' IMAM ALI G. KAZI, J.---The petitioner Kifayat Ali' Khan, is a permanent workman employed by Messrs Pakistan Steel Mills Corporation, Karachi, the respondent No, 2 herein. Messrs Pakistan Steel Mills Corporation is an autonomous Corporation working under the control of the Government of Pakistan.
2. The Government of Pakistan, through its Finance Department, issued an Office Memorandum No, F.2(3)-R.5/82 on 17-6-1982 granting dearness allowance to employees of corporations and autonomous/semi-autonomous bodies including banks and financial institutions. This Office Memorandum was issued and dearness allowance sanctioned by the pleasure of the President and Chief Martial Law Administrator, Pakistan. A dearness allowance of 45 per cent. Of the basic pay of the employees of the Public sector corporations etc. Drawing pay in Pay Scales equivalent to NPS-20 and below was allowed by the said memorandum.
3. Paragraph 3 of the said Office Memorandum provided that in case of employees governed by the provisions of Industrial Relations Ordinance, 1969, the dearness allowance sanctioned under it shall, be allowed subject to the condition that a period of one year has elapsed either from the date of effectiveness of agreement or settlement under the said Ordinance reached with the Collective Bargaining Agent or wage award has been announced and implemented as the case may be.
4. A settlement was reached between the respondent No, 2 and CBA of its Labour Union on 7-7- 1982 which inter alia provided in its clause (76) that monetary benefit granted by the Government from time to time will be allowed to the employees of Pakistan Steel Mills Corporation in accordance with the directions and explanations issued by the Government. The settlement was to be effective from 1-1-1982.
5. The petitioner, on the basis of the Office Memorandum and clause (76) of the Settlement referred to hereinabove, claimed the advantage of the additional dearness allowance as permitted by the said Office Memorandum.
6. M/s. Pakistan Steel Mills Corporation, the respondent No, 2 herein, declined to permit the petitioner to draw such dearness allowance mainly on the basis of provision made in paragraph 3 of the said memorandum. This necessitated the filing of the complaint under section 25-A of the Industrial Relations Ordinance, 1969, by the petitioner before the IV Sindh Labour Court at Karachi.
7. The IV Sindh Labour Court, Karachi decided the application in favour of the petitioner and held that the petitioner was entitled to the dearness allowance on expiry of a period of one year from the date of effectiveness of the settlement in terms of the office memorandum.
8. Messrs Pakistan Steel Mills Corporation took an appeal against the order mentioned in the preceding paragraph before the Sindh Labour Appellate Tribunal at Karachi. The Sindh Labour Appellate Tribunal, by its decision dated 21-7-1987, accepted the appeal and held that the petitioner Kifayat Ali Khan was not entitled to receive dearness allowance as claimed by him and that his application under section 25-A of the I.R.O., 1969 was not maintainable.
9. It is against the last decision mentioned hereinabove that the petitioner has filed this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
10. The case of the petitioner before the two Courts below in short was that he was entitled to receive the additional dearness allowance in terms of the Presidential Order contained in the office memorandum and his such entitlement was also guaranteed, secured and protected under clause (76) of the settlement reached on 7-7-1982. The settlement reached between the parties was not hit by the exception provided by paragraph 3 of the Office memorandum as it refers to such settlements that were already concluded and implemented. The office memorandum permitted the additional dearness allowance w,e,f, 1-7-1982 when settlement dated 7-7-1982 was not in force. It, therefore, applied to the previous settlement and a period of one year had already elapsed. The petitioner was, therefore, entitled to receive the dearness allowance w,e,f, 1-7-1982.
Alternatively, it was contended that in case the settlement reached after the issuance of the Office Memorandum on 7-7-1982 was taken into consideration he will be entitled to draw the dearness allowance w,e,f, 1-1-1983 when the period of one year had elapsed from the date of effectiveness of the said settlement.
11. M/s. Pakistan Steel Mills Corporation, the respondent No, 2, contended that the petition filed under section 25-A of I.R.O., 1969 by the petitioner was not only barred by time but was also not maintainable under that provision of law. It was further contended that the petitioner and other workmen were already drawing their emoluments according to their entitlements and were not entitled to the additional dearness allowance as claimed by the petitioner as it stood adjusted.
12. The Sindh Labour Appellate Tribunal upheld the contentions advanced by the respondent No, 2 and allowed the appeal.
13. Mr. Mirza Muhammad Kazim, Advocate appearing for the petitioner, contended before us that settlement between the respondent No, 2 and the CBA of its labour union was reached on 7-7-1982 and was to be effective from 1-1-1982. The Office Memorandum under consideration was issued on 17-6-1982 whereby the petitioner was entitled to draw additional dearness allowance w,e,f, 1-7- 1982. The respondent No, 2 were already aware of the effectiveness of the office memorandum before the settlement was reached by them with the workers. By clause (76) of that settlement the workers were entitled to monetary benefits as may be granted by the Government of Pakistan from time to time. According to him, reading clause (76) together with the direction contained in the office memorandum the petitioner was entitled to receive the allowance in question w,e,f, 1-7-1982.
