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Appeals Nos. KAR‑375, 376 and 377 of 1982, heard on 13th March, 1983.

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

--‑‑S. 25‑A‑Grievance petition‑‑Maintainable only for enforcement of right guaranteed by law, settlement or award‑Mere practice not guaranteed right ‑Claim based upon practice‑Cannot be agitated before Labour Court in grievance petition.

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

--‑‑S. 25‑A‑Claim for payment of piece rate‑Grounds that such rate being paid to workers employed by contractor for similar work‑Workers employed by Contractor not given benefits of Social Security contributions and Workers Participation Fund etc.‑Claim, in circumstances, held, not based upon any law, settlement or award hence not enforceable through grievance petition.

(c) Employees' Cost of Living (Relief) Act, 1973 (I of 1974)‑---

--‑‑Ss. 3 (5) & 7 read with West Pakistan Industrial and Commer cial Employment (Standing Orders) Ordinance (VI of 1968), S. O. 11 (3)‑Cost of living allowance‑Not part of wages‑Such allowance payable to every employee whose wages do not exceed Rs. 1,500 p.m.‑Workman does not cease to be employee during lay‑off period‑Full Cost of Living Allowance @a Rs. 40 p. m., held, payable during lay‑off period and contention that since half wages are payable during lay‑off period only half of cost of living allowance would be payable, held, not correct.

Masood Ahmad Khan for Appellants.

Shafique Qureshi for Respondents.

Date of hearing : 13th March, 1983.

These 3 appeals are directed against the decision of the learned I11rd Labour Court, given on 8th August, 1982, by which 3 applications, namely, Applications No. 205/81, 206/81 and 228/81, were allowed in full. All the three appeals have been preferred by the Star Textile Mills Ltd. This order will dispose of all the 3 appeals, bearing Nos. KAR‑375, 376 and 377/ 1982.

2. The facts giving rise. to these 3 appeals, shortly stated are that the Star Textile Mills, the appellants herein, are engaged in the manu facture of textiles of different kinds and employ between 1,200 and 1,500 workers in their mills. It appears that some of the work carried on in the mills has been given on contract to independent contractors who employ their own labour. on machines given to the contractors for this purpose. Some of the workers directly employed by the appellant had grievances of different kinds against the appellants and accordingly 190 workers, after serving the requisite grievance notices upon the appellants, preferred grievance petitions under section 25‑A, 1. R. O., in 3 separate groups. to the learned IIIrd Labour Court. Grievance Petition No. 205/81 has been filed by 78 workers, Grievance Petition No. 206/81 has .been filed by 59 workers and Grievance Petition No. 228/81 has been filed by 53 workers. All the 3 grievance petitions are substantially identical and make the following claims :‑‑

(i) that the petitioners with effect from 21st July, 1981 should be paid wages on the basis of attainable production on 3 looms ;

(ii) that the petitioners .should be paid piece rate on textile quality No. 269, Pick 56, at Rs. 36 per 100 meters and on quality No. 1005, Pick 72, at Rs. 40 per 100 meters, as is being paid to the workers by the contractors ;

(iii) that the petitioners be paid full Cost of Living Allowance of Its. 40 per month with effect from 1st July, 1981 without deductions due to lay‑off or leave with pay or without pay ; and .

(iv) to treat the Cost of Living Allowance of Its. 150 as part of wages/ basic wages for the purpose of payment of gratuity, notice pay, leave, etc.

