10) of the Settlement between the petitioner No,2 and its workers, it may be observed that the terms of the Settlement indeed provided that the relief granted on account of rise in cost of living may be set off against any relief which the Legislature might provide for the same reason during current year of the settlement. Nevertheless, unlike sections 3(4) and 3(5) of the Employees Cost of Living (Relief) Act, 1973, the impugned legislation nowhere states that the relief being granted thereby is intended to compensate workers against rise in cost of living. It could well be designed towards promoting their general welfare and improving their standard of living to some extent. Therefore, the question of set off does not arise at all. One may add that even if the aforesaid relief was granted only for the specific purpose of compensating workers against rise in cost of living, the only course available to the petitioner No,2 could be to approach the competent Authority and seek interpretation of the settlement so as to claim the . Benefit of set off.
In any event there might be several employers not having entered into such settlement and no basis for challenging the vires of the Statute could arise.
7. The next contention of Mr. Pingar was that the impugned legislation was repugnant to Sections 3(4) and 3(5) of the Employees Cost of Living Act, 1973. In this context it may be explained that under section 3 of the originally enacted Cost of Living Act employees drawing wages of less than Rs,735 per month were required to be paid cost of living allowance (C.L.A.) uptoRs,35 till their wages did not exceed Rs,735. Subsequently section 3 renumbered as 3(1) and through amendments made in 1974, 1975, 1980, 1981, 1985 and 1986 subsections (2) to (7) were inserted stipulating additional payments on account of rise in cost of living. It may be added that though payments required to be made under subsections (1) to (3) were not dependent on any condition.
Subsections (4) to (7) did provide that the statutory increase was adjustable against any relief expressly granted to compensate for rise in cost of living in a currently operative settlement. Mr. Pingar argued that since impugned legislation did not stipulate such adjustment it was contrary to the provisions of the Federal Statute i.e, the Employees Cost of Living (Relief) Act, 1973. We regret we do not find any force in this contention either. In the first place a reading of section 3 of the C.L.A.
Act itself shows that the Parliament had itself ordained in its wisdom that certain amounts payable by way of C.L.A. Were not adjustable against an increase on that score granted by employer through a settlement or otherwise while in some cases it was made adjustable. Obviously each payment is to be made according to the terms of the statutory provision and no mutual inconsistency could be found in the various subsections of section 3, on the same principle when the competent provincial legislation chose to grant some relief without providing for adjustment on account of relief granted by the employer it could not be held to be repugnant to a Federal law.
8. For applying the test of repugnancy between a Federal and Provincial law one may refer to the pronouncement of the Honourable Supreme Court in Cantonment Board Peshawar v. District Sanitary and Food Inspector (1993 SCM R 941) which incidentally was cited by Mr. Pingar himself. In a simple sentence their Lordships described the yardstick as follows:-- "The test of the repugnancy is that the two provisions of law are irreconcilable."
9. Applying the above test we do not think any case of repugnancy can be made out. The allowances payable under the impugned legislation as well as those under sections 3(1) to 3 (3) are payable irrespective of any relief granted by the employer or available under a settlement while those under sections 3(4) to 3 (7) may be adjustable against the terms of settlement. All provisions can be harmoniously reconciled.
10. Learned counsel further argued that the impugned legislation was repugnant to sections 5, 6 and 7 of the Minimum Wages Ordinance. Section 5 enables the Provincial Government whenever it thinks expedient to regulate the wages in a particular industry and where no adequate machinery for such regulation exists, direct the Board (Minimum Wages Board) to make recommendations after appropriate enquiry. Under section 6 the Government upon the recommendations of the Board may notify the rates of minimum wages payable to workers in a particular industry and under section 7 the Board could undertake periodical review of minimum wages and make recommendations to the Government. Mr. Pingar attempted to argue that rates of wages could only be revised on the recommendations of the Board under a Federal law and therefore, the impugned legislation is hit by Article 143 of the Constitution.
11. We regret we find this contention equally fallacious. Ex facie the Ordinance only enables the executive Government to notify and enforce payment of a minimum amount as wages but could never be treated as a bar on legislative power to enact a law conferring monetary benefits upon workers. The plenary power of the Legislature to make laws is regulated by the Constitution and could under no circumstances be considered dependent on the recommendations of a body constituted under a sub-Constitutional statute. The logical conclusion emanating from Mr. Pingar's arguments would be that even a large number of Federal statutes conferring monetary benefits upon workers will have to be declared void for being enacted without recommendations of a Provincial Minimum Wages Board.
12. Finally it was argued that the impugned legislation was void on account of being repugnant to Article 18 of the Constitution in as much Gas it affected the petitioners' right to carry on lawful trade or business. We are afraid we find no force in this contention either. The right guaranteed under Article 18 is always subject to regulation in the public interest. By the token suggested all laws imposing taxes on industrial and commercial activities could be questioned on the ground of being violative of Article 18. Mr. Pingar was unable to refer to any judgment from any Court in Pakistan or elsewhere (where such right is guaranteed) to show that a law designed to provide certain benefits to workers was struck down on this ground. No material has been placed on record to indicate that the impugned legislation is confiscatory and would disable I the petitioner from carrying on their present business. In Annoor Textile Mills Ltd v. Federation of Pakistan (1994 PLC 388) a challenge to section 6 of the Minimum Wages Ordinance revising rights of minimum wages to unskilled workers from Rs,140 to Rs,1500 on the ground of being repugnant to Article 18 was repelled. For the foregoing reasons we found no substance in these petitions and dismissed them with cost vide our short order dated 11-8-2004.