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Application No. 242 of 1981, decided on 27th December, 1981.

‑‑ S. 15 read with Employees' Cost of Living (Relief) Act, 1973 (1 of 1974), S. 6(b)‑Authority under Payment of Wages Act, 1936 Jurisdiction of‑Application for payment of cost of living allowance admissible under Employees' Cost of Living (Relief) Act, 1973 as amended by Employees' Cost of Living (Relief) (Amendment) Ordi nance (XXXII of 1980) and Employees' Cost of Living (Relief) (Amendment) Ordinance (XXV of 1981) by employee of Mechnical Engineer, Government of Sind‑Within jurisdiction of Authority.

‑‑ S. 2(b) read with Employees Cost of Living (Relief) (Amend ment) Ordinance (XXXII of 1980) and Employees' Cost of Living (Relief) (Amendment Ordinance (XXV of 1981)‑Work‑charge employees of Mechanical Engineer, Government of Sind‑Not excluded from definition of employee‑Entitled to cost of living allowance of Rs. 40 p. m. w. e. f. lst July, 1980 and additional cost of living allowance of Rs. 40 p. m. from 1st July, 1981‑Non‑issu ance of instructions from Finance Department, held, no excuse for withholding payment‑Claim accepted by Authority‑Payment of Wages Act (IV of 1936), Ss. 15 & 16.

M. Bashir Awan for Applicants.

M. Ibrahim Soomro, A. G. P. for Opponent.

By this order 1 propose to dispose of the Joint application filed by the applicants named in the claim‑sheet annexed with this order, under sections 15 and 16 of the Payment of Wages Act, 1936.

Briefly, the facts as disclosed in the application are that all the applicants are permanent workmen/employees borne on work‑charged establishment working under the Opponent above‑named. They were paid the Cost of Living Allowance amounting to Rs. 35, Rs. 50 and Rs. 25 as sanctioned from time to time under the Employees' Cost of Living (Relief) Act of 1973. This cost of Living allowance was later on merged into their wages w. e. f. 1st May, 1977 on refixation of their pay in the Revised National Scales of pay of 1977.

The Opponent has now failed to make the payment to the applicants; of the Cost of Living Allowance amounting to Rs. 40 p.m. w. e. f. 1st July, 1980 and the additional Cost of Living Allowance of Rs. 40 p. m. w. e. f. 1st July, 1981 as sanctioned by Government by bringing amendments in the Employees' Cost of Living (Relief) Act, 1973, through the amending Ordinance No. XXXII of 1980 and Ordinance No. XXV of 1981 res pectively, for which the applicants had made repeated requests for the payment of these allowances.

In response to a Court Notice, the opponent filed the reply statement and denied the liability of the claim. The following issues, with the con sent of both the sides, were settled:

(1) Whether the Court has the jurisdiction to try the matter

(2) Whether the applicants are entitled to cost of living allowance, as claimed by them, in terms of Employees Cost of Living (Relief) Act

(3) What should the order be

Both the parties preferred not to adduce any evidence, as the issues are of legal character, and requested to dispose of the application by determining these issues on the basis of their arguments.

Both the learned counsel advanced their oral arguments. I have heard the arguments of both the learned counsel and perused the plead ings/documents etc. filed. My findings and reasons therefore are as under:‑

Issue No. 1.‑Mr. M. Bashir Awan, the learned Advocate for the applicants, referred me to the provisions of section 6(b) of the Employees Cost of Living (Relief) Act 1973, and contended that this Authority under the Payment of Wages Act, has specifically been provided with the powers to determine the claim of the nature. It would be more beneficial to reproduce section 6 (as whole) as under:‑

6. Claim for recovery, or delay in payment, of cost of living allowance.‑‑Where contrary to the provisions of this Act, the cost of living allowance of any employee has been with held or delayed such worker himself or through any other person authorised by him in this behalf may apply‑

(a) in the case of an establishment to which the West Pakistan Shops and Establishment Ordinance, 1969 (W. P. Ordinance No. VIII of 1969) for the time being applies, to the Autho rity appointed under subsection (t) of section 12 thereof having jurisdiction and the provisions of the said section and sections 11, 13, 21, 23, 30 and 32 of that Ordinance shall, so far as may be and with the necessary modifications, apply for the purpose of recovery of the cost of living allowance; and

(h) in any other case, to the authority appointed under subsec tion (1) of section 15 of the Payment of Wages Act, 1936 having jurisdiction and the provisions of the said section and sections 6, 16, 17, 18, 19, 22, 23 and 26 of the said Act, shall so far as may be and with the necessary modifications, apply for the purposes of recovery of the cost of living allowance. The other side could, not controvert this legal position.

On perusal of the special provisions of law as shown above, I hold that this Court/Authority has the jurisdiction to try the application.

Issue No. 2.‑With regard to the entitlement of the claim, Mr. Awan the learned counsel for the applicants, referred me to section 1(31 of the Employees Cost of Living (Relief) Act, 1973, and made the submissions that according to this section, the provisions of the Act are applicable to whole of Pakistan. He also referred me to section 2(b) of the same Act, wherein the definition of "Employee" has been given. He contended that the Legislature by using the words "any person" in the definition indicated that no distinction is to be made between different categories of employees, whether permanent, temporary, casual, badli, probationer, apprentice, whether time‑rated or piece‑rated. The intention of the Government by promulgating the Ordinance is to provide a sort of relief to the employees against the rapid increase in the cost of living.

He further contended that it is strange enough that in whole of Pakistan ail the employees have been benefited by the Act whereas the poor applicants have been denied this relief as if they are not affected by the high prices prevailing in this country.