The 3 grievance petitions were consolidated and the evidence led in Grievance Petition No. 205/81 was treated as evidence in all the 3 grie vance petitions. The respondents examined 3 persons from among them selves, namely, Muhammad Nazir, Abdul Jabbar and Sarfraz, but the evidence of the last named was excluded as he did not appear for cross -examination. Both Muhammad Nazir and Abdul Jabbar admitted in the cross‑examination that their services were terminated after a show‑cause notice. The appellants examined Abdul Mateen, their Senior Shift Incharge, who produced the attendance cards of respondents Muhammad Nazeer and Abdul Jabbar. Abdul Mateen was further examined and the evidence of Abdul Jabbar, a contractor of the appellants, was recorded by this Tribunal. The case of the appellants was that the respondent had no legal right either to operate 3 looms or to claim wages on the basis of attainable production on 3 looms. It was, however, admitted in the written statement of the appellants that if 2 or 3 or 4 looms were allocated to a worker and during their operation one of the looms broke down through no negligence of the weaver and could not be operated for at least 14 hours then average payment was made for attainable production for the loom which had so broken down. It was further claimed in the written statement that if due to circumstances beyond the control of the appellants, such as shortage of yarn and as a consequence thereof shortage of teams, any of the looms could not be operated there was no practice for payment on the basis of attain able production of the looms which could not be operated because of the shortage. In regard to the second demand of the respondents, namely, payment equivalent to the wages paid‑ by the contractors to his employees for quality No. 269, Pick 56 and Quality No. 1005, Pick 72 the appellants claimed that there was no privity between the employees of the contrac tors and the appellants and hence the respondent could not claim same wages as the wages being paid to the workers employed by the contractors, particularly when the contractor was not paying Social Security contributions, Workmen's Children Education Cess, etc. in respect of the workers. employed by him. The appellants resisted the third clam of the respondents on the ground that the Cost of Living Allowance of Rs.40 per month was not part of the wages and hence during the period of lay‑off the respondents would not be entitled to the full Cost of Living Allowance but only to half of the. allowance as only half wages were to be paid to the workmen. In regard to the fourth demand of the respondents,, the appellants claimed that the Cost of Living Allowance of Its. 150 is calculated for payment of gratuity upto the rate of 20 days' wages per year of service, as permit ted by the statutory Standing Orders, and that further bonus is paid to workmen in accordance with the settlement arrived at between the management and Collective Bargaining Agent and the quantum payable is not only inclusive of the bonus due under Standing Order 10‑C but further is more than that is provided under the said Standing Order. It was, however, admitted that Cost of Living Allowance of Rs. 150 was not included in the notice pay and this was again sought to be justified on the ground that when a worker resigns from his service, the wages deducted from his dues on account of such resignation did not include the Cost of Living Allowance of Rs. 150. The appellants had also raised an objection that a large number of the respondents had since resigned from their services and collected their due in full and final settlement and hence were no longer aggrieved persons entitled to file and maintain grievance petitions. .

3. The learned Labour Court, in its impugned decision, has not discussed the reasons or the grounds for allowing the first claim of the respondents, namely. the claim for payment on the basis of the attain able production on 3 looms but has merely observed that the witness appearing on behalf of the appellants has given evasive replies wherein he has suppressed the real facts regarding the payment of wages by the contractor to his workers. The learned Labour Court has also obser ved that the workmen directly employed by the appellants to run its spinning, weaving, dyeing and bleaching departments have been adver sely affected by the action of the appellants in giving part of this work to the contractor in consequence whereof the wages of the remaining workers had been reduced by 33% and hence a large , number of workers had rest d or had been removed.

"I have heard Mr. Masood Ahmad Khan, the learned counsel or the appellants, and Mr. Shafiq Qureshi, Advocate, who appeared for all the respondents. Mr. Masood Ahmad Khan's first contention was that a very large number of the original petitioners in the 3 grievance petitions had since resigned and collected their dues and hence they were no longer aggrieved persons entitled to maintain the grievance petitions and in fact had no further interest in the proceedings. Although this plea was raised by the appellants in their reply statement and not only the resignations of these workers as also the certificates of the payment of their dues in full and final settlement were produced, but further even the 2 witnesses examined by the respondents, namely, Muhammad Nazir and Abdul Jabbar, bad admitted that some of the respondents had resigned and left their employment, the learned Labour Court has not examined this plea of the appellants. In order, therefore, to determine which of the original petitioners, were continuing in the employment of the appellants or their grievance was still continuing, such of the respondents who considered themselves still aggrieved and had not been paid their dues in full and final settlement were required to personally appear before this Tribunal. In response to the direc tions of this Tribunal, 12 of the respondents, namely, (1) Gul Akbar SOD of Pasant Khan, (2) Muhammad Nazir son of Majoob, (3) Muhammad Roshan son of Sherdad, (4) Khaista Khan son of Mian Gul, (5) Fazal Huleem son of Muhammad Zareen, (6) Taj Muhammad son of Hakim, (7) Inayatullah son of Asmatullah, (8) Baboozay son of Mello Khan, (9) Behroz Khan son of Shah Raj, (10) Muhammad Shake el son of Karbala Yousaf, (11) Sultan Ghani son of Muhammad Yaqoob and (12) Shakirullah son of Asir, appeared before this Court and stated that they bad neither resigned nor they have been paid their dues in full and final s6ttlement. The names of the last 3 respondents had been shown somewhat inaccurately in their grievance petitions by the respondents but Mr. Masood Ahmed Khan for the appellants conceded that these were workmen of the appellants. Besides these 12 persons, 2 other workers, Allah Dad and Ahmed Jan, who are admittedly the workmen of the appellants and continue in their employment had subsequently appeared before this Tribunal. In fact appellant Allahdad son of Lal Khan is present in Court today. As such the claims of the remaining 176 respondents, who had failed to appear before this Tribunal in spite of the specific directions to them to do so, cannot be allowed on the short ground that they have since left or resigned their employment in the appellants' mills and have been paid their all dues in full and final settlement of their claims and hence have no longer any interest in these proceedings and are no more aggrieved persons.

