1. This judgment will dispose of the following eighteen constitutional petitions: -
(i) S-62/83--Government of Sind v. Muhammad Attique and others;
(ii) S-86/83--Executive Engineer v. Bashir Ahmad and others;
(iii) S-91/83--Government of Sind v. Muhammad Hussain and others;
(iv) S-108/83--Government of Sind v. Mustafa Haider and others;
(v) S-109/83--Executive Engineer v. Izhar Hussain and others; .(vi) S-110/83--Government of Sind v. Rehmat Khan and others;
(vii) S-112/83--Government of Sind v. Hussain and others;
(viii) S-142/83--Executive Engineer v. Eid Muhammad and others;
(ix) S-143/83--Executive Engineer v. Amir Bux and others;
(x) S-144/83--Mechanical Engineer v. Muhammad Anwar Bhatti and others; (xi)S-145/83--Executive Engineer v. Hazoor Bux and others;
(xii) S-146/83--Mechanical Engineer v. Abdul Ghaffar and others;
(xiii) S-147/83--Executive Engineer v. Ghulam Muhammad and others;
(xiv) S-1/84--Executive Engineer v. Muzaffar Ali and others;
(xv) S-2/84--Executive Engineer v. Manzoor; Hussain and others;
(xvi) S-3/84--Mechanical Engineer v. Abdul Aziz and others;
(xvii) S-4/84--Executive Engineer v. Nusrat Hussain and others; and (xviii) S-19/84--Executive Engineer v. Rahim Bux and others.
2. In all these eighteen constitutional petitions the point involved is whether the private respondents, who are employees working in the Irrigation and Power Division of Sind Government, are entitled to the additional cost of living allowance at the rate of Rs.40 with effect from 1-7-1980, and another additional cost of living allowance at the rate of Rs.40 with effect from 1-7-1981, given under Ordinance XXXII of 1980 and Ordinance XXV of 1981 respectively.
3. Employees' Cost of Living (Relief) Act, 1973 (hereinafter referred to as "the Act") was enacted to provide for payment of a cost of living allowance to employees. Section 2(b) of the Act defines the term "employee" who is entitled to the cost of living allowance given under the Act. Section 3 of the Act provides that every employee, whose wages do not exceed seven hundred thirty-five rupees, shall, in respect of his employment on or after the first day of August, 1973, be paid by his employer a cost of living allowance equal to thirty-five rupees per month, if his wages do not exceed seven hundred rupees or at such rate as, together with his wages, makes a total of seven hundred and thirty-five rupees per month, if his wages are more than seven hundred rupees. Thereafter, various amendments were made by Ordinances amending the Act of 1973 providing additional benefits to the employees by way of cost of living allowance. Subsection (4) was added to section 3 of the Act by Ordinance XXXII of 1980 and it reads as follows:- "(4)In addition to the cost of living allowance admissible under subsections (1) and (2) or, as the case may be, subsection (3), if any, every employee whose wages do not exceed one thousand and five hundred rupees, shall, in respect of his employment, on or after the first day of July, 1980 whether on time-work or piece-work basis, be paid by his employer a cost of living allowance equal to Rs.40 (Rupees forty only) per month: Provided that the said cost of living allowance shall be set off:
(a) Against the amount payable under an agreement of settlement reached or an award given, under the Industrial Relations Ordinance, 1969 (XXIII of 1969) which has been announced and become effective on or after the 1st day of January, 1980 or which is announced and becomes effective within a period of one year of the commencement of the Employees' Cost of Living (Relief)
2. (Amendment) Ordinance, 1980 and
(b) Against the amount payable under an award given under the Newspaper Employees (Conditions of Service) Act, 1973 (LVII of 1973), which becomes effective from the fifteenth day of April, 1980."
