1. ' In this appeal the decision dated 29-11-1984 given by the Presiding Officer III Labour Court Baluchistan Quetta in Application No,71 of 1983 filed by the respondents under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter called the I.R.O.) has been challenged.
2. ' The respondents Ali Muhammad and Liaquat Ali were employed with the Pakistan Mineral Development Corporation Ltd. (P.M.D.C.) as Drivers at Degari and were required to drive school vans/Ambulance taking children of the employees from Degari to Quetta and back. A grievance notice, dated 16-7-1983 was issued by the respondents and it was claimed that they should be given daily allowance for 31 years and 2 years and seven months preceding the notice. On the refusal of the appellant to concede the demand, a joint application (Application No,71 of 1983) was filed on 21-8-1983 before the Presiding Officer IIIrd Labour Court Baluchistan, Quetta. It was the case of the appellant before the Labour Court and also in reply to the grievance notice that in view of the nature of duties of the respondent being employed on School Bus/Vans the Quetta City is supposed to fall within the jurisdiction of Headquarters in terms of clause 45(b) of P.M.D.C.
3. Travelling Allowance rules as such no Daily allowance was admissible to the Respondents. The respondents usually started at 6 a.m. And returned at 3 p.m. Since the period covered more than usual six working hours they have been paid overtime at the rate of 3 hours per day to compensate them for working on School Bus/Vans which has been accepted by them without any protest.
4. Further by an agreement executed/signed on 17-3-1983 between the Collective Bargaining Agent
(CBA) Union and the Management of P.M.D.C. Degari the daily allowance was not payable to drivers attached to Bus and School vans or ambulance.
5. ' In the reply statement filed on 5-10-1983 in reply to the application filed in Labour Court the following legal objections were also raised:-
(a) That the applicants have failed to show sufficient cause for non-preferring the application within the prescribed time. Van service was started in the year 1971 while the application was filed after lapse of 12 years as such it was barred by time.
(b) That in view of the agreement made with the representatives of the employees the applicants were estopped under law to challenge the same.
(c) That without prejudice to the above the applicants have received overtime allowance. They cannot be allowed to approbate and reprobate and are estopped from claiming the same.
6. ' On merits it was stated that Liaqat All was posted as Driver in March, 1981 while Ali Muhammad in November, 1979. And according to the nature of the duties and the C .B. A. Agreement the applicants are not entitled to T.A/D.A. And it was pleaded that since the applicants have accepted over-time at the rate of 3 hours per day the claim advanced by them is not admissible.
7. ' Before the Labour Court the respondents appeared as their own witnesses while on behalf of the Management/Appellants Raza Ahmed Mushtaq and Muhammad Aslam were produced. The learned Labour Court vide its decision, dated 29-11-1989 allowed the grievance petition and accepted the claim for payment of dues of Daily Allowance and directed the appellants to pay Rs,9,660 (for 322 total days worked at the rate of Rs,30 per day to Ali Muhammad and Rs,16,920 (for 564 days worked at Rs,30 per day to Liaqat respondent. These payments were to be paid within 7 days of the passing of the orders.
8. ' Mr. Muhammad Aslam Chishti Advocate for the appellants has raised the following contentions before me:-
(a) That since the Labour Court has proceeded on the assumption that the claim preferred by the present respondents is wages the jurisdiction of the Labour Court was barred. The claim could be preferred before the Authority appointed under the Payment of Wages Act and the Labour Court being appellate authority under that Act could not entertain and decide the claim;
(b) That under the Payment of Wages Act daily allowance being part of Travelling allowance has been excluded from the definition of wages under clause 6 of section 2 of the Act, 1936.
(c) Because of the exclusion of the, claim as Wages the claim was barred by time.
(d) That since under the PMDC's Rules the Daily allowance is linked with T.A. And there was No,T.A.
9. Permissible to the respondents as they have only performed their normal duty, the claim of D.A.
10. Was misconceived. The proviso to section 15 of the Payment of Wages Act was not attracted and the grievance petition was time barred.
(e) That since the respondents have received overtime allowance for the same period no claim for D.A. Could be entertained for the same period.
(f) In view of the settlement arrived at between C.B.A. And the management the claim for Daily allowance was not maintainable.
(g) In any case, even if the plea of appellants is not accepted, then the amount awarded by the Labour Court is liable to be adjusted against the overtime allowance which the respondents have admittedly received.
11. ' Mr. Chishti explaining his contentions submitted that the decision of the Labour Court proceeds on the assumption that the claim was in respect of wages. 'Wages' has been defined in section 2(vi) of the Payment of Wages Act, 1936 and means all remunerations, capable of being expressed in terms of money, which would if the terms of the contract of employment, express or implied, were fulfilled, be payable, whether conditionally upon the regular attendance, good work or conduct or other behaviour of the person employed or otherwise, to a person employed in respect of his employment or of work done in such employment, and includes any bonus or other additional remuneration of the nature aforesaid which would be so payable and any such payment to such person by reason of the termination of his employment, but does not include:- (a)
(b) .
