SHAHID ANWAR BAJWA, J. --- The petitioner of this petition is E.M. Qlls Mlll and Industries Limited a private limited company. At the time of flling petition it was a unit of Ghee Corporation of Pakistan which is run and controlled by Ministry of Industries and Production, Government of Pakistan, Islamabad.
Respondent No. 2 to 232 (in all 231) were employed by the petitioner. On 25.3.1997 an SRO was issued by the Government of Pakistan whereby an ad-hoc relief of Rs. 300/- with effect from 1.3.1997 was allowed to employees whose wages did not exceed Rs. 4,065/- per month. The notification was in the following words:--- "S.R.O. No. 245(1)/97. In exercise of the powers conferred by section 3A of the Employees Cost of Living (Relief) Act, 1973 (I of 1974), the Federal Government is pleased to direct that every employee in the private sector the corporations and autonomous or semi-autonomous bodies whose terms and conditions of employment are negotiable through collective bargaining under Industrial Relations Ordinance, 1969 (XXIII of 1969), shall, in respect of his employment be paid by his employer, an ad-hoc relief at a uniform rate of Rs. 300/- (Rupees Three hundred) per month, with effect from the 1st March, 1997 subject to the condition that his wagers do not exceed four thousand and sixty five rupees per month."
2. This notification was issued in exercise of powers conferred by Section 3(A) of the Employees'
Cost of Living (Relief) Act, 1973. The said section 3(A) is in the following words:- "3A. Cost of living allowance in addition to that admissible under section 3.
3. Initially Office Order dated 13.5.1997 was issused by Ghee Corporation of Pakistan (Pvt) Ltd., allowing the benefits granted by the notification dated 25.3.1997. However, on 3.10.1997 this Office Order was withdrawn.
4. Services of Respondents No. 2 to 232 were terminated on 7.10.1997 under a Voluntary Retirement Scheme which allowed inter alia gratuity at the rate of 30 days for every completed year of service or part thereof exceeding six months. Respondents No. 2 to 231 were paid gratuity accordingly.
However. While calculating gratuity amount under the notification of 25.3.1997 was not included in it.
5. On 31.5.1999 Respondents No. 2 to 231 flied separate applications before the Authority under the Payment of Wages Act at Karachi. In the applications they claimed difference of the gratuity on account of inclusion or non-inclusion of above-stated Rs. 300/-. The present petitioner entered appearance, raised various objections and eventually vide Single order dated 12.12.2002 all the applications were allowed. This Constitution petition was flied by the petitioner directly in this Court without invoking remedy (if any) of appeal provided under Section 17 of the Payment of Wages Act, 1936. Learned counsel for the petitioner made the following submissions:--- 1 At the relevant time when applications were flied before the Authority under Payment of Wages Act and also when decision was given by the authority on 12.12.2002 Section 2A of the Services Tribunal Act was in force and governing all the matters relating to terms and conditions of payment of person in the service of organization etc., which were owned and controlled by the Federal Government or which were set up or established by or under a Federal law or in which Federal Government had controlling share or interest. Petitioner being such an organization jurisdiction of Authority under the Payment of Wages Act. Was barred.
Since jurisdiction of the Authority was barred it was an order without jurisdiction and law is that if an order is passed by Court or authority which has no jurisdiction to pass such an order, notwithstanding remedy , of appeal provided against that order direct writ petition would be maintainable. Learned counsel in this regard relied upon (P.L.D 1972 Kar. 279).
3. Although in Mubin-us-Salam's case P.L.D 2006 SC 602 Section 2A has been held partly ultra-vires of the Constitution but judgment in that case has prospective operation and retrospective operation and therefore, it does not cover decision made prior to the date of that judgment.
That gratuity paid to the employees was not a statutory gratuity. It was under a settlement and the employees were paid gratuity on the basis of basic salary plus cost of living allowance of Rs. 2918/- per month.
5. That learned authority under the Payment of Wages Act. Misconstrued Section 2A of the Service Tribunal Act, by coming to the conclusion that since the applicants were workmen in a factory they were not covered by definition of Civil Servant as given in the Service Tribunal Act, 1973. Learned counsel in this regard relied upon Syed Aftab Ahmed v. KESC 1999 197.
