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Appeal No. KAR‑341 of 1982, decided on 14th November, 1982.

(a) Industrial Relations Ordinance (XXIII of 1969)‑--

----Ss. 32 (1‑A) & 34 ‑ Raising of demand and adjudication of industrial dispute‑Enforcement of pre‑determined right conferred by law ‑ Distinguished ‑ Union making application under S. 34 for enforcement of certain sighs i.e. overtime payment in accordance with S. 47 of Factories Act, 1934 and payment of bonus to workers under S. O. 10‑C of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑Objection that in view of operative settlement demands involving financial implications could not be raised‑Rejected‑Held : Settlement may legitimately be treated as bar against raising of fresh demands but it cannot act as a bar against enforcement of predetermined rights through application under S. 34.

(b) Factories Act (XXV of 1934)‑---

--‑‑S. 47‑Overtime‑Payment for‑‑Union demanding that all over time work beyond 42 hours per week be paid at double the total wages including allowances ‑ Workers, held. be paid at double the ordinary rate of pay for overtime 'work beyond 48 hours a week or 9 hours a day while for overtime work below 48 hours a week or hours a day workers be paid at rates prevalent or which may be fixed through agreement.

Karachi Pipe Mills Ltd v. Employees' Union 1981 P L C 19 ref.

(c)

West Pakistan

--‑S. O. 10‑C read with Payment of Wages Act (IV of 1936), S. 2‑Wages‑Defined in Payment of Wages Act, 1936‑Not applicable for purposes calculating bonus and gratuity under S. O. 10‑C of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑Union claiming that gratuity and bonus payable under S. O. 10‑C be calculated on total wages including allowances as defined in Payment of Wages Act, 1936‑ Wages, held, would mean pay which was intended to remain permanent-Various allowances, except cost of living allowance allowed by law, held, cannot be considered to have degree of permanence making part of wages ‑ Allowances. other than statutory cost of living allowance, held, cannot be considered to be part of wages for purposes of computation of gratuity and bonus under S. O. 10‑C.

Karachi Pip, Krill; T.1,7'. W. Employees' Union 1981 P L C 19 distinguished.

Zain Packaging Industries, Karachi v. Abdul Rasheed 1981 P L C 800 ref.

Pakistan Cigarette Labour Union v. Pakistan Tobacco Co. Ltd.

PLD1981SC495rel.

Ashraf Hussian Riavi for Appellant‑.

Abrar Hassain for Respondent.

Date of hearing : 11th November, 1982.

ORDER

This appeal is directed against the order passed by the learned Vth Labour Court on 8‑9‑1982, dismissing the application under section 34, I.R.O., made by the appellant. Union for the enforcement of certain rights of the workmen of the respondent Company. The rights sought to be enforced through the said application are, firstly, payment of all over time work at double the ordinary rate of pay, in accordance with the provisions of section 47 of the Factories Act, 1934, secondly, payment of gratuity to the workers on their total wages, including all allowances, and thirdly, payment of bonus under Standing Order 10‑C to the workmen on the basis of their total wages, including. allowances admissible to workmen. The application recites 13. allowances, including D. A., House rent, productivity allowance, attendance allowance and food subsidy allowance, which are admissible to the workmen. The learned Labour Court has dismissed the appellant Union's application. solely on the ground that according to the settlement which was arrived at between the appellant‑Union and the Management on 7‑11‑1979, the Union was not to raise any demand, covered by the Charter of Demands, dated 3‑9‑1979, and/or any demands whatsoever invol ving financial implications upon the company during the period covered by this Settlement. The learned Labour Court has taken the view that during the period of operation of the Settlement, the appellant union is precluded from making the application preferred by it. In coming to this decision it has sought to rely on the judgment of this Tribunal in the case of Boots Company (Pak.) Ltd. v_ Boots Employees' Union (Appeal No. KAR 462/81), decided on 13‑12‑1981. That case, however, involved a demand (made by the workers' Union for the re‑instatement of 3 Chowkidars who had been dismissed from service, and since the Management did not accede to the demand of the employees' Union, the Union preferred an application under section 32 (1‑A), I.R.O: That case, therefore, related to the raising of a demand and the adjudication of an industrial dispute and not the enforcement of a right which had already been conferred by a law, an award or a settlement. There is a clear distinc tion between the raising of a demand, which only matures into a right, when it is either acceded to by the Management or has been granted through an award, and the enforcement under section 34, I.R.O., of a pre‑determined right, which has been conferred under law, an award or a settlement. The settlement arrived at between the parties in the instant case one 7‑11‑1979 may legitimately be treated as a bar against the raising o. fresh demands by the workers' Union having financial implication A upon the respondent Company, but it cannot act as a bar against the, enforcement of a pre‑determined right through an application under section 34, I.R.O. Mr. Abrar Hussain. the learned counsel for the respondent‑Company frankly conceded this legal position.