In case paragraph 3. Of the said memorandum was applied to the case still the petitioner will be entitled to draw the allowance in question w,e,f, 1-1-1983 that is after a lapse of a period of one year from the date of effectiveness of the said settlement. He further contended that the memorandum under consideration issued under orders of President of Pakistan containing directions to a corporate body under the control of Government of Pakistan was in the nature of rule-making power and needed to be enforced. To support his such contention he referred to cases reported in PLD 1964 SC 21; PLD 1971 SC 846; PLD 19'73 SC 144; PLD 1977 Lah. 549 and PLD 1969 SC 407.
14. Mr. Khalid M. Ishaque, Advocate appearing for respondent No, 2, contended that the grant of dearness allowance through the memorandum referred to above was not issued under any statutory power and therefore cannot bind the respondent No, 2 to follow directions contained therein. To support his such contention he referred to cases reported in PLD 1967 Dacca 607 and PLD 1965 Dacca 157. Alternatively, he contended that the office memorandum under consideration was subject to clarification by Ministry of Finance, Government of Pakistan. The Ministry had issued two clarifications on 30-8-1982 and 5-1-1983 (Annexures CA/1 and CA/2 to the petition). According to such clarifications, the dearness allowance admissible in terms of the office memorandum dated 7-6-1982 effective from 1-7-1982 was subject to necessary adjustments as and when any new agreement/settlement was negotiated by the CBA and respondent Mill. The workers employed by respondent No, 2, according to the learned counsel, were already drawing allowance according to their legal entitlement and respondent No, 2 will not be liable to pay them dearness allowance twice.
' He lastly contended that application filed by the petitioner under section 25-A of the I.R.O., 1969, was barred by Law of Limitation. The petitioner had filed his grievance application on 2-6-1984 when the period of validity of settlement reached on 7-7-1982 had already expired and a new settlement dated 23-4-1984 was operative. Clause (20) of the new settlement disentitles the petitioner to file the grievance petition as the agreement was made in final settlement of all pending and current demands raised by the CBA. It was further agreed thereby that no fresh demand having any financial implication directly or indirectly will be raised by the CBA during the currency of the new agreement.
' On the basis of the arguments mentioned hereinabove, Mr. Khalid M. Ishaque contended that the petition had no merit.
15. The controversy, in this case, mainly concerns the applicability of the Office Memorandum dated 17-6-1982 allowing additional dearness allowance to certain workers employed by public sector corportions, banks, etc. The Office Memorandum for the sake of convenience is reproduced below:-- "GOVERNMENT OF PAKISTAN FINANCE DIVISION (REGULATIONS WING)
No, F.2(3) R.5/82. Islamabad, the 17th June, 1982.
OFFICE MEMORANDUM ' Subject: GRANT OF DEARNESS ALLOWANCE TO EMPLOYEES OF CORPORATIONS AND AUTONOMOUS/SEMI- AUTONOMOUS BODIES INCLUDING BANKS AND FINANCIAL INSTITUTIONS.
' The undersigned is directed to refer to this Division O.M. No, F.5(5)-R.5/81, dated 27-6-1981 on the above-noted subject and to state that in lieu of the Dearness Allowance sanctioned thereunder, the President has been pleased to sanction, with effect from 1-7-1982 and until further orders, Dearness Allownace @ 45% of basic pay to employees of public sector corporations and autonomous bodies, including banks and financial institutions under the Federal Government, drawing pay in pay scales equivalent to NPS-20 and below. This Dearness Allowance will be subject to the condition that no employee would receive an additional amount of less than Rs,50 or more than Rs,200 over his entitlement on the basis of the existing Dearness Allownace, as shown in the illustrations given below. For any subsequent increase in pay on account of annual increment or promotion, the dearness allowance will be recalculated in the same manner.
' Illustration (i): Mr. 'A' is drawing on 30-6-1982, pay of Rs,825 and a Dearness Allowance of Rs,100 p.m. Under this dispensation, his D.A. Calculated,@ 45% of basic pay would come to Rs,371. Since he is already in receipt of D.A. Of Rs,100 p.m. (i,e, Rs,100 + Rs,200).
' Illustration (ii): Mr. 'B' is drawing on 30-6-1984 basic pay of Rs,1,150 p.m. And DA. Of Rs,115 p.m. At the rate of 45% his basic pay, the D.A. Would come to Rs,518. Since he is already in receipt of D.A. Of Rs,115 the D.A. Admissible under this dispensation would be Rs,315 (i,e, Rs,115 + Rs,200 p.m.). After getting the annual increment of, say Rs,50, his pay will be Rs,1,200 and accordingly his DA. Will be Rs,320 (Rs,120 + Rs,200).
