MUHAMMAD HABIBULLAH, J.-This Intra-Court Appeal is directed against an order dated 5th August, 1973, made by a learned Single Judge of this Court, whereby he dismissed Writ Petition No, 3170 of 1975 filed by the appellant-Company, namely the Attock Oil Company Ltd. This order will also dispose of the cross-objections filed by respondent No, 2, namely, United Union of Attock Oil Employees (hereinafter called the Union), which cross-objections have erroneously been registered separately by the office as I.-C. A. No, 211 of 1978.
2. This appellant's writ petition was directed against an order made by the Senior Member, National Industrial Relations Commission, Islamabad, which was published in the Extraordinary Gazette of Pakistan on 6th December, 1975, whereby the Senior Member, exercising powers to regulate wages and other conditions of service of workers under the Pakistan Essential Services (Maintenance) Act (LIII of 1952), made a regulation whereby an additional Cost of Living Allowance of Rs, 25 was directed to be paid to each employee with effect from 1st February, 1975.
3. Before stating the points which are in controversy in this appeal, the background of the dispute between the parties may be examined. The Union, in its capacity as the Collective Bargaining Agent of the employees of the Company has been raising and resolving disputes with the Company about the terms and conditions of service of the employees, by mutual settlements or awards. One such dispute was settled by agreement dated 3rd June, 1974, arrived at between the parties before the Central Labour Commissioner. The agreement was notified on 28th June, 1974, under rule 3 (3) of the Pakistan Essential Services (Maintenance) Rules, 1952, in the form of "Directions" of the Central Labour Commissioner. Through this agreement the Company granted several reliefs to its employees, including increase in pay scales, gratuity and provident fund.
According to the agreement the increase was allowed in view of the increase in the cost of living.
4. Prior to the agreement, the Government had introduced statutory cost of living allowance for workers by promulgating Employees Cost of Living (Relief) Ordinance, XXII of 1973, which Ordinance was substituted by Act 1 of 1974, St4till roughly, this legislation directed a cost of living allowance amounting to Rs, 35 per month to be paid to most employees. This Act was subsequently amended by Act XLVII of 1974 and then by Act LXI of 1975. The effect of these amendments, again stating roughly, was the grant of additional benefit of Rs, 50 and Rs, 35 per month respectively, as additional cost of living allowance. However, proviso to section 8 of the Act prescribed that if an employer during the period stipulated in the proviso, had paid or become liable to pay any sum of money "which is intended to provide relief due to a rise in the cost of living", he would be entitled to adjust the same against the prescribed cost of living allowance.
5. The aforesaid agreement dated 3rd June, 1974, made between the parties, which provided for an increase in workers' emoluments contains the following clause : "1.-(d) The aforesaid increase will be liable to adjustment against any increase subsequently announced by the Government."
6, The Company interpreted the agreement and the legislation providing for cost of living allowance to mean that the increase in pay scales that it had allowed by the agreement was to be deducted from the statutory allowance of Rs, 50, and the Management accordingly issued Circular No, 339 dated 23rd September, 1974 in this behalf.
7. The Union raised a dispufe by filing an application under section 6 of Pakistan Essential Services (Maintenance) Act, 1952, before the Chairman Industrial Relations Commission, complaining that the issuance of circular by the Company and the deduction from employees' statutory allowance were illegal, and demanding in addition the payment of bonus under Standing Order 10 (c) of West Pakistan Industrial and Commercial Employment Standing Orders Ordinance, 1968. The prayer made in the application was for issuance, of directions regulating the wages and other terms and conditions of service of the employees. The Commission gave its decision dated 30th August, 1975 which was notified on 6th December, 1975, in which Circular No, 339, which the Company had issued, was regarded as correctly interpreting the provision relating to deductions from statutory cost of living allowance, and the Union's demand for separate statutory bonus was also rejected.
However, the Member expressed in his order as follows : "But one cannot be oblivious of the fact that this authority at present is acting under the Essential Services Act which is a special law and by virtue of section 6 thereof, this authority has power to regulate wages and other conditions of service of the employees of the Company if the circumstances so require and such powers in no manner are restricted by Act I of 1974. Looking at the petitioners' demand one cannot ignore the impact of day to day rising prices upon the living conditions of the, working class and this is fully borne out by the three reliefs provided by the Government from time to time between 1973 and 1975. The anxiety of the workers of getting any further increase in their wages can, therefore, be easily understood. Keeping this factor in mind, I think this authority will not be doing any injustice to the Company if additional relief to the workers is provided to meet the inflationary tendency of the present days to some extent. It is, therefore regulated as under :- REGULATION Every employee, who by virtue of his wages would otherwise be entitled to the payment of Cost of Living Allowance under subsection (1), (2) or (3) of section 3 of the Employees Cost of Living (Relief)
Act 1973 (Act 1 of 1974) shall be paid by the Company, an additional cost of living allowance equal to Rs, 25 (twenty-five) per month, effective from 1st February, 1975. This additional cost of living allowance shall not be subject to any adjustment and shall be payable irrespective of any relief received by an employee at any time under the abovesaid Act I of 1974 as amended up-to-date."
8. This order was challenged by the Company by filing Writ Petition No, 3170 of 1975 and by the Union by filing Writ Petition No, 931 of 1976. Both the writ petitions were dismissed on the same date.
The Union's Writ Petition was dismissed by making a reference to the order made in the Company's Writ Petition, which deals with all the controversies between the parties. The appellant's case in his writ petition was that the Member, under the circumstances of this case, was not empowered to grant an increase of cost of living allowance amounting to Rs, 25 per month for each worker. The Union's case in its own writ petition was that no deductions could be made by the Company from the cost of living allowance statutory granted to workers, and that they were in addition, also entitled to the payment of one month's statutory bonus.