3. Then subsection (5) was added by the amending Ordinance XXV of 1981 to section 3 of Employees'
4. Cost of Living (Relief) Act, 397: and it reads as follows:- "(5) In addition to the cost of living allowance admissible under subsections (1), (2) and (3), or as the case may be, subsection (4). If any, every employee whose wages do not exceed Rs.1.500 shall, in respect of his employment on or after the first day of July, 1981, whether on time-work or piece work basis, be paid by his employer a cost of living allowance equal to Rs.40 per month:
4. The additional cost of living allowances payable under the said amending Ordinances of 1980 and 1981, incorporated through addition of subsection (4) and subsection (5) in section 3 of the Act, were not given by the petitioners to the private respondents in these constitutional petitions and as such the private respondents filed applications under section 15/16 of Payment of Wages Act, 1936, before the Authority appointed under the Payment of Wages Act, at Hyderabad. The Authority allowed the applications and directed the amounts payable to the private respondents' under the two amending Ordinances to be deposited with the Authority. The petitioner's (the Government) filed appeals under section 17 of the Payment of Wages Act challenging the orders of the Authority but the same were dismissed by the Presiding Officer, Labour Court VI, Hyderabad. Being aggrieved, the petitioners (Government) have filed the present constitutional petitions. I have heard at length the arguments of Mr. Sayeed A. Shaikh, learned Advocate-General Sind, who appeared on behalf. Of the petitioners in all these petitions and Messrs Ali Amjad and Nooruddin Sarki, learned counsel, who appeared on behalf of the private respondents. In reply Mr. Hasan Akbar, Advocate, addressed arguments on behalf of the learned Advocate-- General.
5. On behalf of the petitioners, the learned Advocate-General raised the following three main contentions:-
(a) Respondents' applications under section 15/16 of the Payment of Wages Act, 1936, were not maintainable in view of the provisions of section 7 of the Employees' Cost of Living (Relief) Act, 1973.
5. Section 7 of the Act provides that the cost of living allowance shall form part of wages of a worker but proviso to the said section, inter alia, is to the effect that for the purposes of Payment of Wages Act, 1936, the cost of living allowance shall not form part of the wages of a worker. According to the learned Advocate-General, as the proviso to section 7 of the Act provides that for the purposes of the Payment of Wages Act, 1936, the cost of living allowance shall form part of wages of a worker, no application could be filed under section 15/16 of the Payment of Wages Act, 1936, by the respondents for recovery of any cost of living allowance.
6. When the learned Advocate-General was referred to section 6 of the Act, the learned Advocate- General admitted that section 6 clearly provides that where, contrary to the provisions of the Act, the cost of living allowance has been withheld or its payment delayed, the concerned employee, if he falls under subsection (b) of section 6, can file an application under section 15 of the Payment of Wages Act, 1936, for recovery of such cost of living allowance. But it was contended by the learned Advocate-General that there being an obvious contradiction in the two sections, i.e. Section 6 and section 7, under the principles of interpretation of Statutes, the latter section i.e section 7 shall prevail as the two sections cannot be reconciled.
7. I am not impressed by the argument raised on behalf of the Government that the provisions of sections 6 and 7 are contradictory to each other and cannot be reconciled. As rightly pointed out by Mr. Ali Amjad, learned counsel, who appeared for the respondents in several of these petitions, proviso to section 7 of the Employees' Cost of Living (Relief) Act, 1973, does not nullify section 6(b) so that no employee, who is entitled to the cost of living allowance and whose cost of living allowance has been withheld or delayed can file an application under section 15 of the Payment of Wages Act, which is the specific remedy provided to such employee for recovery of the cost of living allowance under section 6(b) of the .Act. The forum has been provided for recovery of cost of living allowance by section 6(b) and that is the Authority under the Payment of Wages Act. The object of the proviso to section 7 of the Act is obvious. A reference to the various provisions of the Payment of Wages Act, 1936, would show that various actions can be taken against an employee, which affects his wages e.g. Under section 7, certain deductions can be made from the wages of an employee; under section 8, fines can be imposed, but the total amount of fine imposed in any one wage period on any employed person cannot exceed an amount equal to half an anna in a rupee of the wages payable to him in respect of that wage period; section 9 relates to deductions from wages on account of absence from duty; section 10 talks about the deductions for damage or loss; section 12 relates to deductions for recovery of advances, etc. For all such deductions, cost of living allowance is not to form part of the wages of an employee in view of the proviso to section 7 of the Employees' Cost of Living (Relief) Act, 1973. Proviso to section 7 does not nullify section 6(b) of the Act. I find no inconsistency in sections 6 and 7 of the Act.
8. For the purposes of recovery of the cost of living allowance by an employee, his specific remedy provided by section 6(b) is to approach the Authority appointed under section 15 of the Payment of Wages Act, 1936 but for the purposes of the Payment of Wages Act, 1936 and other laws mentioned in the proviso to section 7, cost of living allowance is not to be considered as part of the wages of an employee. The cost of living allowance may not part of the wages of an employee under the Payment of Wages Act, 1936 but from this it does not follow that no application could be made under section 15 of the Payment of Wages Act, for recovery of such cost of living allowance, as section 6 itself provides that for recovery cost of living allowance, the remedy of the concerned employee is to file an application to the Authority appointed under subsection (1) of section 15 of the Payment of Wages Act, 1936, and section 6(b) further provides that sections 6, 16, 17, 18, 19, 22, 23 and 26 of the Payment of Wages Act, 1936, shall so far as may be and with the necessary modifications, apply for the purposes of recovery of the cost of living allowance.
