DECISION ' The short point which falls to be considered in this appeal is whether the employees whose wages presently admittedly exceed Rs, 735 p. m. Are entitled to cost of living allowance of Rs, 35 p. m.
Under the provisions of subsection (1) of section 3 of the Employees' Cost of Living (Relief) Act, 1973 (hereinafter referred to as the 'said Act').
2. This appeal arises from an order made by the learned IVth Labour Court on 4th February, 1982, dismissing an application made by the appellant Union under section 34, I.R.O., complaining that the respondents had withdrawn the cost of living allowance of Rs, 35 payable under subsection (1) of section 3 of the said Act to employees whose wages exceeded Rs, 735 p. m. And praying that they be directed to pay the said cost of living allowance to such employees.
3. An application under section 34, I.R.O., can only be made for the enforcement of a right guaranteed or secured by or under any law, award or settlement. It has, therefore, to be seen whether the right to receive the cost of living allowance of Rs, 35 p. In. Is conferred by law, and if so, to whom it is payable and in what circumstances. The said Act was proceeded by the Employees'
Cost of Living (Relief) Ordinance, 1973. Section 3 of the said Ordinance requires every employer to pay on or after the first day of August, 1973, to each of his employees a cost of living allowance equal to Rs, 35 p.m. In the said Ordinance. "Employee" was defined to mean an employed person whose wages did not exceed Rs, 735 p. m. The combined effect of these provisions was that only those employees persons whose wages did not exceed. Rs, 735 p. m. Were entitled to cost of living allowance of Rs, 35 payable under the said Ordinance. The provisions in this behalf made in the said Act, which was enacted on 7th January, 1974, were identical. In other words, only those employees whose wages did not exceed Rs, 735 p. In. Were entitled to payment of cost of living allowance of Rs, 35 p. m. However, the said Act was first amended by the Employees' Cost of Living (Relief) (Amendment) Act, 1974, which was enacted on 10th September, 1974. By this amendment, the definition of "employee" in the said Act was amended by substituting the words "seven hundred and thirty-five" with "one thousand one hundred." At the same time an amendment was made in subsection (1) of section 3 of the said Act restricting the application of the said subsection to employees whose wages did not exceed Rs, 735. The combined effect, therefore, so far as payment of cost of living allowance of Rs, 35 was the same as before i. e. It was payable only to those persons whose wages did not exceed Rs, 735 p. m. The reasons for amendment in the definition of employee in the said Act, by raising the maximum wages from Rs, 735 to Rs, 1,100, was the addition of subsection (2) to section 3 of the Act, according to which every employee i,e, an employee whose wages did not exceed Rs, 1,100 p.m., was entitled to receive an additional cost of living allowance of Rs, 50 p. m. With effect from 8th day of. June, 1974. As such the legal position all along has been that only those employees whose wages do not exceed Rs, 735 p. m. Are entitled to cost of living allowance of Rs,
35. Under subsection (1) of section 3, first under the Ordinance of 1973 and thereafter, of the said Act.
4. Mr. Ch. Rashid Ahmed, the learned counsel for the appellant, however, sought to support his appeal on two grounds. His first ground was that the reference to the maximum wages under the said Act/or Ordinance either in the definition of "employee" or in subsection (1) of section 3 was to the amount of wages payable to the employee at the time that the Ordinance or the said Act came into operation and not to the subsequent wages earned by him, by reason of increment granted or otherwise. I regret that I find no force in this contention. As already shown the law at all times has provided for payment of cost of living allowance of Rs, 35 p. m. Only to those employees whose wages did not exceed Rs, 735 p. m. The moment that an employee's wages exceed this maximum amount or he ceases to fulfil the other conditions entitling him to the payment of the said cost of living allowance it was no longer payable to him. No doubt subsection (2) of section 3 and other subsections of that section provided for payment of additional cost of living allowance, but each such cost of-living allowance is payable only to those employees who fulfil the requirements for the entitlement thereof. Since the essential requirement for the entitlement of cost of living allowance under subsection (1) of section 3 of the said Act is that the wages of the employee, concerned must not exceed Rs, 735, it is not payable to other employees. As it is an admitted position that the wages of the employees in respect of whom the demand of payment of this cost of living allowance was made now exceed Rs, 735 they are clearly not entitled to the payment of this allowance.
5. It was next contended by Mr. Ch. Rashid Ahmad that since the employees, though their wages may have exceeded Rs, 735, had been in receipt of cost of living allowance of Rs, 35 p. m. Since several years this should be deemed to be the terms and conditions of their services. Apart from the fact that an application under section 34, I.R.O., can only be made for the enforcement of any right guaranteed or secured by or under any law, award or settlement and the claim is not based on any law, settlement or award, as already shown, the entitlement to the cost of living allowance of Rs, 35 is limited to employees whose wages do not exceed Rs, 735 p. m. Even if the respondent through mistake or otherwise continued to pay certain employees the -cost of living allowance of Rs, 35 p. m. After their wages had exceeded Rs, 735 p. m., this would create no right to an employee to receive such a cost of living allowance nor would it entitle the C. B. A. To enforce such a claim under section 34, I.R.O.
6. For the reasons discussed by me above, I find no merit in this appeal and would dismiss the same in limine.