9. After the dismissal of the Writ Petitions only the appellant-Company filed an appeal. The respondent Union filed cross-objections in this appeal under Order XLI, rule 22, C. P. C. Alongwith these cross-objections the General Secretary of the Union submitted an affidavit in which it is stated to the effect that the cross-objections were being filed after receipt of notice of the appeal, and to avoid the question of limitation which could be raised if the Union filed an appeal. It is also stated in the affidavit that an application for obtaining a copy of the order of the learned Single Judge dated 5th August, 1978 was filed on 16th August, 1978, the copy was prepared on 29th August, 1978 and delivered on 30th August, 1978. The fact however, remains that no appeal was filed by the Union. However, a request has now been made on behalf of the Union that these cross- objections be treated as a separate appeal. As already observed above, these cross-objections have erroneously been registered separately as I.C. A. No, 211 of 1978. An application dated 23rd November, 1980 for condonation of delay in filing the "appeal" has also been made.
10. The appellant's learned counsel asserts that if the respondent Union had filed a separate appeal it would have been time-barred and that the facts alleged in the application under section 5 of the Limitation Act, which has now been filed, as also those mentioned in the affidavit submitted earlier by the General Secretary of the Union, do not make out a case for condonation of delay. The assertion has merit. However, the respondent-Union having filed only cross-objections in the present appeal, we are not inclined to treat the same as being a separate appeal in respect of another order, namely the order of dismissal of the Union's Writ Petition.
11. Learned counsel representing the Union asserted that since the Union's writ petition was also dismissed by the same order, by which the appellant's writ petition was dismissed, through his cross-objections he could also challenge the findings of the learned Single Judge which relate to the Union's writ petition. There is no force in this contention. Both the Writ Petitions were dismissed by separate orders ; it is another matter that in the judgment delivered in the appellant's writ petition the entire dispute between the parties was considered, whereas the Union's writ petition was dismissed by merely making a reference to the Order passed in the other case. The appellant's appeal is confined to the dismissal of his own writ petition, and the scope of the cross-objections filed by the respondent cannot be wider than the scope of the dispute in that case.
12. The appellant's case in his constitutional petition as well as in his appeal has been that the Member could not award Rs, 25 per month to the workers as cost of living allowance over and above the statutory allowance that had been granted to them. It is contended that the Member had made the Regulation without complying with the procedural requirements of sub-rule (2) of rule 3 of the Essential Services (Maintenance) Rules, 1962. Sub-rule (2) lays down that in regulating the wages and other conditions of' service the Chairman of National Industrial Relations Commission will take into consideration the views of the employer. In the present case appellant's views were not sought before making the Regulation, and it is asserted that the Order of National Industrial Relations Commission was void. It was argued that the impugned regulation was made without any evidence, and without following the prescribed procedure, and as such it was without lawful authority. Reliance was placed on Messrs Farid Sons Ltd. v. Government of Pakistan , Birendra Mohan Das v. Amiruddin Malik , Nawaz v. The Additional Settlement & Rehabilitation Commissioner , Atta Mohammad Qureshi v. The Settlement Commissioner and Chairman, Evacuee Trust Proprety v. Muhammad Din .
13. All these authorities appear to have been cited before the learned Single Judge as well. He agreed that the "Tribunal has not formally mooted its intention to make the regulation and had otherwise not given the Company an opportunity to put up its views". However, the appellant's writ petition was dismissed on the ground that it was not a fit case for the Court to exercise its Constitutional discretion. In this behalf it was observed as follows :- "Since the root cause of the entire dispute had been the increase in the cost of living, it is difficult to say that the regulation whereby an additional sum of Rs, 25 effective from 1st February, 1975 had been awarded to the employees, had been unrelated to the dispute. Therefore, even if the question of making the regulation had not been specifically proposed by the Tribunal, it cannot be said that the Company had been caught unawares. It is also no doubt, true that the Tribunal did not give any tangible facts in the form of statistical data illustrating the factum or the extent of rise in the cost of living, so as to justify the benefit awarded, but considering the fact that the power given to the authority is a wide one and is not dependent only upon a rise in the cost of living and that the amount involved is neither exorbitant nor fanciful as the subsequent award dated 14th March 1978 bears out, I am not satisfied that it is a fit case for exercising the Constitutional discretion against the workers."
14. The appellant's learned counsel contends that the impugned regulation was without lawful authority and as such there was no question of refusing to exercise discretion to interfere. It is also submitted that in view of the grant of three statutory cost of living allowances prima facie there was no scope for the view that the workers needed any additional benefit.
15. We regret or inability to agree with these submissions. The subsequent award, dated 14th March, 1978, to which reference is made in the impugned order, allows a benefit of Rs, 80 to each worker with effect from 1st July, 1977. This regulation was not made without reference to the employer.
Keeping in view the increase of Rs, 80 made with effect from 1st July, 1977, there is hardly any scope for the view that the increase of Rs, 25 granted earlier, would if the case were to go back to the same Tribunal, be found to be without any foundation. It is true that the statutory requirement of taking the employer's opinion is essential, but in the circumstances of the present case we agree with the learned Single Judge, that it was a fit case for refusal to exercise the Constitutional jurisdiction. The appeal as well as the cross-objections registered as I. C. A. No, 211 of 1978 are dismissed. There shall, however, be no order as to costs. P D 1961 SC 537 1970 SCMR 304 PLD 1970 SC 39 PLD 1971 SC 61 PLD 1971 Lah. 217 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.