9. I am, therefore, of the view that the remedy for an employee: who is entitled to the cost of living allowance under the provisions of the Employees' Cost of Living (Relief) Act, 1973, is to apply to the Authority under section 12(1) of the West Pakistan Shops and Establishments Ordinance, 1969, if his case falls under subsection (a) of section 6 and in respect of other employees to apply to the Authority appointed under section 15(1) of the Payment of Wages Act, 1936. 1 am, further of the view that there is no conflict between section 6 and Proviso to section, 7 of the Employees' Cost of Living (Relief) Act, 1973.
10. The other contention of the learned Advocate-General was that the employees of the Government are excluded from the definition of an employee given in section 2(b) of the Employees' Cost of Living (Relief) Act, 1973, and as such the respondents, being admittedly employees of the Government of Sind, are not entitled to the cost of living allowance payable under the Employees'
11. Cost of Living (Relief) Act, 1973. I find no provision in the Employees' Cost of Living (Relief) Act, 1973, which excludes Government employees from the benefit of this Act provided they otherwise fall within the definition of "employee" given in section 2(b) of the Act. A Government employee, just because 1 he is an employee of the Government, is not excluded from the benefits of this Act or else the Act would have provided so. It may be observed here that the private respondents are work- charged employees. No argument was raised on behalf of the Government that they are Civil Servants.
12. The additional argument in respect of this contention raised by the learned Advocate-General that the Irrigation Department, where all the respondents have been working, is not an "undertaking" and as such the respondents do not fall within the definition of "employee" given in section 2(b) of the Act, which definition reads as follows:- "Employee" means any person employed, whether directly or through any other person, for wages, to do any skilled or unskilled, intellectual, technical, clerical, manual or other work in, or in connection with the affairs of, an undertaking, under any contract of service or apprenticeship, whether written or oral, express or implied and includes such a person when laid off, but does not include a person for whom a provision has been, or may be made by the Federal Government or a Provincial Government for grant of an allowance intended to provide relief due to a rise in the cost of living."
13. The term "undertaking" has been employed in the definition of "employee" and "undertaking" itself has been defined in section 2(d) as follows:- "Undertaking" means:
(i) an establishment to which the West Pakistan Shops and Establishments Ordinance, 1969 (W.P.Ordinance No.VIII of 1969), for the time being applies, and notwithstanding anything contained in section 5 thereof, includes clubs, hostels and messes not maintained for profit or gain and establishments for the treatment or care of the sick, infirm, and destitute or mentally unfit persons;
(ii) a construction industry to which the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (W.P. Ordinance No.VI of 1968) for the time being applies;
(iii) a factory as defined in the Factories Act, 1934 (XXV of 1934);
(iv) a mine as defined in the Mines Act, 1923 (IV of 1923);
(v) a road transport service as defined in the Road Transport Workers Ordinance, 1961 (XXVIII of 1961);
(vi) A newspaper establishment as defined in the Newspaper Employees (Conditions of Service)
14. Act, 1973 (LVIII of 1973); and Includes any class of establishments which the Federal Government may, by notification in the official Gazette, - declare to be undertakings for the purposes of this Act."
15. For two reasons I am not allowing the petitioners (Government) to raise this contention. Firstly this point was not raised either before the Authority or before the Labour Court, and, secondly, for deciding g this point a factual inquiry/investigation, would be necessary which exercise cannot be undertaken in the circumstances of these cases under the Constitutional Jurisdiction.