2. In view of the above legal position, the matter could have been remanded to the learned Labour Court for decision on merits, but both .the learned counsel requested, in the interest of expeditions disposal of the case, that this Tribunal should also give a decision on the merits of the case. I have accordingly heard Mr. Ashraf Hussain Rizvi, the learned counsel for the appellant union and Mr. Abrar Hussain, who appeared for the respondent company, at some length on the merits of the case.

3. Now, as regards the matter for payment of overtime work, it was common ground that the Company's hours of work are 42 hours per week but overtime work appears to be a regular and a normal feature in the respondent establishment, for which payment is made at twice the rate of the basic salary plus dearness allowance and conveyance allowance only, ,without taking into consideration the other allowances. The case of the appellant Union, as stated in its application under section 34, I. R.O., is that all overtime work beyond 42 hours per week should be paid at double the total wages of the workmen, including allowances, as provided in section 47 of the Factories Act, 1934. Both the learned counsel, however, submitted that they would be satisfied if the rule laid down in the case reported as Karachi Pipe Mills Ltd. v. Employees' Union (1981 P L C 19) is enforced in the respondent‑Establishment. In that case, the facts of which are somewhat similar to the facts of the present case, it was held by this Tribunal that for any overtime work done by a workman beyond 48 hours a week or 9 hours a day, the workmen would be 6aid at double his ordinary rate of pay, in accord ance with the provisions of section 47 of the Factories Act, 1934, while for overtime work done by a workman below 48 hours per week or 9 hours a day, he would be paid at the rates for overtime prevalent in them Company. Applying the same rules to the instant case, it is directed that for any overtime work done by a workman, which is beyond hours a day or 48 hours a week, the workmen would be paid at doubly the ordinary rate of his pay, as defined in section 47 of the Factories Act and as further interpreted in the case of Karachi Pipe Mills Ltd. by this Tribunal, and for all other overtime work i.e., work which is less than 9 hours a day or 48 hours a week, the workmen would be paid at the rates prevalent in the company or which may be fixed by agreement with the C. B. A. in the respondent‑Establishment.

4. There remains the question of payment of bonus under Standing Order 10‑C and gratuity. It was urged by Mr. Ashraf Hussain that both gratuity and bonus should be calculated on the total wages of the workman as defined in the Payment of Wages Act, 1936. The learned counsel, in support of his contention, placed reliance upon the decision of a learned Single Judge of the Karachi High Court, reported as Zain Packaging Industries. Karachi v. Abdul Rasheed (1981 P LC 800) and the observations made by their Lordships of the Supreme Court in the case reported as Pak. Cigarette Labour Union v. Pakistan Tobbaco Co. Ltd. (P L D 19841 S C 495). The learned counsel also relied upon the definition of wages as contained in Black's Law Dictionary and in the New Gresham Dictionary of the English language. In Black's Law Dictionary the term "wages ' has been defined as follows

"Wages.‑A compensation given to a hired person for his or her services ; the compensation agreed upon by a master to be paid to a servant, or any other person hired to do work or business for him. Clarla v. Solvay Process Co. 172 N. Y. S. 426, 428, 184 App. Div. 629 ; . Cookes v. Lymperis 178 Mich. 299, 144 N. W. 514, 515 ; Phonic Iron Co. v. Roanoke Bridge Co. 169 N. C. 512, 86 S. R. 184, 185. Every form of remuneration payable for a given period to an individual for personal service, including salaries, commissions, vacation pay, dismissal wages, bonuses and reasonable value of board, rent, housing, lodging, payments in kind, tips, and any other similar advantage received from the individual's employer or directly with respect to work for him. Ernst v. Indus trial Commission 246 Wis. 205, 16 N. W. 2d 867.

In a limited sense the word "wages" means pay given for labour usually manual or mechanical at short stated intervals as distin guished from salary, but in general the word means that which is pledged or paid for work or other services ; hire pay. In its legal sense, the word "wages" means the price paid for labour, reward of labour, specified sum for a given time of service or a fixed sum for a specified piece of work. In re : Hotlingsworth's Estate, 37 C1. App. 2d 432, 99 p. 2d 599, 600, 602."

5. In the New Gresham Dictionary of the English language, the term "wages" has been defined as :‑

"Wage. vii a. (O.F.P. wage Fr. gagr a pledge, pawn, security, gages, wages, lit : what is stipulated to be paid, what the person hiring another has pledged himself to give ; same as gage, a pledge. See pree.) The payment given for work done, specifically work done by a domestic, labourer, artisan, etc., as opposed to a salary hire recompense ; generally pl. and in this case some times with a verb in the singular."

