DECISION ' This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No, VI at Hyderabad, dated 8-2-1988, whereby the joint grievance petition, filed through the General Secretary of the Union on behalf of 125 workers, was dismissed.
2. I have heard Mr. SP. Lodhi, learned Representative for the appellants and Mr. Raees M. Mushtaq, learned Advocate for the respondents and have also gone through the record and proceedings of the case.
3. The brief facts of the case are that the appellant workers were admittedly employees of the respondents. An agreement was admittedly reached between the CBA Union and the respondents on 1-1-1987 effective from 1-10-1986 to 30-9-1988. Under clause 9 of this settlement the establishment agreed to pay certain production bonuses, the details of which are given in the agreement. It was further settled that the amount of each bonus would be equal to basic wage and the cost of living allowance of the worker. The respondents distributed the bonuses for the months of October, 1986 to January, 1987 in the month of January 1947, which was equal to the monthly wage of the worker as well as Rs,150 treating it as total amount of cost of living allowance.
The appellants claim that the total cost of living allowance on which bonus was to be given should be the total amount of cost of living allowance under Employees Cost of Living (Relief) Act, 1973.
After serving Grievance notice upon the respondent through General Secretary of the Union the appellant workers, which are 125 in number, filed joint application through the General Secretary.
The respondents contested the grievance petition on the ground that as law had permitted 'set off' and bonus was being paid on the basis of wages plus Rs,50 as CLA and further that grievance application was not maintainable as no guaranteed or vested rights of the appellants had been infringed.
4. A settlement arrived at between the CBA Union and the establishment under the provision of IRO 1969 is binding both on the workers and the establishment. Such settlement creates right either in favour of the workers or in favour of the management. The rights that are conferred upon workmen under such settlement are enforceable under section 25-A of IRO 1969 which provides for the enforcement of the rights guaranteed under the law or settlement for the time being in force. The only question that requires consideration is as to at what rate the production bonus was payable to the workmen. The language of clause 9 of the settlement is clear and unambiguous and does not require any interpretation by this Tribunal under section 50 of C IRO 1969. It clearly lays down the numbers of production bonus payable and each after how much production. It further provides that amount of each bonus would be equal to the basic pay and the cost of living allowance. In the previous agreement of 1985 admittedly production bonus was payable equal to basic salary and Rs,150 as cost of living allowance. Unlike the previous agreement the amount of cost of living is not determined or fixed in clause 9 of the settlement of 1987. The cost of living allowance is also mentioned in clause 10(b) of this settlement which provides for establishment of 'Workers' Welfare Fund'. It further provides every worker would pay towards 'Welfare Fund' five per cent of his basic pay plus full CIA., which is in bracket shown to be (190+18%). No where in the settlement it is shown that amount of cost of living allowance payable as bonus would be the amount admissible after the `set off' allowed under the law. Page. 15 of this agreement contains `Iqrar Nama'. Clause No, 2 of this `Iqrar Nama' shows that during the enforcement of this agreement if the Provincial Government' or the 'Federal Government' gave any 'financial or other concession' to the workmen either through law or through order, this concession would be applicable from the date of such Notification and that increase made by the Government either prior or after the agreement, would not affect this settlement.
5. Brig. (Retd.) B.A.K. Khattak, Deputy General Manager of the respondents, has stated in his affidavit-in-evidence that 'in the previous settlement they had agreed to pay bonus to the CBA Union at the rate, of Basic Pay + Rs,150 as COLA though at that time permissible COLA was Rs,190. He had admitted in the cross-examination that Settlement of 1987 was concluded in improvement of previous settlement in 1985. Number of production bonuses and its amount is not fixed under Standing Orders Ordinance and is left to the agreement between the parties. In agreement of 1985 the parties had agreed to fix the amount of cost of living allowance for the purpose of bonus at Rs,150 though admittedly at that time under the Employees Cost of Living (Relief) Act, 1973 Rs,190 was amount of full cost of living allowance. This agreement was perfectly legal. This limitation of Rs, 150 appears to have been done away with in the agreement of 1987 probably as an improvement over the previous agreement. Brig. (Retd.) Khattak has further admitted in the cross-examination that in the 'Charter of Demands' made by the union on which settlement of 1987 was concluded the Union has demanded bonus on gross salary. In view of this demand and in view of the fact that the limitation with regard to the amount of CLA fixed in agreement of 1985 was done away with in agreement of 1987, the only possible conclusion, that could be drawn is that bonus payable was to be equal to basic salary and the full amount of cost of living allowance admissible to the workers.