(c) The last contention of the learned Advocate-General was that none of the private respondents was covered by the definition of "employee" given in section 2(b) of the Act as admittedly the Sind Government had from 1973 to 1979 on three or four occasions sanctioned additional dearness allowance to Government employees to meet the rising cost of living. According to the learned Advocate-General, as admittedly the Sind Government had made provision for grant of allowances to provide relief due to a rise in the cost of living, private respondents were excluded from the definition of "employee" and as such they are not entitled to the cost of living allowances given by the amending Ordinances of 1980 and 1981. Reliance was placed on a recent judgment dated 6-2-1986 of a learned Single Judge of this Court in Constitutional Petition (Sukkur) No.149 of 1985 in the case of Agricultural Engineer v. Abdul Karim and others. Dealing with the identical question Mr. Justice Saeeduzzaman Siddiqui observed as follows: - "While the petitioners contended that if a provision has been made by the Provincial Government for a person to provide allowance which intended to grant relief against rising cost of living then the provisions of the Act would not be applicable to such person as he will not fall within the definition of 'employee', the learned counsel for the respondents jointly contended that no doubt the person for whom provision has been made by the Provincial Government for grant of allowance intended to provide relief due to rise in the cost of living will be excluded from the definition of the 'employee' but where the Provincial Government failed to make provision for payment of such allowance in accordance with the Act, he will not be so excluded. The case of the respondents before the Authority was and it is also repeated before me, that the Government of Sind during the year 1973 to 1975 on three different occasions sanctioned special dearness allowance to respondents to meet the rising cost of articles of daily use and, therefore, for that period no application was maintainable by the employees of the Sind Government. It is, however, the case of the petitioners that as after the introduction of subsections (4) and (5) in the year 1980 and 1981 respectively in section 3 of the Act there was no corresponding allowance sanctioned by the Government of Sind to its employees, therefore, they were entitled to invoke the jurisdiction of the Authority for the purpose of realising C.L.A. In terms of subsections (4) and (5) of section 3 of the Act. In other words the contention of the learned counsel for the respondents is that as soon 4s a new subsection was added to section 3 of the Act the Provincial Government was obliged to make a corresponding provision to provide an allowance and in the event of failure of Government to make such provision the person so employed will be covered in the above definition of 'employee' and will be entitled to make application for recovery of C.L.A. In accordance with the Act.
16. On a careful consideration of the underlined portion of the definition of employee reproduced above I am unable to accept the contention advanced by the learned counsel for she respondents. The underlined words in the definition only indicate that a person for whom provision has been made or may be made by the Government for grant of allowance which is intended to provide relief due to rise in the cost of living will not be included in the definition of employee as given in the Act. There is nothing in the above definition to support the contention of the learned counsel for the respondents that upon every amendment in section 3 of the Act providing for payment of additional C.L.A. To employees for a particular period, the persons for whom the Government had made provisions for payment of allowance to meet rising cost of living on earlier occasion will be included in the above definition of employee on the failure of Government to make similar provision again in line with the above amendment. It is clear from the facts stated earlier that the first increase in the dearness allowance of respondents to meet the rising cost of living was sanctioned by the Provincial Government on 5-9-1973. It is not contended by the learned counsel for the respondents that in spite of the relief granted by the Provincial Government on 5-9- 1973 before coming into force of the original Ordinance and the Act they were still entitled to grant of further sum of Rs.35 by way of C.L.A. In terms of subsection (1) of section 3 of the Act which came into force on 31st of December, 1973. The expression "for whom provision has been made or may be made" used in the definition of the employee in subsection 2(b) clearly indicated the intention on the part of the Legislature to exclude from the purview of the definition of the 'employee' those persons for whom the Federal or Provincial Government had already made a provision for the allowance which was intended to give relief to them against the rising cost of living before coming into force or for whom the Government may make a similar provision in future. It is common ground between the parties that before enforcement of the Act the Government on 5-9-1973 granted increase in the dearness allowance which was effective from 1-8-1973 and after the enforcement of the Act on three different occasions had again granted increase in the dearness allowance to its employees and the last of such increment was allowed by the Provincial Government on 1-7-1979 when there was no corresponding subsection existing in section 3 of the Act. The last referred increment in the dearness allowance could not be shown to be admissible under any of the subsections of section 3 of the Act and if the contention of the learned counsel for the respondents is accepted that the respondents were entitled to the corresponding increase of the C.L.A. Every time a new subsection was added to section 3 then the increment given by the Provincial Government from 1-7-1979 was not covered under any of the subsections. I am, therefore, of the view that the respondents being persons for whom Provincial Government had not only made provision for payment of allowance which intended to meet the rising cost of living before coming into force of the Act but also made similar provision from time to time irrespective of amendments in section 3 of the Act, were clearly outside the purview of the 'employee' as defined in section 2(b) of the Act. On such consideration the petitions filed by the respondents before the Authority under section 6 of the Act were not maintainable and orders passed thereon were patently without jurisdiction. The petitions, are, therefore, liable to be accepted on the above ground."