(c) any travelling allowance or the value of travelling concession;
(d) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or
(e) .
12. ' Rule 14 of the Travelling allowance Rules framed for the employees of the P.M.D.C. Reads:- ' Different kinds of travelling allowance.-- The following are different kinds of travelling allowance which may be drawn in different circumstances.
(a) Mileage allowance (b) Daily allowance. (c) Actual cost of travelling.
13. ' Thus daily allowance would come with the concept of travelling allowance and depends on performing touring duties. And rule 9 classifies different classes of journey in respect of them the travelling allowance may be drawn and they have been enumerated as (i) On Tour (ii) On Transfer
(iii) To appear at an examination as authorised by the corporation (iv) On recall from leave (v) To give evidence to attend a Court of law etc. (vi) To obtain medical treatment and in attendanae of an incapicitated employee (vii) on a course of Training (viii) Any other purpose authorised by competent Authority.
14. ' Daily allowance is mentioned in rule 40 which provides that a Daily allowance is a uniform allowance for each day of absence from Headquarters and is intended to cover the ordinary daily charges incurred by an employee in consequence of such absence. Subject to the provisions of rule 46, it is expected to cover the elements of lodging, board, transport and incidental expenses.
15. And rule 46 provides that "An employee who has, of necessity to stay in Hotel, shall, in addition to the Daily Allowance in rule 41 be allowed reimbursement of actual single room rent- subject to the production of Hotel receipts/ Vouchers (rule 41 indicates the rates of daily allowance.).
16. Thus daily allowance comes with the concept of travelling allowance and becomes a part of travelling allowance. In the instant case the respondents are employed on school Bus/Vans which run between Degari and Quetta and perform the entire journey during the day upto 3 or 3.30 p.m.
17. And for such journey the drivers spent a few hours more than usual duty hours working beyond normal hours entitles a worker to overtime and not daily allowance and the admitted position is that they are paid overtime allowance. This aspect of the case has escaped the attention of the learned Presiding Officer of the Labour Court. It is my considered view that the respondents can have no grievance on that score.
18. ' There is yet another aspect of the case. The workmen employed in P.M.D.C. Have formed a registered trade union which has been declared as their Collective Bargaining Agent. It is undisputed that certain disputes had arisen with the management and one such dispute related to the demand of the Drivers as contained in Demand No,24(A). The said Demand was that "Drivers doing duty outside Degari may be paid T.A./D.A. And this demand was settled in these words:- "It is agreed that those drivers who are not specifically attached with Bus and School Vans, whenever proceed on official duty to Quetta will be paid D.A. As per P.M.D.C. T.A. Rules."
19. The settlement/agreement was signed on behalf of the C.B.A. By the office bearers of their recognized Union on 17-3-1983. This settlement is binding on the respondents in view of section 4 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
20. (Hereinafter referred to as the Ordinance.)
21. ' Mr. Aslam Chishti, Advocate for the appellant has submitted that under this settlement the respondents being specifically attached with Bus and School van are not entitled to any Daily Allowance on the other hand Mr. Tariq Mahmood, the learned counsel for the Respondents has contended that this Settlement is not binding on his clients as according to him it is in violation of their rights.
22. ' To appreciate the contentions it is proper to reproduce the relevant provisions and these are section 2(a) and section 4 of the Ordinance:- ' Section 2(a) "Collective agreement" means an agreement in writing, intended to specify the conditions of employment, and entered into between one or more employers on the one hand, and one or more trade unions or, where there is no trade union, the duly authorized representatives of workman, on the other;"
23. ' Section 4.-- Modification of standing orders; the standing Orders may be modified by means of a collective agreement and not otherwise: ' Provided that no such agreement shall have the effect of taking away or diminishing any right or benefit available to the workmen under the provisions of the Schedule."
24. 'A plan reading of the above provisions indicate that the standing Orders provided in the Schedule to the Ordinance can be modified by a Collective agreement provided that such an agreement does not take away or diminish any right or benefit available to the workmen under the provisions of the Schedule. There cannot be any doubt that the settlement referred above could be termed as a Collective Settlement. It has already been demonstrated in this judgment that the respondents are not entitled to the Daily Allowance. This collective settlement merely clarified the position. Mr. Tariq Mehmood has in support of his contention, referred to some decision but it is not necessary to dilate on this point any further, because I am of the considered view that this agreement is not illegal nor is void being contrary to any right guaranteed to the respondents and the collective agreement is in no way less favourable and the respondents cannot assail this agreement before the Labour Court or before any other forum.
25. The findings that the respondents have no right guaranteed and the collective agreement binds the respondents are enough to set aside the impugned orders made by the Presiding Officer Labour Court. I accordingly accept the appeal and set aside the orders/decision, dated 29-11-1984 passed by the Labour Court and the Application No,71 of 1983 filed by the respondents stands dismissed. There shall be no order as to costs.