6. In Para-5 of the written statement it was specifically stated that the applicants were not entitled to gratuity under the law. There used to be a Gratuity Scheme in the Respondent Company, under which Gratuity was paid to the employees at the rate of basic wages plus Rs. 110/- and it is on that basis the applicant had been paid gratuity. Learned counsel also relied upon 2008 SCMR 826 to control that Services Tribunal had jurisdiction in respect of workmen employees. Learned counsel also relied upon 1998 PLC 688 and 1991 SCM R 1041 on the question of maintainability of the petition .
Learned counsel further relied upon 1998 PLC (CS) 1371 to contend the Services Tribunal has exclusive jurisdiction in respect of all cases relating to terms and conditions of employment.
6. Mr. Ghangro, learned counsel for the respondent made the following submissions:---
1. The petition is not maintainable because remedy of the appeal is provided under Section 17 of the Payment of Wages Act and petitioner cannot be allowed to circumvent that remedy.
By inviting attention to Para-13 of his Counter-Affidavit the learned counsel contended that under the Golden Hand Shake Scheme it was agreed by the Government of Pakistan acting through the privatization commission that gratuity shall be and therefore it cannot be said to be a contract between the private parties.
It was further submitted that wages as defined under the Payment of Wages Act mean all remuneration, capable of being expressed in terms of money which would be payable in terms of the contract of employment express or implied were fulfilled. This gratuity falls within `wages' as defined in the Act of 1936. In this regard he relied upon (1998 PLC 71).
Learned counsel referred to Page 75 of Counter-Affidavit which is the Reliving and it states that, "in the letter 'Gratuity' it was clearly stated these: "30 days for every completed year of service and part thereof exceeding 6 months." Learned counsel referred to the Trust Deed of E.M.Oil Mills & Industries Limited Gratuity Fund, wherein at page 87 Salary is defined in the following:--- " 'SALARY' or 'WAGES' mean only the fixed monthly basic wages (including special pay received in lieu of graded increments) received or receivable by an employee from the Company including the cost of living allowance(a) wherever applicable admissible to an employee under the Employees Cost of Living (Relief) Act or any amendment thereof but excluding any dearness allowance, overtime payment, bonus or other allowance by whatsoever name called, benefit remuneration or profit whatsoever received by such employee."
5. Learned counsel further submitted that the employees were being paid cost of. Living allowance of Rs. 300/- (under the notification dated 25.3.1997) with their salary till their reliving but for the purpose of gratuity the same has not been included.
6. As far as jurisdiction of the Authority under the Payment of Wages Act, is concerned, learned counsel referred to the order passed by a Single Judge of this Court in C.P. No. 401/2001 in which order it was observed that since jurisdiction of the Federal Services Tribunal is only invokable when an order of departmental authority is called in question and since in this case no order has been passed by the departmental authority, thereof, authority was directed to hoar and decide the application filed by Respondent, after recording evidence, notwithstanding legal objections.
Learned counsel submitted that this order was challenged in the Supreme Court and the Supreme Court vide order dated 21.10.2002 ordered that the authority under the Payment of Wages Act will decide the application in .Question on merits and on all the grounds `including, the legal objections'. Learned counsel cited various other cases which I will take in their due place during this judgment.
7. I will first deal with question of the effect of Muhammad Mubeen-us-Salam and others v.
Federation of Pakistan and others, P.L.D. 2006 SC .602. In Mubin-unSalam's case the Supreme Court in Para 108 recorded its final findings in the following words:- "108. The threadbare discussion on the subject persuades us to hold:- (1.) Section 2-A of the STA, 1973 is, partially, ultra vires of Articles 240 and 260 of the , Constitution, to the extent of the category of employees, whose terms and conditions of service have not been determined by the Federal Legislature and by deeming clause they cannot be treated civil servants as defined under section 2(1) (b) of the CSA. 1973 and they are not engaged in the affairs of the Federation.
Section 2-A of the STA. 1973 cannot be enforced in the absence of amendment in the definition of civil servant as defined in section (1)(b) of the CSA. Shall have no remedy before the Service Tribunal, functioning under Article 212 of the Constitution and they would be free to avail appropriate remedy."
