The decision, dated 7-1-1985 recorded by learned Labour Court No. 5, Faisalabad has been challenged whereby grievance petition of the respondent was accepted and the appellant was directed to fix the pay of the respondent including in it 55$ running allowance.
2. The facts are that the respondent was a Foreman in the Running Staff and in an accident was incapacitated from serving as such on account loosing of one leg. He was absorbed as a Shed Man in Scale No. 8. As Fireman he was in Scale No. 5. While fixing his pay he was not allowed 55$ running allowance which he was getting as a Fireman. He relied upon award copy of which is Exh. P.
10. According to demand No, 11 of the said award it was agreed that the scale of pay of employees belonging to the Running Staff should be protected. The learned lower Court has relied upon the said award and rules 2003 (FR-9)(2)(3) and has directed the appellants to include 55 running allowance which the respondent was getting as a Fireman. Neither demand No. 11 of award Exh. P.
10 nor the rule cited in the learned lower Court judgment support the case of the respondent. The words in clause No. 11 of award Exh. P.10 are not that the employees belonging to the Running Staff when absorbed in other categories due to having been incapacitated from serving on a post belonging to the Running Staff, would be entitled to 55$ running allowance. What actually is written reads: - "scale of pay would be protected" Scale as of the basic pay included yearly increment earned by an employee and but by any stretch of imagination includes any allowance unless the employer or any authority competent in that behalf has expressly included allowances in the pay.
Wages may include allowances but 'pay' cannot include any allowances. 55% running allowance is allowed to those members of the Running Staff who are discharging stationary duties. This mean that allowance is allowed in lieu of mileage allowance. Mileage allowance is allowed when the members of the Running Staff travel with the trains. Learned counsel for the respondent had taken time to cite some authority in support of the case of the respondent but instead of citing any authority he has not appeared. He has sent the Gazette in which the award was published. The award has mentioned above does not say that 55% running allowance drawn by the members of the Running Staff was protected while absorbing such members in other categories. The learned Lower Court did not consider that pay does not include allowances and thus fall in arrear in interpreting the award to mean that 55% allowance is also protected. No doubt in case Railway v.
Abdul Majid copy of which is Exh. P. 9 my learned Predecessor had observed that 55 was protected but with great respect I do not find myself in agreement with the view depressed by him. Definition of pay is given in rule 2003, which reads as under: - "Pay means the amount drawn monthly by a railway servant.
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(iii) any other emoluments which may be specially classed as pay by the Governor-General."
It is clear from the definition that if any emoluments have been specially classified by the Governor as 'pay' they would form part of the salary. There is no rule or order of the Governor to the effect that 55 running allowance well be part of pay. No doubt in the definition of average pay the average running allowance taken during 12 months is included but it is for the calculation of the average pay to which an employee would be entitled during leave. Specifically it was done in order to calculate the wages, which an employee can get when he is on earned leave. This shows that running allowance is not part of pay and if the intention is to include in it for a particular purpose it can be allowed by provisions of law and not as a matter of our. There is no provision that when a member of the Running Staff is absorbed in other category 55% running allowance which he was getting when he was member of the Running Staff would be paid to him. Likewise the terms of pay or full pay have been defined to include pay or wages, which the railway servant concerned would have drawn had he remained on duty. It is apparent that in order to determine the wages which an employee has to get when he is on earned leave it has been said that wages, which the railway servant was taking would be considered. Again specifically running allowance has been included.
The note given under the definition further shows that for the purpose of calculating the pay during leave period running allowance has been included. If a member of the Running Staff retires of course, 55% running allowance is to be included to calculate the pension, because he retires while belonging to the Running Staff. When an employee is absorbed in other categories obviously he ceases to remain member of Running Staff and thus by no strech of imagination he can be said to be entitled to the 55% running allowance that he was getting as member of the said staff. In cases where due to the exegencies of service employees belonging to Running Staff are transfer posted on posts not belonging to the said staff, 55% running allowance may be allowed as an impetus for them to accept such transfers and postings but in the cases where an employee is incapacitated and he is favoured under the rules to be absorbed in other categories where their incapacitation does not create any bar, no question of giving an attraction to them arises, therefore, unless specifically by any rule it is provided that they will be entitled to the 55$ running allowance which they were getting as the members of Running Staff they cannot claim it as of right. An allowance which is meant for a particular class of workers cannot be allowed to others unless the employer by a specific order allows to them or any rule has been made to that effect. The learned lower Court, therefore, wrongly held that the respondent was entitled to 55% running allowance over and above the pay fixed by the appellant in Scale No. 8. The respondent has already been benefited for being given Scale No. 8, which is three steps above the scale in which he was working as Fireman.
3. As a result of the observations made above, the appeal is accepted and setting aside the impugned decision grievance petition of the respondent is dismissed.
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