6. An identical issue, as has arisen in the instant case was consid ered by this Tribunal in the case of the New Jubilee Insurance Employees' Union v. New Jubilee Insurance Company Ltd ; decided on 2‑2‑1982. In that case, while rejecting the contentions that "wages" for the purposes of the Standing Orders, particularly bonus payable under 10‑C mean total wages, including all allowances, it was observed as follows :‑

"Mr. Chaudhry Rasheed Ahmed sought to argue that for the purposes of computing the statutory bonus under 10‑C, wages not only include house rent allowances but other allowances. He submitted that the definition of wages as contained in the Payment of Wages Act, 1936 would be applicable to the term wages as used in Standing Order 10‑C. He conceded that there was neither any definition of the term wages in Standing Order 10‑C or in any other Standing Orders nor do the Standing Orders provide that the definition of the said word as contained in the Payment of Wages Act, 1936, would be applicable to the Standing Orders. He, however, relied upon clause (c) of the explanation to Standing Order 10‑C in support of his argument that the definition of wages as contained in the Payment of Wages Act, 1936, is applicable at least to Standing Order 10‑C. The said clause reads as follows : ‑

"(c) "wages" does not for the purpose of calculating the bonus payable to a person under clause (1), include the bonus referred to in clause (vi) of section 2 of the Payment of Wages Act, 1936 (IV of 1936)."

I am inclined to the view that from the mere fact that the aforesaid explanation excludes the bonus referred to in clause (vi) of section 2 of the Payment of Wages Act, 1936, while computing wages for the purpose of calculating the bonus admissible under Standing Order '10‑C, no inference can be drawn that the definition contained in the said Act would apply to the word "wages" as used in the said Standing Order. It may be pointed out that the Payment o Wages Act is applicable to the payment of wages to person employed, firstly, in a factory, secondly, upon the Railway, and thirdly, in an industrial establishments or in a group or class of industrial establishments to which the provisions of the said Act have been applied by the Provincial Government by notification in the official Gazette. The respondent Company deals in the business of insurance and admittedly is neither an industrial establishment nor a factory, but would be a commercial estab lishment for the purposes of the Standing Orders Ordinance. In view of this position, Mr. Ch. Rasheed Ahmed conceded that the Payment of Wages Act, of its own force, does not apply directly to the Standing Orders, particularly Standing Order 10‑C. He however, submitted that the respondent‑Company is undoubtedly a commer cial establishment for the purpose of the Sind Shops and Establish ment Ordinance, 1969, and clause (w) of section 2 of the said Ordinance provides that "wages" means wages' as defined in the Payment of Wages Act, 1936. Mr. Choudhry Rasheed Ahmed accordingly sought to argue that through the indirect means of the Sind Shops and Establishments Ordinance, 1969, the definition of "wages" as contained in the Payment of Wages Act, 1936, will be applicable to the respondent Company under the Standing Orders. Section 2 of the aforesaid Ordinance, however, makes it clear that definitions given therein are applicable only for the purposes of the said Ordinance and not for the purposes of any other law. As such, the definition of wages as contained in the Payment of Wages Act, 1936, would be applicable to the respondent Company for of any matter falling undet the Sind Shops and Establishments Ordinance, 1969. but not for the purposes of any other law unless such law adopted the definition in the Payment of Wages Act. Mr. Choudhry Rasheed Ahmed also sought support from 2 decisions, one of this Tribunal and the other of a learned Single Judge of the High Court in support of his contention that the term "wages" in the Standing Orders includes house rent allowance and other allowances. The decision of this Tribunal relied upon by Choudhry Rasheed Ahmed is reported as Karachi Pipe Mills Ltd. v. Employees' Union (1981 P L C 19). That decision., however, involved the question whether house rent and other allowances would be included in the expression "ordinary rate of pay" for the purposes of computing extra pay for overtime under section 47 of the Factories Act. That decision was based mainly on the fact that in that section "ordinary rate of pay" was defined as remuneration capable of being expressed in terms of money except specified items. That decision, therefore, has no application to the facts of the present case. The case before the High Court is reported as Zain Packaging Industries Ltd., Karachi v. Abdul Rasheed and 2 others. (1981 P L C 800) In that case, the question which fell to be considered by the learned Judge of the High Court was whether for the purposes of computing gratuity payable on wages under Standing Order 12; the term "wages" includes house rent and other allowances. It was held by the learned Single Judge, relying on the definition. of wages as contained in the Payment of Wages Act, 1936 that wages for the purposes of Standing Order 12 (6) include allowances like house rent allowance, conveyance allow ance and tea allowance. The learned Judge, however has not given any reasons in support of his view that the definition of wages as contained in the Payment of Wages Act, 1936, applies to the Standing Orders. There would have been no difficulty in this behalf if the term wages had been defined only in the Payment of Wages .Act, 1936, but the position is that this term has been differently defined in a number of Labour Laws, such as the Workmen's Compensation‑ Act, 1923, the Provincial Employees' Social Security Ordinance, 1965, the Employees' Cost of Living (Relief) Act, 1973, and section 40 of the Factories Act, relating to extra payment for overtime. Further, their Lordships of the Supreme Court in the case of Pakistan Cigarette Labour Union v. Pakistan Tobacco Company Ltd. and another (31 have expressly repelled the contention that the Payment of Wages Act, 1936, is a law in pari materia with the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and referred to the definition of wages as contained in "Halsbury Laws of England that wages mean "that part of pay which was intended to remain permanently", Although the Supreme Court was dealing with the question of bonus, yet the observations made by it seem to clearly exclude the application of the definition of wages contained in the Payment of Wage Act, 1936, to the Standings Orders. The relevant observations of the Supreme Court in this behalf are as follows:

"Mr. Minto then attempted to defend the view taken by the learned Judges of the Peshawar High Court on the basis of the definition of wages in the Payment of Waees Act, because the definition of wages in clause (vi) of section 2 of this Act expressly states that wages mean all remuneration .... and includes any bonus ..."And, the learned counsel placed great reliance on this definition because this statute was, so to say, part of our Labour Code. How, although the definition of wages in this statute has been extended to include bonus this is by an express provision. Secondly, this statute is not in pari materia with the Ordinance, and, on the other hand, the definition of wages in some of the other statutes in our Labour Code, such as the Social Security Ordinance and the Minimum Wages Ordinance, expressly clarify that wages do not include any bonus paid to workmen. Obviously, therefore. the definition of wages in the various statutes constituting our Labour Code have reference to the objects of these statutes, and the definition of wages in one statute should not, so to say be transplanted into another statute unless, the Legislature has so prescribed. And, for example, in the West Pakistan Shops and Establishments Ordinance, 1969, the Legislature has made an express provision that wages under this Ordinance mean wages as defined in the Payment of Wages Act. But, as there is no such pro vision in the Ordinance. I am unable to accept Mr. Minto's submission, and, as pointed out by Lord Halsbury long ago, wages mean "that part of pay which was intended to remain permanently." Therefore, with respect, I am not able to agree with the view of the learned Judges of the Peshawar High Court that bonus is a part of wages."

Mr. Mahmood A. Ghani, the learned counsel for the respondent Company, has referred me to 2 decisions, one of this Tribunal and the other of the Peshawar High Court in support of his contention that "wages" as used in the Standing Orders does not include allowance. In the case reported as Muhammad Rafiq v. Pakistan Industrial Development Corporation, Karachi 1977 P L C 262 may learned predecessor held that bonus under Standing Order 10‑C was not payable on allowances but only on basic salary, custom usage and settlement, of course being excepted. In the case reported as Abdul Jabbar Amin v. Siegfried Beacon Pakistan Ltd. 1980 P L C 114 the Punjab Labour Appellate Tribunal held that even for the purposes of Wages Act, 1936 house rent was not a part of wages."

7. I would reiterate the view taken by me in the above case. The definitions of wages as given in the Black's Law Dictionary and New Grasham Dictionary of English language, have not persuaded me to alter the view that I have taken in the case of the New Jubillee Insurance Employees' Union. The Supreme Court, in the case of Pakistan, Cigarette Labour Union has referred to the definition of wages, as given by Lord Halsbury. According to that definition wages mean "that part of pay which was intended to remain permanent," The various allowances payable to the workmen of the respondent‑Company cannot be considered to have that degree of permanence which would make them a part of wages, although they would be included in the total wages of the workmen. I am, therefore, of opinion that except the Cost of Living Allowance, which by law has been made part of wages, the other allow ances admissible to workmen in the respondent‑Establishment and which have been detailed in paragraph 6 of the appellant Union's application under section 34, I. R. O., cannot be considered to be wages for the purposes of computation of gratuity and bonus payable under the Standing Orders. It may further be pointed out that gratuity to the workers in the respondent‑Establishment is not paid for the days. specified in clause (6) of " Standing Order 12, but is payable according to the settlement arrived at on 7‑11‑1979, for different periods depending upon the length of service. According to that settlement, a workman having up to 10 years of Company's service would be entitled to gratuity at 23 days per year of service ; workmen having more than 10 years and upto 15 years of company's service would be entitled at 28 days per year of service, while workmen having more than 15 years of service would be entitled at 33 days per year of service. The settlement does not provide that gratuity would be paid on total wages, including allowances. This is, therefore, another ground for holding that in the instant case, gratuity is to be calculated only on the basic wages plus Cost of Living Allowance and not on the total wages.

8. For the reasons discussed by me above the appeal except to the extent allowed in respect of overtime work, is dismissed.

Appeal allowed.

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