8. Thereafter in Para 109 following doctrine of past and closed transaction the Supreme Court held that cases which have been decided by the Supreme Court shall not be reopened. However, proceedings instituted by the employee or by and employer pending before the Supreme Court or the Service Tribunal shall stand abated. It was further held that cases where order of Service Tribunal has been implemented shall remain intact for a period of 90 days or till filing of appropriate proceedings, whichever is earlier. The matter again came up before Supreme Court for consideration in Muhammad ldrees v. Agriculture Development Bank of Pakistan & others, P.L.D.
2007 S.C. 681. The Supreme Court clarified Mubeen-us-Salam's case and firstly held that findings in Mubeen-us-Salam's case have no applicability in respect of organizations where there are statutory rules of service. Secondly, Supreme Court gave protection of past and transaction to orders of the Federal Service Tribunal which were never challenged before the Supreme Court and which had attained finality. Judgment in case of Mubeen-us-Salam was rendered on 26.6.2006 and contention of the learned counsel is that Mubeen-us-Salam's case judgment is prospective in nature and not retrospective in nature.
9. In J.A. Wolf v. Peoples of the State of C4olorado, (1949) 338 US 25-93 majority of the. Supreme Court of United States held that in a prosecution in a State Court for a State crime, 14th Amendment did not forbid admission of evidence obtained by an unreasonable search and seizure. However in Mapp v. Ohio, (1961) 367 US- 6 the Supreme Court reversed that decision and held that all evidence obtained by search and seizure in violation of 14th Amendment of Constitution of the United States was by virtue of due process clause of 14th Amendment guaranteeing rights to privacy free from unreasonable State intrusion inadmissible in a State Court. It was subsequently held by the Supreme Court that the Mapp Principle would not apply to convictions which had become final before date of that judgment. Similar question came up before the Supreme Court in Malik Asad Ali & others v.
Federation of Pakistan & others, P.L.D 1998 Supreme Court 161. It was a case in which appointment of Mr. Justice Sajjad Ali Shah as Chief Justice of Pakistan was challenged on the ground that his appointment violated rule of seniority which had been laid down by the Supreme Court in Al-Jehad Trust v. Federation of Pakistan, P.L.D. 1996 S.C. 324 (commonly called Judges case). It was contended that since judgment in judges case was delivered after Mr. Syed Sajjad Ali Shah had been appointed as Chief Justice of Pakistan and since the judgment should be prospective, it could not have covered appointments made earlier, the Supreme Court repelled this argument and held as under:--- "135. It is well-settled law that a new or an amending statute touching the vested right of the parties operates prospectively unless the language of the legislation expressly provides for its, retrospective operation. However, the presumption against the retrospective operation of statute is not applicable to statutes dealing with the procedure as no vested right can be claimed by any party in respect of a procedure. The only exception to the retrospective operation of a procedure law is that if by giving it a retrospective operation, the vested right of a party is impaired then to that extent it operates prospectively. The above principles applicable to a new or an amending statute, however, cannot be applied strictly to the law declared by the Courts through interpretative process. The Courts while interpreting a law do not legislate or create any new law or amend the existing law. By interpreting the law, the Court only declare the true 'meaning of the law which already existed. Therefore, to that extent the law declared by the Court is applicable from the date the law is enacted. However, as under the Constitution only the decision of this Court on a question of law or insofar it enunciates a principle of law is binding on all Courts, and Authorities, the possibility that a provision of law or Constitution before it came up for interpretation before this Court, was interpreted or understood differently could not be ruled out.