17. On behalf of the private respondents Mr. Ali Amjad Advocate submitted that the provision for exclusion in the definition of "employee" in section 2 (b) of the Act is to avoid claims for double benefits. It was argued that amendments made from time to time in section 3 of the Act giving additional cost of living allowances amount to admissions by the State that the cost of living had been increasing over the years. According to the learned counsel, this was beneficial piece of legislation meant to give relief to various types of employees and that exclusion of the employees from the benefits of cost of living allowances was not relatable to the type of employment but to the provision of relief given for rise in the cost of living. It was pointed out by Mr. Ali Amjad that in respect of the cost of living allowances given by the two Ordinances of 1980 and 1981, no corresponding relief, even inadequate, was given by the Sind Government to the private respondents. According to the learned counsel, the private respondents were entitled to the cost of living allowance given by the two Ordinances of 1980 and 1981 and the present petitions were liable to be dismissed.
18. Mr. Nooruddin Sarki, learned counsel, who appeared in several of these constitutional petitions on behalf of the private respondents, relied upon the Division Bench judgment of this Court in the case of Jubilee Insurance Employees Union v. Sind Labour Appellate Tribunal PLJ 1983 Kar. 210 where, while dealing with a case under the Employees' Cost of Living (Relief) Act, 1973, it was observed that the Courts are inclined to place construction on the provisions of the Act which advance the object of Act namely to give more benefits to the employees for whose benefits the Act was enacted. With great respect I may observe that I have not been able to accept the view taken in the judgment of a learned Single Judge of this Court in the case of Agricultural Engineer v. Abdul Karim and others, referred hereinabove, on section 2(b) of the Act. When the Employees' Cost of Living (Relief) Act, 1973 was enacted, section 3 thereof provided for one rise in the cost of living allowance, i.e. Rs.35 per month and that also to employees who were drawing wages upto Rs.735 per month. By the grant of this cost of living allowance to the employees drawing wages upto a maximum of Rs.735 per month, the Legislature intended to compensate the employees for the rise in the cost of living that had already taken place. According to my reading of the definition of "employee" given in section 2(b) of the Act, such employees for whom a separate provision had been made or might be made by the Government for grant of an allowance intended to provide relief due to the rise in the cost of living reflected by the cost of living allowance of Rs.35 per month giving by section 3(1) of the Act, were excluded from the definition of "employee" and were not entitled to the cost of living allowance of Rs.35 per month. However, for the additional cost of living allowances given by Ordinance XXXII of 1980 and Ordinance XXV of 1981, no provision has been made by the Sind Government for grant of any allowance or allowances intended to provide relief to the private respondents due to the two rises in the cost of living reflected by the grant of additional cost of living allowances of Rs.40 per month each by the two Ordinances of 1980 and 1981. Nothing has also been placed on record to the effect that the Sind Government intended to make any provision in future for the grant of any allowance or allowances to the private respondents in respect of the aforesaid two rises in the cost of living.
19. Employees of the Government have been given dearness allowances in the past and even prior to the enactment of the Employees' Cost of Living (Relief) Act, 1973 and if the intention /object of the Employees' Cost of Living (Relief) Act, 1973 had been that one the Government had given even one dearness allowance to its employees, such employees would be excluded for all times from the definition of "employee" in section 2(b) of the Act, the said definition would have excluded Government employees from the meaning of the word "employee". But this was not done. In my view, the provision about exclusion in the definition of "employee" in the Act is to avoid double benefits in respect of the same rise in the cost of living, as contended by Mr. Ali Amjad, learned counsel for the private respondents. In respect of a particular cost of living allowance given under the provisions of the Employees' Cost of Living (Relief) Act, 1973, those persons would not be included in the definition of "employee" so as to get benefit of that particular cost of living allowance in case the Government has made or may make separate provision for grant of an allowance intended to provide relief due to that particular rise in the cost of living. Such employees may, however, be included in the definition of "employee" so as to get benefit of another cost of living allowance granted under the provisions of the Employees' Cost of Living (Relief) Act, 1973, where the Government does not make any provision for grant of an allowance toy such employees intended to provide relief due to the rise in the cost' of living reflected by the grant of such other cost of living allowance.
20. As admittedly no provision has been made by the Sind Government for grant of allowances intended to provide relief to the private respondents due to the two rises in the cost of living reflected by the two additional cost of living allowances given under Ordinance XXXII of 1980 and Ordinance XXV of 1981, in respect of such two additional cost of living allowances, private respondents are covered by the definition of "employee" given in section 2(b) of the Employees'
21. Cost of Living (Relief) Act, 1973. These petitions are accordingly liable to be dismissed.
6. Constitutional Petitions Nos. S-62, 86, 91, 108, 109, 110, 112, 142, 143, 144, 145, 146 and 147 of 1983 and Constitution Petitions Nos. l, 2, 3, 4 and 19 of 1984 are dismissed but with no order as to costs.