Mr. Awan, further pointed out that the following documents brought on record by the applicants show that these poor persons/employees have been requesting the employer and even the Government, but to no avail:‑

(1) A/I. Photostat of Telegram dated 29th July, 1981 sent to President. of 'Pakistan.

(2) A/2. Photostat of Telegram dated 29th July, 1981' sent to the Governor of Sind.

(3) A/3. Photostat of letter dated 29th July, 1981 sent to the Secratary Government of Sind, Irrigation and Power Department with copies endorsed to others including the opponent.

(4) A/4. Photostat of letter dated 5th August, 1981 sent to the Superintending Engineer, Mechanical Circle in Sind, Hyderabad, with copies endorsed to others including the opponent.

(5) A/5. Photostat of amending Ordinance No. XXV of 1981 pro mulgated by the President of Pakistan.

It was next contended by Mr. Awan, the learned Advocate for the applicants that according to section 5 of the aforesaid Act, the Employer/ Opponent is legally bound obliged to make the payment ‑of the relief, within 30 days of the commencement/promulgation of the Ordinance but it is matter of great surprise and regret that the Government itself has not cared to abide by the provisions of the statute which is introduced by it. The learned counsel further submitted that the only condition laid down under section 2(b) in the Act, for excluding the admissibility/entitlement of the relief allowance to the employees is, that the Government should make such provision for grant of similar relief to the applicants/employees, but the position on record is that despite repeated requests the Government did not care to provide any alternative relief allowance of similar kind. Since the Government has not made any provision for grant of similar allowance the applicants would be included in the definition of "employees" as defined in section 2(b) of the Employees Cost of Living (Relief) Act, 1973, (as amended) and they would be entitled for the grant of cost of living allowance, as provided under the said Act (as amended from time to time), and the opponent department would not be excluded from making payment of the said allowance

In view of his submission, he prayed that cost of living allowance amounting to Rs.40 w e. f, Ist July, 1980 and the additional cost of living allowance of Rs. 40 w. e. f. 1st July, 1981 in terms of the Ordinance No. XXXII of 1980 and Ordinance No. XXV of 1981, respectively, as claimed by the applicants be allowed. by this Court, with costs of the proceedings.

On the other hand, Mr. Ibrahim Soomro, A. G. P. the learned counsel for the opponent argued that the opponent is not the employer of the applicants, but when his attention was drawn to the fact that the Divisional Engineer, is the "Pay Master" in relation to the disbursement of the wages to the applicants, he conceded.

The next plea raised by the learned A. G. P. was that the applicants are not entitled for the relief because they are all borne on work‑charged establishment.

To this Mr. Awan, the learned counsel for the applicants pointed out that under section 3 of the Act, even the time‑work or piece‑work employees have been made entitled for payment of this allowance and no distinction whatsoever in the categories of the employees is envisaged by the Legislature.

The learned counsel for the opponent, at the stage of arguments, filed the copies of the following documents:

(1) Finance Department letter No. FD (SR‑1V)/1(l2)177 dated 13^th September, 1980 as R/1.

(2) Copy of Finance Department letter No. FD/TR/1(21) 80 dated 9th October, 1980 as R/2.

(3) Copy of Finance Department letter No. FD/(SR‑III)/5/7‑81 dated 11th July, 1981,

and submitted that in accordance with the instructions contained in these letters and circulars, the applicants are not entitled for the relief.

In response Mr. Awan, learned counsel for the applicants contended that all these documents are wholly irrelevant because the instructions contained in these letters are applicable to Civil Servants and pertain to payment of Rs. 30. to them, whereas the applicants in this matter are neither Civil Servants nor they claim the Dearness Allowance of Rs. 30 but these applicants come within the definition of "Employees" and governed by the provisions of Employees' Cost of Living (Relief) Act, 1973, under which they have claimed Rs. 40 from 1st July, 1980 and Rs. 40 p.m. from 1st July, 1981.

Lastly Mr. Soomro, the learned counsel for the opponent submitted that since the Finance Department has not issued any orders in respect of these applicants, hence they are not entitled for the Relief, as claimed for.

But Mr. Awan's contention was that there is no provision or condi tion in the Act that until Finance Department authenticate the Ordinance of the President of Pakistan, it should not be implemented. He submitted that an Ordinance promulgated by the President, has the force of. Law and no exception or condition can' be attached to it until the very. Ordinance prescribes it.

The reason put forth by the Opponent for non‑implementation of the Ordinance seems to be a bit strange and hardly to be believed in as much as that President's Ordinance requires any authentication/endorse ment from a Department of the Provincial Government.

Taking all the aspects into consideration as discussed hereinabove hold that the applicants are entitled for the Cost of Living (Relief) allowance amounting to Rs. 40 p. m. w. e. f. 1st July, 1980 and the Additional Cost of Living (Relief) allowance amounting to Rs. 40 p. m. w. e. f. 1st July, 1981 in terms of the Ordinance No. XXXII of 1980 and Ordinance No. XXV of 1981, respectively.

Issue No. 3.‑The opponent has not disputed the amount as claimed by each applicant in claim‑sheet annexed to main application as Annexure "A". I, therefore, allow the total claim of all the 237 applicants to the tune of Rs. 1,49,269 as detailed in the annexure (claim‑sheet) to this Order and in addition I allow Rs. 47 as costs.

In all I allow Rs. 1,49,316 (Rupees one lac, forty‑nine thousand, three hundred and sixteen only):

The opponent is directed to deposit Rs. 1,49,316 with this Authority within 30 days for payment to the applicants. .

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