Therefore, if as a result of interpretation or meaning of the law is changed, then it is. More of a matter of public police based on justice, equity and good conscious than a rule of law, than an innocent person who acting bona fidley on the prevalling interpretation or meaning of law created a liability or acquired a right, be protected against the change about in the existing state of law as a result of its interpretation by this Court. However, where a person or authority acts in defiance, of a clear provision of law or Constitution or the interpretation by the Court does not have the effect of changing the prevalling understanding of the meaning of the provision of law or the Constitution, the question of protecting any one against the effect of such interpretation by the Court on the principle that the effect of interpretation by given prospective operation does not arise. For example, if a particular provision of law or the Constitution has not come up for interpretation before any Court and the functionaries responsible for giving effect to it have consistently interpreted the said provision and understood it in a particular scene and acted upon it accordingly over a length of time, but all of a sudden the functionaries decide to follow a new practice by changing the interpretation of that provision. However, when the matter is brought before the Court, the solitary deviation by the functionaries made on the basis of changed interpretation is struck down by the Court as illegal and unconstitutional and the previous interpretation and practice followed by the functionaries is upheld being in accordance with the law and Constitution. In that event, neither the functionaries nor the person deriving any benefit on the basis of law or the Constitution could defend the illegality or unconstitutionality of the action on the principle that the interpretation given by the Courts be applied prospectively and not retrospectively, as in such a case the Court is striking down the very first deviation of the functionaries on the ground that the deviation from the previous practice/interpretation is illegal and unconstitutional. The principle that the change in the state of law as a result of interpretation by this Court is to be given effect to from the date the Court interpreted the law is also not applicable in those cases which could be brought under challenge in accordance with the -law before or after the interpretation of the provision by this Court. Even otherwise, as pointed out by us earlier, this Court while adopting an interpretation of the provision of the law or the Constitution which is at variance from the existing view, it is only declaring the correct law as an apex Court. By doing so, it neither legislates any new law no amends the existing law. Therefore, while interpreting a provision of law or the Constitution, this Court can also provide the date from which the interpretation given by it is to come into effect, keeping in view the nature of the provision it is interpreting, the likelihood of possible prejudice which may be caused to an individual or a body of individuals and the requirement of justice in the case."
10. In passing I may mention that one of the case relied upon by Supreme Court where this principle of prospective overriding was adopted by the Supreme Court of India is Golak Nath v.
State of Punjab, AIR 1967 S.C. 1643. However, this principle was override by the Supreme Court of India in Kesavandand Bharati v. State of Kerala, AIR 1973 S.C. 1461 and according to N.S. Bindra's (Interpretation of Statutes: 1997 Edition: page 930) is "yet in the melting crucible". Be that as it may, the Supreme Court of Pakistan has clearly held that there is a difference between legislation on one hand and interpretation by the Court on the other hand. Legislation is always prospective unless either when it is procedural or when the statute itself provides for its retrospective operation.
This cannot be said in respect of interpretation of legislation by the Courts. When a Court interprets law it effectively says, this was intention of the Legislature on the day when that particular piece of legislation was made. Thus, interpretation has to travel back to wherever in time the legislation was enacted, however, of course, past and closed transactions would be saved. This was not the first lime that principle of prospective overriding was made applicable in Pakistan. In Federation of Pakistan & others v. Moulvi Tamizuddin Khan, P.L.D. 1955 F.C. 240 when it was held that legislative provisions relating to Constitutional matters for their validation require assent of the Governor General, though the decision was announced in April 1955 it covered all legislation right from 14th August, 1947. In Usif Patel & 2 others v. The Crown, P.L.D. 1955 F.S. 387 even a law.
Emergency Powers Ordinance (IX of 1955) which sought to validate certain laws of constitutional nature was struck down. Since Moulvi Tamizuddin Khan's case is a widely lamented case and rightly so, one can come to a recent case also. In lmran v. Presiding Officer, Punjab Special Court No. VI, Multan and 2 others P.L.D. 1996 Lah. 542, a full bench of Lahore High Court while striking down certain provisions of the Banking Tribunal Act, saved only past and closed transactions. The relevant observations were as under:- "23. Before parting with the cases we may also state that the declaration made by us in the judgment shall not affect cases past and closed or invalidate the judgments, orders of sentences passed or the proceedings which may have become final. The appeals pending in the High Court shall be disposed of in accordance with law. The files of the cases pending with the special Courts shall be transmitted to the High Court for entrustment to the Courts of competent jurisdiction for disposal in accordance with law."
11. I may state here in passing that this principle was also up-held by the Supreme Court in Mehram All & others v. Federation of Pakistan & others, P.L.D. 1998 S.C.
