DECISION ' This appeal is directed against the order of learned Presiding Officer, Sind Labour Court No,IV at Karachi, dated 9-1-1988.
2. The facts of the case are that the respondent was working with the appellant. He was first appointed as Stenographer on 16-9-1981. On 1-5-1983 he was promoted as Secretary and was also asked to work with the Executive Director at two places viz. At the Site Office in the morning and at the Head Office in the evening. He was granted special inconvenience allownace of Rs,420 p.m.
And special increment of Rs,220 p.m. This special increment of Rs,220 was discontinued from 1-1- 1986 on the ground that his work was not found satisfactory against which the respondent made several representations. On 23-6-1987 the respondent claimed Overtime for working extra hours after office time with the Executive Director. The request of the respondent for overtime as well as for special increment was disallowed by the appellant and consequently after service of grievance notice the respondent filed grievance application with the learned Labour Court claiming therein overtime of Rs,1,05,149 and special Increment for working two places as per orders.
3. The appellant resisted the application on the ground that the respondent did not work overtime.
Furthermore that for working at two places he had already been given inconvenience allowance of Rs,420 and, therefore, he was not entitled to special increment of Rs,220 p.m.
4. The learned Labour Court came to the conclusion that the appellant was entitled to overtime for two hours per day, excluding holidays, at single rate of the wages. The learned Court also came to the conclusion that the respondent was entitled to special increment of Rs,220 p.m. Or other allowances admissible for such inconvenience whichever condition was favourable to the respondent.
5. I have heard Mr.M.Rafat Osmani, learned counsel for the appellants and Mr.Siddique Mirza, learned counsel for the respondent and also gone through the R & P of the case before the Trial Court.
6. Mr.M.Rafat Osmani raised a preliminary objection that the learned Labour Court had no jurisdiction to grant the overtime or the special increment. In support he has relied upon 1984 PLC 1335 National Bank of Pakistan v. Qazi Khan Muhammad wherein a Division Bench of the Sind High Court has held that the Labour Court or Labour Appellate Tribunal cannot grant something which is not guaranteed or secured under any law, award or settlement for the time being in force in terms of subsection (1) of section 25-A of 1.R.O.' Admittedly the overtime is payable under sections 8 and 9 of the West Pakistan Shops and Establishment Ordinance, 1969 read with section 47 of the Factories Act, 1934. It is further submitted by Mr.Siddique Mirza that on grant of Rs,220 p.m. As special increment by the appellant to the respondent it became a part of his wages payment of which is guaranteed under Standing Order No,10 of the West Pakistan Industrial and Commercial Employment (Standing Orders) j Ordinance, 1968. Subsection (1) of Section 25-A provides that the 'worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the lime being in force to the notice 1 of his employer in writing' and then under subsection (4) he could take the matter f to the Labour Court if the employer does not redress his grievance. Thus the rights which were being claimed by respondent, if proved, were guaranteed by the aforesaid laws and as such the Labour Court did have jurisdiction, as held in the aforesaid DB decision of the Sind High Court.
7. There is no dispute that Rs,220 were granted as special increment to the respondent which were stopped by the appellant from 1-1-1986. This stoppage of I the increment would amount to reduction in pay which is a sort of punishment which cannot be inflicted upon the respondent save in accordance with the provisions of law in this respect which have admittedly not been complied with. When confronted with this position, Mr.M.Rafat Osmani conceded that the appellant was liable to pay Rs,220 with effect from the date when it was stopped i,e, 1-1-1986.
8. With regard to the other claim of the respondent in respect of the overtime, admittedly the respondent used to work at two places with the Executive Director Mr. M.G. Siddiqui, who has been examined by the appellant before the learned Labour Court. In the cross-examination before the Labour Court Mr. M.G. Siddiqui has admitted that he used to sit late in the office and that the respondent used to wait for him. He has also admitted that he had given instructions in writing that the respondent should not leave but further added . Respondent did not follow instructions and used to leave after 5-00 o' clock. The statement of Mr.M.G.Siddiqui is self-contradictory. On the one hand he states that the respondent used to wait for him and on the other hand he states that he used to leave after 5.00 0' clock. He has also admitted that he used to sit late and sometime respondent used to go in his (witnesses) car. The respondent could not go with Mr.M.G.Siddiqui unless he waited for Mr.Siddiqui. From the statement of Mr.M.G.Siddiqui it is further clear that he used to work late but has not given any time as to for how long he used to work late. There, however, can be no doubt, in view of the admission of Mr.M.G.Siddqui, that the respondent used to work overtime. For the question as to how much overtime the respondent used to work the only evidence on record is that of the respondent himself. In his affidavit-in-evidence the respondent claims that he used to sit two hours per day after Office Hours in compliance of the written orders of the Executive Director dated 16-1-1984, whereby he was asked to sit in office till the Executive Director left the Office. There is no other evidence that the respondent used to work for lesser overtime. In view of the above facts the conclusion of the learned Labour Court that the appellant used to work overtime for two hours per day, excluding holidays, does not call for any interference.
8. However, the learned Labour Court has awarded the overtime to the respondent at single ordinary rates. Under section 9 of the Shops and Establishments Ordinance, 1%9. 'When any employee is required to work overtime in any establishment as provided in the proviso to section 8, the wages payable to such employee in respect of such overtime work shall be calculated at double the ordinary rate of wages payable to him. Under section 47 of the Factories Act, 1934 'if a worker in a non-seasonable factory works for more than nine hours in any day or for more than forty eight hours in any week he shall be entitled in respect of overtime work to pay at the rate of twice his ordinary rate of pay'. Admittedly the ordinary 'office hours' of the appellant establishment are from 9-00 a.m. To 5-00 p.m. For six days a week, which will make 48 ordinary working hours per week. The overtime that the respondent was working was in excess of the 48 hours a week and therefore, he was entitled to double the ordinary rate of pay. The learned Labour Court erroneously allowed overtime at single the ordinary rate of pay, which order is, therefore, modified.
9. The appeal is disposed of with this modification in the impugned order that the appellant is directed to pay the special increment of Rs,220 per month to the respondent from 1-1-1986 and also to pay the overtime at double the ordinary rate of wages from 16-1-1984 for two hours per day, excluding holidays. The parties are directed to submit the Statement of Accounts in terms of the above order before the Registrar of this Tribunal within 30 days of this decision. After verification the Registrar is to release the amount due to the respondent from the amount deposited by the appellants in this Tribunal. If there is still any amount payable by the appellants, the appellants are to deposit the same within 30 days of the settlement of accounts by the Registrar.