' Abdul Majid. Respondent was serving as a Fireman in Pakistan Railways at Faisalabad. On 23rd December 1977. He met with an accident and after recovery he was found unfit for the post of Fireman as he had lost the sight of left eye. He was, therefore, appointed as a Shedman. As fireman he was getting Rs, 511 as his monthly wages but in May. 1978 his pay was reduced to Rs 370 per mensem without any reason or notice to him. After serving grievance notice, the respondent approached Punjab Labour Court No,
4. Faisalabad under section 25-A of the Industrial Relations Ordinance, 1969. The department in spite of service did not file their written reply although ample opportunity was afforded to them. Accordinaly on 23rd February 1978 the case was adjourned to 27th September 1978, for filing written statement subject to payment of Rs, 20 as costs. On 27th September 1978, the counsel for the department was present but none had gone from Lahore to appear on behalf of the management. The costs had also not been paid. Accordingly their defence was struck off and the case was adjourned to 15th October 1978 for ex parte evidence of Abdul Majid (respondent). On that day ex pane evidence of Abdul Majid. Respondent was taken. The respondent himself appeared as P. W. 1 and also relied upon certain documents. The Labour Court vide impugned decision dated 15th October 1978 accepted the petition and directed the department to pay Rs, 511(0 the respondent even on the post of Shedman with effect from 1st May.
1978; 'Hence this appeal.
2. I have heard at length the counsel for the parties- and have also perused the entire material available on the record.
3. The main contention of Mr. Saeed lqbal, learned counsel for the appellant department is that as member of the running staff the respondent was entitled to get 55 per cent. Allowance as part of his wages but while working as Shedman he cannot claim the said running allowance. It is an admitted fact that there was a settlement between United Union of Workers and the Railway Department. Demand No, 11 reads as under :- "Drivers and Fireman who fail eyesight test be absorbed on adequate jobs according to their pays.
' This demand was accepted in the following words :- "The demand is accepted to the extent that while offering alternate appointment, the scab of pay last drawn by the staff on running post will be protected."
3. A perusal of the above shows that the department has accepted the demand to the extent that while offering alternate appointment, the scale of pay last drawn by the staff on running post will be protected. According to Mr. Saeed lqbal, learned counsel for the appellant, the scale of pay last drawn would not include 55 per cent. Running allowance while according to Mr. Sarfraz Hussain, learned counsel for the respondent, the entire demand as accepted, should be read as a whole which makes it clear that the scale of pay last drawn by the staff on running post, will include 55 per cent running allowance as well. It is an admitted fact that the last pay drawn by the respondent as Fireman was Rs, 511 per month, which included 55 per cent running allowance. In the circumstances, scale of pay does not mean minus allowances but scale of pay would include the permissible allowances. Undoubtedly the respondent was entitled to 55 per cent, running allowance as Fireman and, therefore, when posted as Shedman he is entitled to the same pay which he was drawing as Fireman.
4. The above conclusion gets support from rule 2003, Fundamental Rule No, 9 (21) of Railway Establishment Code, Vol. II, in which the "Pay" has been defined as under :- "2003 (21)(a) Pay means the amount drawn monthly by a railway servant as :- (ii).... ........... ... ....
(iii) any other emoluments which may be specially classed as pay by the Governor-General.- Similarly clause(s) of rule I of Section III of . Pakistan Western Railway Advance, Chapter No, 3 of Personnel Manual (Allowances), reads as under :- "(s) The running staff will get substantive pay, plus average mileage up to 55% of their pay when-
(i) posted to waiting duty. Including periods they remain booked off in connection with joint inquiries, ambulance classes or law Courts on railway business, Pakistan National Guards duty etc;
(ii) undergoing a course of study for yard foreman, Assistant Station Master or Control Examination;
(iii) called for a personal interview by a competent authority in matters other than personal; and
(iv) picking up duties of yard foreman Assistant Station Master or control duties.
' Note 1-The average mileage for this purpose is arrived at by taking the total mileage earned during the last full month in which while employed as a guard, mileage was earned and by dividing such total by the number of days worked. The term "average mileage" includes ballast allowance working on Sunday or recognized holidays.
' Note 2-No allowance will be given to a man for the periods he remained booked off for attending joint enquiries and law Courts if he is defendant in a case and is found blameable whether such attendance necessitate his remaining at headquarters or his being called inform an outstation.
' Note 3-The payment of mileage allowance as stated above has the approval of Railway Board also vide their letter No, 0575-F, dated 8th June, 1955.
' Note 4-Guards on waiting duty should be rostered for 12 hours. The period of waiting duty is obviously one of inactivity and as such involves no sustained attention."
' Clause (w) of the above Rule which deals with quarantine is also relevant and for reproduced below :- "(w) Quarantine.-Members of the Class III running staff while on quarantine leave i,e, leave that is granted to them on account of infectious or contagious disease in their houses, while absent from duty on account of compulsory vaccination or while undergoing anti-arabic treatment, may be granted pay plus average mileage or overtime as calculated for privilege leave or leave on average pay, as the case may be, subject to a maximum of 55% of pay."
' The expression "average pay" and "pay" or "full pay" have been defined as under, in Pakistan Railway Establishment Code, Vol. 1.