1445. Therefore, contention of learned counsel for the petitioner that Mubeen-us-Salam's case has no applicability to this matter because this had been decided by the authority under the Payment of Wages Act in 2002 does not, in my opinion, hold much water because pot of this case was still boiling (as this writ petition was pending) when judgment in Mubeen-us-Salam's case was pronounced. Therefore, though at the relevant time Section 2-A in its gull glory ruled the roosted it had been held by various Courts that even the jurisdiction of authority under the Payment of Wages Act, is ousted by Section 2-A of the Service Tribunals Act for example see (Abid Hussain and 7 others v. Divisional Superintendent, Pakistan Railways, Quetta, S.B.L.R. 2004 Baluchistan 73) and the Supreme Court held that even in cases of workmen the jurisdiction would vest with the Federal Service Tribunal (Zahirullah and 13 others v. Chairman, WAPDA, Lahore & others, 2000 SCM R 826), since now. Section 2-A has been held to be partially ultravires of the Constitution of the Islamic Republic of Pakistan, one cannot attack jurisdiction of the Authority under the Payment of Wages Act on account of it being barred by Section 2-A except where there are statutory rules and this is not a case where there are statutory rules. Neither had it, by 26.6.2006 become a past and closed transaction.
12. Regarding maintainability of the writ petition, the learned counsel for the petitioner argued that since jurisdiction of the Authority was, at the time when the applications were entertained by the Authority and also when the impugned order was passed by- the Authority barred Section 2-A of the Service Tribunals Act, therefore, the order passed by the Authority was without jurisdiction and as far as /is before it the authority was corum-non-judice and therefore, writ petition would be maintainable. The learned counsel in this regard relied upon Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division & 2 others, (P.L.D. 1972 S.C. 279). In this case the Hon'ble Supreme Court held that where the petitioner challenges the very jurisdiction of the authority which passed the order, notwithstanding remedy of appeal the petitioner's direct petition to the High Court would be maintainable. Learned counsel also relied upon Chairman Central Board of Revenue, Islamabad and others v. M/s. Pak-Saudi Fertilizer Ltd. & another, 2001 SCM R 777, where it was held that where the impugned order of demand was without jurisdiction and unlawful, consequently there would be not bar to filing of Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan. Learned counsel further relied upon a Single Bench judgment of this Court in M/s. Hafiz Textile. Mills Limited v. Commissioner for Workmen's Compensation and Authority under Payment of Wages Act, West Division, Amil Colony, Karachi, P.L.D. 1993 Kar. 709. The facts of this case were that the workmen whose services were terminated in September, 1984, challenged termination in the Labour Court who ordered reinstatement of their services with back benefits. It was contended that the workmen after the order of the Labour Court falled to report for duty as per the order and resumed their duty four months thereafter. The workmen contended that they were not allowed to resume their. Duty. Their services were again terminated in January 1987 and Labour Court directed petitioner to reinstate them with back benefits and petitioner's appeals before Appellate Tribunal were dismissed in limine. Thereafter workmen filed applications for wages for the period intervening between date of first order of Labour Court and date of second termination. The Authority directed the employer to pay wages as well as 10 times the compensation. The High Court relying upon (P.L.D. 1982 Kar. 653), held that since the order was ex facie without lawful authority it could be challenged directly in the Constitution petition without availing remedy of appeal.
13. On the other hand, the learned counsel for the respondent contended that a full remedy of appeal is provided under Section 17 of the Payment of Wages Act and that remedy has not been availed by the present petitioner.
Learned counsel submitted that remedy of appeal is coupled with a condition: that the amount decreed by the. Authority under Payment of Wages Act must be deposited with the Authority and appeal would be maintainable only if it is accompanied by certificate of such, deposit. Learned counsel submitted that the petitioner in order to circumvent this mandatory provision of law has come in this petition. He submitted that purpose of Article 199 of the Constitution is not to nullify the effect of legislative provisions or to make statutory provisions ineffective. He relied upon:-
1. Ahmed Spinning Mills Ltd. Vs. Authority Under Payment of Wages and others, 1990 PLC 26.
2. Mechanized Construction of Pakistan (Pvt) Ltd., Vs. Commissioner Workmen's Compensation and Authority Under Payment of Wages Act and another1990 PLC 316.
Town Committee Chowinda Vs. Arrora Masih & others 2000 PLC 181.
Sarhad Development Authority, NWFP Vs. Jahanazeb and an other 1999 PLC 377.
14. Learned counsel referred to. Syed Match v. Authority under Payment of Wages Act and others 2003 PLC 395, which was a case under the Payment of Wages Act, and where the Supreme Court has held that a party can not ignore provisions of law and maintain Constitution petitions. Learned counsel further submitted that Syed Match's case was followed by the Supreme Court in Mughal Surgical (Pvt) Ltd., and others v. Presiding Officer Punjab Labour Court No. VIII and others 2005 PLC 464.
