1. SAEEDUZZAMAN SIDDIQUI, J.-In this petition the decision of the Labour Appellate Tribunal, Karachi dated 16-9-1975 passed in Appeal No. 60/1975 is impugned by the petitioner.
2. The admitted position in the case is that the Employees' Union of the appellant submitted a charter of demands on 1-10-1974 claiming increase of bonus, pay scale and various allowances. This demand was not accepted by the appellant with the result that a strike notice was served on 12- 10-1974 and a charter of demands was also forwarded to the conciliator of the area concerned.
3. The parties having failed to reach a compromise during the conciliation proceedings, the employees' union approached the Labour Court under section 32(1-A) of the Industrial Relations Ordinance, 1969, seeking an award on the basis of chatrer of their demand submitted to the employer. The Second Sind Labour Court recorded evidence of the parties and allowed the demand with regard to the increase of bonus equivalent to one and a half months' salary. The bonus allowance was increased to 10 % of the basic wages of the Employees the attendance allowance was awarded at the rate of Rs. 15 per month. The traveling allowance was allowed at the rate of 50 paisa per day for workers living at a distance of 3 miles from their place of work and washing allowance was increased from Rs. 5 to Rs.
10. In addition to these increments other benefits were also awarded to the workers under the award of the Labour Court but these are not agitated before us. The appellant felt aggrieved with the award of the Labour Court and filed an appeal before the Sind Labour Appellate Tribunal, Karachi, under section 37(1) of the 1.
4. R. O. On the demand regarding payment ofbonus the learned Appellate Tribunal came to the conclusion that the Respondent Union had failed to establish that the bonus claimed by them was a customary bonus based on any usage, custom or practice. From the findings of the learned Tribunal, it is clear that although the bonus was allowed/paid by the appellant in past on some occasion in spite of losses, it was not a customary bonus. The Appellate Tribunal accordingly did not agree with the award of the Labour Court for payment of bonus at the rate of one and a half months' salary and held that one month's salary paid by the appellant as b gnus was .In the circumstances justified. The Tribunal, however, further ordered that in future also the bonus shall be continued to be paid at the sum ; rate. Mr. Ali Amjad, the learned counsel for the petitioner contends ,fore us that the Tribunal having found in its order that the bonus paid by, the appellant was not a customary bonus, could not order for. Its payment in future at the same rate. The contention of the learned counsel appears to be not without force.
5. The bonus paid by an employer could be either a customary bonus or a profit bonus. Customary bonus are paid by employers irrespective of the fact whether the employer makes a profit or not during particular year. Such bonus may also be payable by an employer to the employee on the basis of some settlements between the employer and the employees or as a result of a term of employment. The disputed bonus paid by the appellant to their employees for the year 1974-75 is held by the tribunal as not falling under any of the categories specified above. The only other kind of bonus which may be claimed by the employees in a profit which is dependable on the profits earned by the company in a particular year. Such bonus can only be ordered by the Court if the company makes a profit in a particular period and not otherwise. We, therefore, agree with the learned counsel for the petitioner that the Tribunal having found in his order that the Union ha5 failed to prove that the bonus declared by the company for the year 1974-75IA was not a customary bonus could not have ordered its payment for future years irrespective of earning of profits by the appellant.
6. The next contention of Mr. Ali Amjad is that the Tribunal having found that there was no evidence before the Labour Court to justify the grant of house allowance, travelling allowance, attendance allowance and washing allowance, it could not award the same at Rs. 60 per month on a consolidated basis. It is true that the Tribunal has awarded a consolidated amount of Rs. 60 per month by way of these allowances as against the sum of Rs. 45 already paid by the employer to its employees, but the reason given by the Tribunal for increase of Rs. 15 per month in these allowances is given as increase in the cost of these services. This increase, therefore, cannot be termed as unreasonable or arbitrary in the circumstances of the case. Mr. Ali B Amjad, learned counsel for the petitioner complained before us that under subsection (3) of section 3 of the Employees' Cost of Living (Relief) Act, 1973, the employer is required to pay a sum of Rs. 75 per month as the increase in the cost of living allowance and, therefore, the employer will be overburdened by paying an additional amount of Rs. 60 under the award of the Tribunal. This argument of the learned-` counsel has no force. The appellant can take advantage of the provision of section 8 of the Act, which reads as under:- "8. Saving of certain rights and privileges.-Nothing in this Act shall affect any right or privilege to which an employee was entitled,-
(a) in the case of the cost of living allowance payable under sub--section (1) of section 3, immediately before the commencement of the Employees' Cost of Living (Relief) Ordinance, 1973, or
(b) in the case of the cost of living allowance payable under sub--section (2) of section 3, immediately before the commencement of the Employees' Cost of Living (Relief) (Amendment)
7. Act, 1974, or
(c) in the case of. The cost of living allowance payable under sub--section (3) of section 3, immediately before the commencement of the Cost of Living (Relief) (Amendment) Ordinance, 1975. under any law for the time hoeing in force or under any award, decision, agreement, settlement, contra ct, custom of usage in force immediately before such commencement: Provided that, if, at any time commencing on or after the first day of August, 1973, but preceding the commencement of the said Ordinance or, as the case may be, commencing at or after the commencement of the said Ordinance; but preceding the Commencement of the Employees' Cost of Living (Relief) (Amendment) Act, 1974, any employer has paid, or become liable to pay whether by virtue of an award, decision, agreement, settlement, contract, custom or usage, to any employee, in respect of any period, any sum 9f money, which is intended to provide relief due to arise in cost of living, such employer shall not be required to pay to such employee - in respect of such period any amount in excess of the difference, if any, between the amount so paid by him or the amount which he has so become liable to pay, and the cost of living allowance payable to such employee."
8. The above provision of law makes it permissible for an employee who has become liable to pay an amount under an award of the Court which is intended to provide relief due to a rise in cost of living to' adjust the amount so payable by him from the amount which is paid by him under subsection (3) of section 3 of the Act, and pay only the difference between the two amounts we, therefore, see no reason to interfere with the order of Tribunal in so far payment of these allowances are concerned. With these observations the C petition is allowed to the extent indicated above but there will be no order as to costs.