' This petition arises out of a proceedings under section 25-A of the Industrial Relations Ordinance, 1969 instituted by the petitioner union against respondent No, 1 claiming the benefit of subsection
(6) of section 3 of the Employees Cost of Living (Relief) Act, 1973 as introduced by the Employees Cost of Living Act (XVI), 1985 according to which every employee whose wages did not exceed Rs,1,500 was entitled to be paid by the employer an increase at the rate of 13.5 per cent of his wages. This petition was resisted by the respondent inter alia on the plea that it' was entitled under the proviso to the said section to set off the increase which has already granted in wages on account of cost of living by the respondent in terms of settlement dated 27-4-1985 Exh.
12.2. The Punjab Labour Court No, 7 by means of its order dated 12th September, 1988 accepted the petition. However, on an appeal filed by respondent No, 1 this decision was reversed and it was held by the Labour Appellate Tribunal on 1842-1988 that as the employees of respondent No, 1 had been allowed increase in wages on account of cost of living under a settlement, they were not entitled to any further increase in wages on account of cost of living. This judgment of the Tribunal has been assailed by the petitioner by filing this petition.
2. Mr. Muhammad Zaman Qureshi, Advocate for the petitioner contended that the Punjab Labour.
Appellate Tribunal has misread the settlement arrived at between the parties on 27th April, 1985 wherein no increase in wages was allowed on account of rise in cost of living but the benefit granted was a result of revision of pay scales so as to bring them at par with employees of the Rice Export Corporation which owns the respondent No, 1 company. Relying on Charter of demand dated 18th-July, 1984 (Annex. R.1) it was argued that apart from other demands, the Union had claimed increase on account of cost of living vide clause 3 thereof but at the time of settlement this demand was given up which clearly proved that no increase was made on account of cost of living. Reference in this connection was also made to clause 4 of the settlement (Annex. R.2).
3. Mr. Asad Ullah Siddiqui, Advocate, learned counsel for respondent No,1 on the other hand contended that the order of Labour Appellate Tribunal of Settlement between the parties calls for no interference. It was argued that no jurisdictional defect having been pointed out by the petitioner, the Constitutional jurisdiction of this Court was not attracted. On merits the learned counsel maintained that it was never disputed before the Punjab Labour Appellate Tribunal that the increase granted under the settlement was on account of cost o living but the stand of the petitioner there was that as it was not so specifically mentioned in the settlement, the proviso was not applicable. The learned counsel also pointed out that in law it is not necessary that it should be specifically mentioned that the increase was on account of cost of living but it can be shown from the circumstances that the increase was allowed on account of increase of cost of living. It was also argued that the settlement expressly stipulates no further demand having financial implication will be raised for the next two years.
4. As regards the interpretation of proviso of subsection (6) of section the cost of living, the Supreme Court of Pakistan in R.B. Industries Ltd. v. Employees' Welfare Union and another PLD 1983 SC 15 has pronounced that it is not necessary for the applicability of the proviso that there should be specific statement in the agreement that the increase has been allowed on account of cost of living. Mere non-mention in the agreement that the increase was on account of rise in cost of living was not conclusive. It thus becomes necessary to find out as to whether the previous increase in wages was on account of cost of living even though it has not been so specifically mentioned in the settlement. From the character of demand presented by the respondent it is evident that apart from others, two specific demands raised were that the wages should be brought at par with the employees of Rice Export Corporation of Pakistan, the company which owns respondent No, 1 concern and that the wages be increased on account of rise in cost of living. The first demand of the Union after negotiation was accepted and the wages were restructured in the manner indicated in the settlement. However the demand of increase on account of rise in cost of living though specifically raised was not pressed. It is thus manifest that the increase allowed to the workers were not on account of rise in cost of living but was a consequence of the demand that their wages be brought at par with those working in the similar establishment.
5. The contention of the learned counsel for the petitioner that whenever wages are raised it is generally on account of rise in cost of living cannot be accepted as general rule. In New Jubilee Insurance Employees Union Karachi v. Sindh Labour Appellate Tribunal 1990 PLC 823 it was observed that the rise in wages can be a result of or factor to the increase in the rise of cost of living, increase in the paying capacity of the employees, raise in the wage structure in the comparable industries. In the present case the rise allowed was on account of wages prevailing in the establishment which is the owner of the respondent concern itself. It is, therefore, not correct to contend that the rise was on account of increase in cost of living.
' Another fact which need be noticed is that benefit granted under the settlement was confined to permanent employees of the respondent as envisaged by Clause 6 of the agreement. The learned counsel for the respondent was unable to state as to whether similar benefit was allowed to the temporary employees also. According to the statement of Mushtaq Ahmad, P.W. 13-1/2 per cent increase was being paid by the respondent to certain categories of employees and not to other.
This statement of P.W. 1 stands unrebutted on the record. In the case of New Jubilee Insurance Company Ltd. v. District Judge, Karachi and others 1981 PLC 566 while relying upon Security Papers Employees Union v. Sindh Labour Court and another PLD 1976 Kar. 288 it was held that whether the increase was granted only to permanent employees, the intention of the employer was not to grant relief due to rise in cost of living because if that would have been the intention then all the employees irrespective of the fact whether they were permanent or temporary would have been allowed increase in the salary.
' It was next argued that by virtue of clause 22 of the .Settlement the petitioners have undertaken not to raise any financial demand during the period of the agreement and therefore, have waived their right to raise any further claim. This argument loses sight of the fact that subsection 6 was added to section 3 by the Employees Cost of Living (Relief) (Amendment) Act (XIV of 1985) in the Employees Cost of Living (Relief) Act, 1973 at a date subsequent to the settlement. There could be thus no waiver of a right which did not exist at the time of the settlement. Reference in this connection may be made to New Jubilee Insurance Employees Union Karachi v. Sindh Labour Appellate Tribunal, Karachi and another 1990 PLC 823.
' Mr. Asad Ullah Siddiqui, learned counsel for the respondent next submitted that the petitioners had no locus standi to file any petition under section 25-A of the Industrial Relations Ordinance, 1969 as the grievance, if any, related to the individual rights of the workers not to the union or the Collective Bargaining Agent. This objection does not appear to have been raised before the Punjab Appellate Tribunal and therefore, it is too late in the day for the petitioner to raise it now.
' In view of what has been stated above this petition is accepted, the order of the Punjab Labour Appellate Tribunal is declared to be without lawful authority and of no legal effect with the result that the order of Punjab Labour' Court shall stand restored. No order as to cost.