15. There cannot be any cavil with the galaxy of case cited by the learned counsel regarding maintainability of this petition. One cannot be of two opinions that where an authority passes an order and the law itself provides for remedy of appeal against the order of the authority the party must avail that remedy of appeal and Article 199 of the Consttution should not be made a mere device for scuttling all judicial hierarchy and judicial paraphernalia created by the statutes.
However, as has been very rightly held by Mr. Justice (R) Dorab Patel in A.F. Ferguson Co.. Vs. The Fifth Sindh Labour Court Karachi and another 1974 PLC 98 exceptional situations notwithstanding remedy of appeal writ jurisdiction can be invoked by the party. The question is whether there was an exceptional situation here. I cannot say anything but yes. This was a case where at the time i.e. At the time when matter was taken to be Authority under the Payment of Wages Act and even when the order was passed by the Authority there seemed to be consensus of judicial opinion that Authority under the Payment of Wages Act had no jurisdiction where the matter pertained to an organization to which Section 2-A was applicable. It is another matter that Section 2-A was declared ultra virus by the Supreme Court in Mubeen-us-Salam's case but that was done in 2006 as to what would be held in 2006. Therefore I overrule the objection of the respondent regarding maintainability of the petition and hold that writ petition was rightly filed and is _maintainable.
16. Learned counsel for the petitioner vehemently contended that Authority under the Payment of Wages Act, misconstrued provisions of Section 2-A of the Service Tribunal Act, in coming to the conclusion that since the application before it were workmen for the purpose of Factories Act they were not covered by the Section 2-A. Learned counsel in this regard upon Syed Aftab Ahmed & others v. KESC & others 1999 SCM R 197. It was held by his lordship Mr. Justice Ajmal Mian, the Chief Justice (As his lordship then was) that the exception provided in Section 2(b) of the Civil Servants Act (these exceptions related to contract employees, employees on special terms and persons falling in the definition of workmen as contained in the Workmen's Compensation Act and The Factories Act) are not applicable where Section 2-A is made applicable. The relevant observations are in the following words:--- "A perusal of the above quoted newly enacted section 2-A indicates that the service under any Authority, Corporation, Body or Organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest has been declared to be service of Pakistan. It has also been provided that every person holding a post under any such Authority, Corporation, Body or Organization shall be deemed to be in civil service for the purpose of this Act i.e. The Service Tribunals Act, 1973. In our view, it is not necessary for an employee working in any of the organizations covered by section 2- A that he should also come within the ambit of definition of the "civil servant" given in section 2(b) of the Act of 1973. The employees of the various Authorities, Corporation etc. Mentioned in section 2-A have been treated in the service of Pakistan for limited purpose for providing remedy by way of appeal to them against an order of which they may feel aggrieved."
17. Respectfully following the , dictum of the Supreme Court I think the conclusion arrived at by the Authority under the Payment of Wages Act, that the applicants before it not being Civil Servants under the Civil Servants Act, 1973 were not covered by Section 2-A is contrary to law. However, after Mubeen-us-Salam's case one is bound to come to the conclusion that applicants before the authority under the Payment of Wages Act did not fall within section 2-A but not for the reason that prevailed with the Authority bUt for the reason that section 2-A has been declared partially ultra vires of the Constitution of Islamic Republic of Pakistan.
18. Coming to the question whether the applicants before the Authority under the Payment of Wages Act, were entitled to inclusion of the increase granted under Section 3A of the Employees Cost of Living (Relief) Act, 1973 (1 of 1974), by the notification dated 25.3.1997, some basic facts must be stated straightaway. Firstly the increase of Rs. 300/-was granted under a statutory notification and has statutory backing. No amount of internal order, circular or Office Orders, howsoever higher may be the pedestal on which the authority issuing those order or memoranda, be sitting upon could not have the effect of wiping away to nothingness the rights guaranteed under a statutory notification. Secondly it is admitted position that the workmen were paid increase under the notification alongwith their salaries from the date of the notification till the date they ceased to be employees of the organization i.e. 7.10.1997. Thirdly, it was admitted by the learned counsel and it is stated to be so on the record that workmen were paid gratuity on the basis of basic wages plus Rs.
