' The three appeals captioned above arise from the decisions, dated 3rd July, 1982 delivered by the learned Presiding Officer, Punjab Labour Court No, 2, Lahore. Since all the three appeals arise from the same decision, they are being disposed of together through this single judgment, in which Pakistan Railways will be described as the appellant and Akhtar Hussain and all other employees as the respondents.
2. The respondents claimed in their grievance petitions that wages for overtime were to be calculated including heat allowance, conveyance allowance and house rent allowance. The learned lower Court included heat allowance and conveyance allowance for the calculation of overtime wages but has refused to include house rent allowance. The appellant has in its appeals challenged the inclusion of heat allowance and conveyance allowance, whereas the respondents have in their appeal claimed the inclusion of house rent allowance as well. The provision of overtime wages is contained in section 47 of the Factories Act. Learned counsel for the appellant has argued that Railway Act, being a special enactment meant for Railway employees only, will apply when there is a conflict between its provisions and the provisions of the Factories Act, so section 47 of the latter Act is not applicable. This may be principally correct but vide Exh. R-2 the explanation added to section 47 of the Factories Act has been adopted by the Railway, so the argument has no force. In the explanation the term ordinary rate of pay for the purposes of overtime pay has been explained to' mean "all remunerations payable to a worker in respect of his employment or of work done in such employment. The words "in respect of his employment" are all embracing and doing of work in such employment is not necessary. The word 'or' occurring in between the phrases "in respect of his employment" and "of work done in such employment" is disjunctive, therefore, any one of the two condition is sufficient and not both. Needless to say that all the three kines of disputed allowances are paid to the workers in respect of their employment. If the respondents had not been the employees of the appellant, they would not have been entitled to the said allowances. The other condition is that remunerations should be those that are capable of being expressed in terms of money. The consideration of service which is not capable of being expressed in terms of money is not to be included in the salary while calculating overtime wages.
Such consideration of service can be for example service of tea, use of electric heaters or coal for comfort in winter or supply of ice and use of desert coolers, if any, in summer. They may be the consideration of employment but since they are not capable of being expressed in terms of money, they will be ignored while calculating overtime wages. The three kinds of the disputed allowances since are payable in respect of employment and are capable of being expressed in terms of money, they are the part of the considerations of employment and when terms of the contract of employment have been fulfilled, the employer is bound to pay the same overtime wages as are paid for the ordinary, performance of duty and only difference is that extra time from the employees is taken. So by no stretch of imagination it can be said that the employee is not entitled to all remunerations for extra time that he is entitled to get for working during usual working hours.
3. The other condition is that the employee is entitled to wages for giving overtime and not to mere amenities. In the exclusion clause (i) amenities have been excluded. Amenities are only pleasing objects and not considerations of employment. As observed supra supply of ice and use of desert coolers in summer and heaters in winter are on one hand not capable of being expressed in terms of money on the other are mere pleasing objects. This is in the interest of the employer to allow these amenities which may be more appropriately called facilities. Quality and quantity of work are improved by allowing these facilities. If the employees are feeling very thirsty in summer, obviously they would not work as efficiently as they do in normal circumstances. They are duty bound to work efficiently and to give the required output but in abnormal circumstances the work is apt to remain below average. Likewise during hard winter the elasticity of hands is adversely affected , resulting in poor quality and quantity of work. Attendance allowance is an example of amenity. If employee's attendance is regular in other words if they sacrifice their private matters and do not take leave frequently they are paid "attendance allowance" by some employers. This allowance is not in lieu of right to leave but is paid for not] exercising right to take leave. Unavailed of leave is deposited according to rules or terms and conditions of service and besides this "attendance allowance" is paid. In factories regular attendance is a thing of great importance. The work and output of one section or branch depends upon the output of other. Some components of an article under manufacture are prepared in one section and other components in the other. Some articles are such that each component undergoes many manufacturing processes one after the other in many sections. Suppose a mug is to be prepared. A piece of metal will be taken. It will under go the process of pressing in many pressing machines to be given the shape of sheet of required thickness and dimensions. It will then go to the moulder for being given the shape of a mug. After this is done, it will go to another machine for being put two holes for the fixation of a handle.