2. In the case of future entrants, i,e, those who join service on or after 1-7-1982, the amount of dearness allowance will be determined from time to time in accordance with the principle laid down in para. 1 above.
3. In the case of those of the above employees who are governed by the provisions of the Industrial Relations Ordinance, 1969, the Dearness Allowance sanctioned under this O.M. Shall be subject to the condition that a period of at least one year has elapsed from the date of effectiveness of the agreement or settlement under the said Ordinance that had been reached with the Collective Bargaining Agent or a Wage Award has been announced and implemented, as the case may be.
4. The above Dearness Allowance:-
(i) will be classified as compensatory allowance and will not be subject to Income-tax;
(ii) will not be included in the term "emoluments" for the purpose of recovery of house rent;
(iii) will not be admissible to those posted abroad;
(iv) will not be admissible in the case of those employed during L.P.R.;
(v) will be admissible during leave including leave preparatory to retirement commencing from a date after 1-7-1982 but will not be admissible to those who are already on leave/LPR since before 1- 7-1982;
(vi) will not be admissible during extraordinary leave; and
(vii) will be admissible during period of suspension.
5. In calculating the monthly rate of the above fraction of a rupee which is less than fifty paisa will be ignored and that of fifty paisa and more will count as one rupee.
6. Ministries/Divisions are requested to issue, under intimation to this Division, necessary orders immediately in respect of employees of corporations and autonomous/semi-autonomous bodies etc. Under their administrative control.
(Sd.)
(MA. SHAMSI)
Deputy Secretary to the Government of Pakistan To ' All Ministries/Division, etc."
16. On examination of the Office Memorandum under consideration it will be noticed that additional dearness allowance was allowed in accordance with the formula mentioned therein in its opening paragraph. A minimum amount of Rs,50 upto a maximum amount of Rs,200 after adjusting the existing dearness allownce has been ,permitted by it to all the employees of respondent No,
2. In case of employees governed by the I.R.O., 1969, such additional allowance has been allowed subject to the condition mentioned in its paragraph 3. The Ministry of Finance through their two letters, dated August 30, 1982 and January 5, 1983, further clarified that such category of employees will also be entitled to receive the additional allowance under the same conditions even in the case of fresh agreements/settlements. The Memorandum in question is indeed of general application as it applies to both the categories of employees whether they are governed by provisions of I.R.O., 1969 or not. Paragraph 3 makes payment of such allowance conditional to such employees who are governed by the provisions of I.R.O., 1969. In case of employees of the latter category the payment of the additional dearness allowance allowed by the Office Memorandum is merely postponed to a date after a lapse of a period of one year calculated from the date of effectiveness of the settlement or the wage award under its paragraph 3. Paragraph 3 does not in any way disallow such an advantage to such employees completely. The Office Memorandum of 17-6-1982 is couched in simple language that does not permit more than one meaning to create any difficulties in implementing it. We are, therefore, inclined to hold that the employees of respondent No, 2 governed by the provisions of the I.R.O. Were entitled to receive such additional dearness allowance after a period of one year from the effective date of settlement.
17. Mr. Khalid M. Ishaq, Advocate appearing for respondents, pointed out that the petitioner had filed his grievance application under section 25-A of the I.R.O. On 2-6-1984 basing his claim on the basis of the Office Memorandum dated 17-6-1982 beyond a period of three months prescribed by that section. He further contended that the settlement dated 7-7-1982 had, by that time, already lapsed and a new settlement dated 23-4-1984 came into existence. The last settlement provided that no new demand having any financial implications directly or indirectly shall be raised during the validity of that agreement which was made in full and final settlement of all the pending and current demands. Under such circumstances, according to him, the grievance application itself was not maintainable.
18. We find that the grievance application filed by the petitioner under section 25-A of the I.R.O., 1969, was filed beyond a period of three months on the date when the cause of such grievance arose to him and was therefore barred by limitation. At the time when this grievance application was filed admittedly the settlement reached on 23-4-1984 was in existence. By the current settlement it was agreed that such settlement was in full and final settlement of all pending and current demands raised by the CBA and no new demand having any direct or indirect financial implications shall be raised during the validity of the said agreement. Both the parties were aware of the memorandum in question and such a condition could have been incorporated in the settlement after adjustment of the benefit of additional dearness allowance allowed by it. The petitioner was, therefore, estopped from making demand of such payment at that stage.
19. For the foregoing reasons, we hold that the grievance application filed by the petitioner under section 25-A of I.R.O. Itself was not maintainable. We I accordingly dismiss this petition with no order as to costs.