110/-. I asked the learned counsel as to where did this Rs. 110/- descend from. The learned counsel had to agree that this Rs. 110/- was cumulation of cost of living allowances under Clauses (1), (2) &
(3) of Section 3 of the Employees Cost of Living (Relief) Act, 1973. It is not understandable as to why one allowance under that law was included in the payment of gratuity and another allowance under the same law was not included.
19. Learned counsel for the respondent referred to definition of 'Salary' in the Rules and Regulations of Gratuity Fund of the petitioner. That definition has been reproduced above and it specifically includes cost of living allowances where applicable/admissible under the Employees Cot of Living (Relief) Act, 1973. It is cardinal principle of interpretation of labour laws as it is for interpretation of welfare legislation that they should be liberally interpreted in favour of the workmen's. In this case even no such interpretation is required because definition of salary is so clear on this point that even with the best and of sophistry one would be unable to exclude this amount of Rs. 300/-from the wages/salary.
20. Learned counsel for the petitioner stated that gratuity being paid was not a statutory gratuity but was a gratuity being paid under the settlement. He submitted that since there was a Provident Fund Scheme also to which contribution of employees was not less than contribution' of workmen therefore workers were entitled to statutory gratuity under Standing Order 12(5) of the Industrial and Commercial Employment Standing Orders) Ordinance, 1968. At a first glance there appears to be some force in the contention of the learned counsel. In order to fully appreciate his contention reference to Section 7 of the Employees Cost of Living (Relief) Act, 1973 may be pertinent. The said section 7 is in the following words:- "7. Cost of living allowance { * * * }to form part of wages---Notwithstanding anything contained in this Act or any other law for the time being in force, the cost of living allowance shall form part of wages of a worker for the purposes of contribution to provident fund, gratuity, bonus, social security scheme, indexation of wages and calculating wages for overtime work: Provided that, for the purposes of the Workman's Compensation Act. 1923 (VIII of 1923), except section 4 thereof, the Payment of Wages Act, 1936 (IV of 1936), the Companies' Profits (Workers'
Participation), Act. 1968, or the Industrial Relations Ordinance, 1969 (XXIII of 1969)', the cost of living allowance shall not form part of the wages of a worker."
21. Section 7 says that Cost of Living Allowance shall form part of wages. It may be interesting to note that originally it was provided that it shall not form part of wages. However, when PNA agitation was in full swing and lot of measures of appeasement were used by the government, word 'not' was deleted in May 1977. Be that as it may, Section 7 in its present phraseology provides that Cost of Living Allowance shall form part of wages for the purpose of inter alia gratuity. Immediately thereafter there is proviso and which says that Cost of Living Allowance shall not form part of wages for the purpose of four statutes specified therein including the Industrial Relations Ordinance, 1969. Therefore, since the Cost of Living Allowance does not form part of wages for the purpose of the Industrial Relations Ordinance, 1969 it cannct be treated a part of wages for the purpose of any settlement which is an instrument borne out of the crucible of industrial relations melting part brought into existence by the Industrial Relations Ordinance or its successor legislations including the Industrial Relations Act, 1969.
22. But sadly, for the petitioner the matter does not end there. Firstly although it has been pleaded by the learned counsel that. This gratuity not being a statutory gratuity was paid under a settlement, no such settlement has been pleaded either before the Authority or before this Court in this petition and no such settlement has been placed on record. On the other hand, learned counsel for the respondent invited my attention to, besides the rules of the Gratuity Fund, Relieving Letters issued to each of the 231 persons where in the gratuity clause it is clearly stated 30 days after each completed year of service. It is nobody's case that that relieving letter is settlement. No basis for calculation of gratuity is specified in the relieving letter. The writer of the relieving letter is the management. It is a accepted cannot for interpretation of non-statutory documents that if two interpretations are possible one favouring the writer and other favouring the other party, the interpretation favouring the other party should be adopted. Therefore, even on that score the workers are entitled to inclusion of increase allowed in 1997 for the purpose of calculation of gratuity.
23. For the above reason, I uphold the order passed by the Authority under the Payment of Wages Act dismiss this petition in limine. It is sad and tragic that poor, hapless workers have been dragged into litigation for 12 years now. It may not be fault of the petitioner, it may not be fault of the system. It may not be fault of any one but who suffered : the poor applicants. Justice, fairness and necessary degree of social sensitivity demand that justice be not delayed any more. .