"707. Definitions.-For the purpose of the rules in this section, unless there is anything repugnant in the subject or context (1)
(2)
(3)
(4)
(5) "Average pay- means the pay drawn or that would be drawn by a railway servant in the permanent post held substantively by him on the date preceding that on which he proceeds on leave; provided that the pay of staff entitled to running allowances shall include the average running allowances earned during the 12 months immediately preceding the month in which a railway servant proceeds on leave, subject to a maximum of 55 per cent. Of average pay for the same period, the average running allowances once determined remaining in operation during the remaining part of a financial year in cases of leave not exceeding one month."
"728. For the purpose of the rule in this section-
(i) "Pay" or "full pay" means the pay or wages which the railway servant concerned would have drawn had he remained on duty, but it does not include any increase which might have accrued to him during the currency of the leave.
' Note-In the case of staff entitled to running allowances "pay" shall include the average running allowances earned during the twelve months immediately preceding the date on which a railway servant proceeds on leave, subject to a maximum of seventy-five per cent. Of average pay for the same period, the average running allowance once determined remaining in operation during the remaining part of a financial year in cases of leave not exceeding one month."
' The term 'wages' has been defined in the Payment of Wages (Federal Railway) Rules, 1938 as under :- "Rule 3 (ii)---The gross wages of each person employed which has to be shown in the wages registered will be the amount of pay due for the wages period concerned. The term "wages" includes also overtime ad mileage of running staff and as these allowances have also to be paid for the wage period and within the time limit laid down, payment will be made to running staff alongwith the wages of a some (representing overtime and mileage allowances) on a basis of 75 per cent, (now 55 per cent.) of pay plus such adjustment of these allowances under-paid which actually have been earned during the previous wage period."
6. Another circumstances which goes in favour of the respondent is that if a driver or fireman is given regular promotion, he is granted special allowance in lieu of running allowances. Reliance in this behalf is placed upon Railway's Boards letter No, E. 65 PA-1/10-IL dated 14th March 1977, addressed to the Chief Administrative Officer, Pakistan Railways, Lahore and copy endorsed to F. A. & C. A.
0., Pakistan Railways, Lahore Director of Railways Audit, Lahore, etc. This letter is reproduced below :- "Sub :-Grant of Special Allowance to Guards Grade-II and _Loco Drivers on their regular appointment to posts involving stationary duties. Ref : -Your letter No, 830-E/30/1-II (E. 1(D), dated 18th November, 1976.
' In order to attract good Drivers and Guards to work as power Controllers/Foremen Running and Section Controllers respectively sanction of the President of Pakistan is hereby conveyed granting a Special allowance to them on their regular promotion to above-mentioned posts in NSP-12 (Rs, 300-650) to be calculated as a percentage of pay drawn by them in N. S. P. 8 at the time of their prod motion as shown below :-
(a) First two years .. 75% of pay in N. S. P.
8.
(b) Next two years ...... ........ 50% of pay in N. S. P.
8.
(c) Next three years 25% of pay in N. S. P. 8 whereafter the increase would lapse.
(2) The above orders shall take effect from 1st March, 1977.
(3) As the special allowances mentioned in paragraph 1 above is aimed at providing a sort of compensation to the Guards and Drivers appointed to posts involving stationary duties on account of shortfall in their earnings as a result of such postings, this allowance shall not be treated as a part of pay for the purpose of leave salary subscription to Provident Fund/G. P. Fund and special contribution to S. R. P. I. fund or pensionery benefits. '
(2) For Guards and Locomotive Drivers appointed against short term vacancies of one year or less in the cadre of Section Controllers and Power Controllers, as a stopgap arrangement, the existing provision of allowing them 55 /,, of the pay in the post of Guard or locomotive Driver as Stationary duty allowance shall continue.
(3) The additional expenditure involved shall be met from within the existing budget grant.,'.
' Similarly it is not denied that if a driver or fireman retires in that capacity he is given benefit of running allowance while calculating his pension and other retirement benefits. Same is the position when such employee proceeds on leave.
7. Thus keeping in view the cumulative effect of the relevant provisions of the Rules especially the above-quoted ones, it can .Safely be held that the scale of pay last drawn by the respondent on running post would include the running allowance while posted as Shedman. In other words B whatever wages the respondent was drawing as fireman on running post will be paid to him while posted on non-running post like Shedman. The object behind this demand by the union and the settlement arrived at between the parties was that if due to physical incapacity a driver or fireman is unable to perform his duty as such then he could be given some other suitable job or post but his wages/earnings should remain the same. Thus although such employee will have to leave the category of running staff yet that could not adversely effect his earning capacity otherwise the object of the demand and the settlement would be defeated. In order to avoid any discrimination and to no substantial justice to all employees of the same category and placed in similar circumstances I am clearly of the view that the benefit of running allowance has been rightly extended to the respondent who was initially serving as fireman but due to loss of sight of left eye as appointed as a Shedman.
8. After hearing the counsel for the parties and a perusal of the various ,departmental rules, I have reached the conclusion that Abdul Majid, respondent is entitled to Rs, 511 as his pay last drawn as Fireman and consequently, the decision of the Labour Court is correct and requires no interference by this Tribunal. Accordingly, I find no merit in this appeal, which is hereby dismissed.