DECISION ' This is a Revision Application filed under section 38(3-a) of the Industrial Relations Ordinance, 1969, against the order of learned Presiding Officer, Sind Labour Court No, 1 at Karachi passed on 15- 3-1987 whereby the learned Presiding Officer allowed the appeal of the respondent filed against the order dated 1-10-1983, passed by the Authority under the Payment of Wages Act.
2. The facts of the case, briefly stated, are that the applicant was a workman working with the respondent and retired on 3-11-1979. At the time of his retirement he was admittedly drawing a salary of Rs,446 per month and also getting 55% of salary as allowance which according to the respondents it was Stationary Allowance while according to the respondents it was Stationary Allowance. Admittedly this allowance of 55% was not included in the salary of the applicant for the purpose of giving him gratuity and according to the applicant, therefore, he was paid Rs,21,317 less as gratuity. He filed such claim before the learned Authority under the Payment of Wages Act. The learned Authority held that the applicant was entitled to above sum of amount of unpaid difference of the gratuity and further ordered compensation at ten times of the amount of deducted wages which comes to. Rs,2,13,170. The respondent filed appeal against the said order whereupon the learned Presiding Officer, Labour Court set aside the order of the learned Authority holding that the applicant was not entitled to the gratuity on the said allowance as he was not appointed as `Trouble Shooter'
3. I have heard Mr. SA. Channa, Advocate for the applicant and Mr. Ch. Rasheed Ahmed, Advocate for the respondent.
4. The witness to the respondent had admitted in evidence before the learned Authority that the applicant was getting basic salary of Rs,446 per month and 55% thereof as Wastage Allowance. He also admitted there that this mileage allowance was not included in the gratuity as the applicant was not qualified Trouble Shooter. It also appears from the order of the learned Authority which fact is not disputed by the learned counsel appearing for the respondent that as a result of the Award by the Industrial Court in Disputes No, 73 of 1964 and No, 17 of 1965, the Vice-Chairman (Personnel)
Headquarter, Pakistan Railways, Lahore had issued letter No, 39-E/254 (policy), dated 13-6-1967, which entitled the Trouble Shooters to 55% Mileage Allowance of their basic salaries. Further by another letter No, 47-E/28-III-9F.V., dated 19-3-1980, those Trouble Shooters who had not passed the Course from Diesel School, Karachi Cantonment, Karachi, were disentitled to the said allowance. The learned Authority has rightly remarked that this order was not applicable to the applicant who had retired before passing of the order in 1980. The fact remains that at the time of retirement the applicant was getting 55% of pay as allowance and that he was also working as Trouble Shooter though there was no such order in writing appointing him as Trouble Shooter. The mere fact that the respondent did not issue the order though they were admittedly taking the work from him of a Trouble Shooter and were paying him the allowance for the same would not entitle the respondent to take advantage of this technical lapse on their part.
5. Mr. Ch. Rasheed Ahmed had relied upon certain case-law to the effect that the Authority Under Payment of Wages Act was not authorized to fix or determine the wages but I need not discuss the said law as the question before the learned Authority was not fixation of wages but of recovery of unpaid gratuity. The fact that 55% was paid as allowance is not disputed therefore the Authority c could not be said to have fixed the wages of applicant by ordering the payment of the difference of the unpaid gratuity.
6. No rules have been produced by the respondents before this Tribunal to show that such an allowance cannot be calculated for the purpose of gratuity but only ground raised by them is that because the applicant was not appointed as Trouble Shooter therefore this allowance could not be calculated towards his gratuity. Furthermore, the applicant had also produced before the learned Labour Court decree passed by Civil Court at Karachi in Suit No, 58 of 1972 to the effect that the applicant along with 18 other workers were entitled to legal character and status of running staff wiremen/Trouble Shooter and all the intervening benefits thereof by virtue of duty performed by them.
7. In view of the above discussion I am unable to agree with the learned Presiding Officer of Labour Court that because the applicant had admitted that he had not undergone training therefore he was not entitled to allowance and gratuity thereupon. The applicant had stated in evidence that training had been stopped by the Headquarter prior to his posting as Trouble Shooter. This averment also finds support from the fact that in 1980 fresh orders were issued by the Railway Administration to the effect that allowance should not be paid to those Trouble Shooters who had not undergone training implying thereby that prior to 1980 the allowance was being paid to Trouble Shooters even without completing the training. In the instant case admittedly the applicant was receiving this allowance therefore the order of the learned Authority awarding payment of unpaid amount of Rs,21,317 on the basis of calculation of this allowance is upheld and the order of the learned Labour Court setting aside the said order of the Authority is set aside.
8. The learned Authority has also awarded compensation as stated above under subsection (3) of section 15 of the Payment of Wages Act. Proviso to subsection (3) provides that no direction for the payment of compensation shall be made in the case of delayed wages if the authority is satisfied that the delay was due to (a) bona fide error or bona fide dispute as to the amount payable to the employed person.
9. As pointed out above there were two letters issued by the competent authority, one with regard to payment of mileage allowance to Trouble Shooters as result of the award given by the Industrial Court and second letter was for stoppage of allowance to those Trouble Shooters who had not undergone the training. Obviously the claim of the applicant for the payment of gratuity was settled after the issuance of the second letter and as such there appears to be bona fide dispute between the parties as to whether applicant was entitled to gratuity on the mileage allowance as he had admittedly not undergone any training.
10. Under the circumstances, in my opinion, the award of ten times compensation was not justified.
Therefore, the order of the learned Labour Court F setting aside the award of compensation is maintained.
11. The Revision Application is, accordingly, partially allowed to the extent that the order of the learned Labour Court setting aside the award by the Authority of an amount of Rs,21,317 as delayed gratuity is set aside and the order of the Authority is maintained with respect to that amount only.