Another machine handles of the required size are being prepared. Then the mug and the handle will go to another worker who would fix the handle. Thereafter, a finishing touch will be given by another worker. And now finally the mug is ready for being sent to the market. Now if one of the machines, where any process is to be done for the preparation of the mug, is not functioning on account of the absence of a worker, the other machines shall have to remain idle and in this way the business of the proprietor will suffer. He, therefore, is interested in this that its employees should be punctual and for this reason he gives an impetus by allowing attendance allowance for regular attendance. But this is not the consideration of service not being included in the terms of employment. He pays that kind of allowance for his own benefit, but for the workers, it is a pleasant thing being over and above the terms of employment. Such allowances are mere amenities and the workers cannot claim them as of right as part of their remunerations and thus such allowances cannot be included in overtime wages. Heat allowance is paid not for atmospherical heat but for artificial heat generated by the working of c the machines, whereas ice and desert coolers are used on account of seasonal heat. There appears therefore to be no reason why heat allowance should not be taken by the workers who give overtime when for discharging ordinary duties they are entitled to it. This kind of allowance is not contingent upon the fulfilment of any special condition. P.W. 1 stated that the workers are paid heat allowance for working in excessive heat in all seasons. This was not denied by P.W.
1. He, no doubt, said that the workers did not work in heat for all working hours but did not say that the respondents work on different kinds of machines out of which same generate excessive heat and others not. The evidence of R.W. 1, therefore, in this respect stands unrebutted. R.W. 1 did not say that heat allowance is not paid when the workers go on leave. So this kind of allowance is a fixed allowance not contingent upon the fulfilment of any condition,
4. Conveyance is allowance different in nature. It is allowed on the contingency of using and maintaining a conveyance for coming to and returning from the place of duty. This is not allowed to those who as stated by R.W. 1 are allotted residential quarters. R.W. 1 also said that conveyance allowance is not paid to workers when they are on leave with pay. R.W. 1 did not say that the workers get conveyance allowance even when they are on leave. One criteria to see if a particular allowance is part of pay is, whether it is paid unconditionally even when one is on leave. Needless to say that one is entitled to those remunerations during leave period which are part of pay. I Obviously when a worker is on earned leave, he does not use the conveyance maintained by him for coming to and going from the place of his duty. When one is on earned leave, he is deemed to be in service and enjoys leave as of right under the contract of service. If any allowance allowed to him otherwise is not paid during leave according to terms and conditions of service, it means that the said allowance is not paid to the worker as a remuneration but only as amenity and for the purposes of overtime cannot be considered as part of pay. Learned counsel for the respondent has cited 1981 PLC 800 but the same is distinguishable. Conveyance allowance was considered part of pay for gratuity and not for overtime wages. He has cited number of other rulings and I have gone through them but they are not germane to the facts under discussion.
5. On the contrary house rent allowance is part of wages. Learned counsel for the appellant has relied upon PLJ 1982 Lab. 185 but the same is distinguishable from the facts of the present case.
The said ruling is based upon the definition of wages given in Social Security Ordinance, whereas in the present case we are concerned with the definition given in the Factories Act and the term 'rate of overtime wage's as defined in section 47 of the Factories Act. It has been observed in the said ruling that house rent allowance does not bear a direct nexus to the service rendered by the E employees. In the said case there may not be any such nexus between the parties to the said case about the house rent allowance, but this is no body's case here that house rent allowance is not covered by the terms and conditions of service. If an allowance is paid even during earned leave, it does not mean that it is paid while performing duties. I have mentioned above that earned leave is a right according to the terms of employment and while a worker is enjoying that right, he is deemed to be in service and is not to be considered out of service for the purpose of house rent.
Rather his entitlement to it even during leave period shows that this is a permanent kind of allowance and is part and parcel of the wages. This is worthwhile to note that when R.W. I said that an employee on leave is not given conveyance allowance, he did not say that he does not get house rent allowance as well. This is necessary to point out that in exceptions of explanation of section 47 of the Factories Act, house rent allowance is not mentioned. Value of house accommodation has been excluded, which is quite different in its nature from house rent allowance. The latter allowance is in terms of money, whereas the former is not capable of being expressed in terms of money. House accommodation means house allotted for residence. So when a house or quarter has been allotted, its value whatever it may be will not be included while determining overtime wages. Since house rent is paid in cases where no house has been allotted or provided and the same is paid permanently, irrespective of the fact whether the employee is on leave p or not, it is to be included in wages for the purposes of overtime wages. As I have mentioned in the earlier part of this judgment, that the word 'or' occurring in between the phrases "in respect of his employment" and "of I work done in such employment" is disjunctive. Word 'or' is always I disjunctive. If the said word 'or' is read as 'and' then the whole thing I would become absurd because even the basic pay would go out of consideration.
6. As a result, the appeals of the Railways and the cross-appeal of the wrokers are partly accepted and the impugned decision of the learned lower Court on the points of conveyance allowance and house rent allowance are reversed, disallowing the inclusion of conveyance allowance and allowing the inclusion of house rent allowance in the calculation of overtime wages. The finding of the learned lower Court on the inclusion of heat allowance in the calculation of over time wages is upheld.