6. No evidence has been produced by the respondents to show that they had set off any amount against the relief granted to the workers under the aforesaid Act of 1973. Their general statement that after set off the amount of CLA would be Rs,150 is not tenable.
7. Under subsection (1) of section 3 of the Employees' Cost of Living (Relief) Act, 1973 Rs,35 per month were given as cost of living allowance. Under subsection (2) enacted in 1974, a further amount of Rs,50 per month was allowed to the workmen. Under subsection (3), enacted in 1975, an additional amount of Rs, 25 was allowed. No 'set off was provided. Under subsection(4), enacted in 1980, an additional amount of Rs,40 was granted bringing the total relief to Rs,150. However the provision of 'set off' was made from this Rs,40 in certain cases which are enumerated in provisos
(a) and (b). Under subsection (5), which was enacted in 1981, further amount of Rs,40 was allowed as relief, bringing the total amount to Rs,190. However provision of `set off' against this amount of Rs,40 was also inserted if the case fell under proviso (a) or (b). Further relief was granted under subsection (6), which was enacted in 1985.
8. However it appears that before enactment of subsection (6), the settlement of 1985 was entered into between the parties and apparently no set off was claimed by the respondents under subsections (4) and (5) in view of the statement of Brig. Rctd. Khattak that at that time though the total amount of COLA was Rs, 190 still the workers agreed to accept the bonus at the rate of Rs,150 as amount of COLA. This reduction in the amount of COLA for the purpose of bonus does not appear to be result of 'set off' but appears to be by agreement.
9. Subsection (6) to section 3 of Employees' Cost of Living (Relief) Act, 1973 was added in the year 1985 under which increase of wages was allowed at the rate of 13.5 per cent of wages. Under subsection (7), which was added in 1986 an increase in wages was allowed at the rate of 18 per cent but amount payable as increase in wages under subsection (6) was to be set off. The result of the addition of subsections (6) and (7) would be that the increase in the salary had to be made at the rate of 18 per cent of wages of workers.
10. No evidence is led to show as to what amount has been set off by the respondents from the increase in wages of workers allowed under subsection 6 and subsection (7). Such set off would be reflected from the amount of COLA actually paid to the workmen every month. I have already pointed that upto the increase of Rs,190 in the COLA the respondents do not appear to have claimed any set off.
11. In view of all this discussion the appellant would be entitled to get each production bonus at an amount which is equal to their basic wages and the amount of COLA actually being paid to them alongwith their wages each month. Under no stretch of imagination this amount of COLA payable to the workmen as a part of production bonus can be restricted to Rs, 150.
12. The learned Labour Court has observed that in the grievance notice as well as in the grievance petition the appellants have not shown as to what is their actual grievance, and that the grievance notices were vague. I find that in the grievance notices the appellants have clearly stated that payment of bonus at the rate of basic pay plus Rs,150 was infringement of their right and calculation be made on the total cost of living allowance in terms of the settlement, dated 1-1-1987.
In the grievance petition itself the appellants have, in the prayer clause, clearly prayed that the respondents be ordered to pay production bonus on the basis of basic pay plus uptodate cost of living allowance therefore there appears to be no ambiguity in the grievance notices as well as grievance petition. The learned Labour Court has relied upon the `Minutes of the Meeting' produced by Brig. (Retd.) Khattak alongwith his affidavit-in evidence as Exh. R/3. Admittedly this Exh. R/3 was not produced alongwith 'Reply Statement' nor is it stated whether this Exh. R/3 bears the signatures of the signatories of the ageeement of 1987, nor were these 'Minutes of Meeting' confronted to the witnesses of the appellants. Therefore, these `Minutes' would not have much evidentiary value for the purpose of determining the amount of COLA payable to the workmen as the part of production bonus.
13. In view of the above discussions I allow the appeal, set aside the impugned order of the learned Labour Court and direct the payment of the bonus to the appellants equal to their basic pay and actual amount of cost of living allowance paid by the respondents each month with the salary of each worker. The respondents are liable to pay for period of the settlement amount of difference between the bonus actually paid by them to the appellants and the amount of bonus calculated at the rate of basic pay plus actual cost of living allowance paid to each workman every month. As this would involve lengthy calculation the order to be implemented within three months.