5. Coming back to the claims of the respondents, as indicated earlier, the first claim of the respondents is that they should be paid wages with effect from 21st July, 1981 on the basis of attainable pro duction of 3 looms. A grievance petition under section 25‑A, 1. It. fl., can only be ire respect of a right conferred by any law, award or a settlement. In the instant case, the claim of the respondents is based on a settlement arrived at between the appellants and the Collective Bargaining Agent therein on 11th June, 1980. According to that settlement the revised wages for plain looms leaving of the piece‑rated workers, and it is an admitted position that the respondents were. piece. rated workers on plain looms, are to b in accordance with Annexure 'F' to the said settlement. The said Annexure provides that the revised production wages to be converted into piece‑rate per working day would be Rs. 8.90 for 2 looms, Rs. 12.50 for 3 looms and Rs. 14.75. for 4 looms. Sub‑clause (v) of clause 6 of the said Annexure provides for payment to such workers on attainable production in case of stoppage of looms and reads as under :‑

On stoppages of the looms by any reason except negligence of the weaver or the reasons beyond control of the management, only attainable production will be considered for payment."

A bare perusal of the provisions of the aforesaid Annexure snakes it clear that it provides for payment of wages on attainable production on the basis of :he looms operated by a weaver. It does not lay. down that workers would be entitled tq operate 3 or more looms or that they would be entitled to wages on the basis of attainable production of 3 looms. As I read the provisions of the said annexare, if a workman was operating 3 looms and one of the looms accidentally broke down due to no fault of the worker, he would be entitled to wages on the attainable production of the 3 looms, but if he was operating 2 looms and one of them breaks down, he would be entitled to wages for attainable produc tion of 2 looms. It is an admitted position that since 21st July, 1981, the respondents have been operating 2 looms though there have been times and cases when they have. .been operating 3 or more looms also. It was, however, argued by Mr. shafique Qureshi that the practice in the appellants' mills was that every respondent was operating at least 3 looms and he was receiving wags on that basis of attainable production of 3 looms even if on certain occasions they had to operate fewer than 3 looms. He claims that this was the practice in the appellants' mills since 4 or 5 years. In support of his claim, the learned counsel invited my attention to the attendance cards of the 2 witnesses of tile respondents, Muhammad Nazir and Abdul Jabbar. They do show that mostly 3 looms were allotted to and operated by these 2 witnesses. A mere practice; however, is not a right conferred by law, award or a settlement and would not ordinarily be enforceable under section 25‑A, I.R. O. As such, I am of the view that this claim of the respondents is not enfor ceable under section 25‑A, I. R. O. However, Mr. Masood Ahmad Khan, the learned counsel for the appellants, made a statement at the Bar that notwithstanding the fact that the respondents were not entitled as of right to claim the difference ‑in wages between the attainable pro duction of the looms actually operated by them and the wages for the attainable production of 3 looms, the appellants would make to the 14 contesting respondents ex gratia payment of the difference, with effect from 21st July, 1981, in the wages actually received by them on the basis of the number of looms operated by them and wages specified in Annexure 'F' to the settlement of 1980 on attainable prosecution on 3 looms, i.e. at the rate of Rs. 12.15 per day.

6. The second claim of the respondents, namely, entitlement to be paid piece rate for quality No. 269, Pick 56, at Rs. 36 per 100 metres and quality No. 1005, Pick 72, at Rs. 36 per 100 metres, being the rates paid to the workers employed. by the contractor of the appellants, admittedly is not founded on any law, settlement or an award.. The sole basis of his claim is that the workers of the contractor are being paid at the rate claimed by the respondents. The learned Labour Court has allowed this claim on the sole ground that there cannot be discrimination between the workers employed in the same mills. No question of unrea sonable discrimination arises in the instant case as the respondents are and at the relevant time were the employees of the appellants while the employees being paid for the above qualities at the higher rates were employees of an independent contractor. Further more, there is evidence to show that the contractor was not paying Social Security contributions, Education Cess for the workmen's children, contribution for the Workers' Participation fund etc. in respect of the workmen employed by him. A such, the workmen' of the contractor were deprived of certain benefit which were enjoyed by the workmen of the appellants under law. These benefits more than compensate for the reduction in the actual wage received by the respondents. In any case, since this claim of the respondent is not based on any law, award or settlement, it cannot be enforced through a grievance petition under section 25‑A, I. R. O.

7. Coming to the next claim of the respondents, namely the payment of full Cost of Living Allowance to the workmen of the appellants at the rate of. Rs. 40 per month with effect from 1st July, 1981, it may be pointed out that the said claim is founded on subsection (5) of section 3 of the Employees' Cost of Living (Relief) Act, 1973, which provides for the payment of the said Cost of Living allowance by the employer to every employee of his whose wages do not exceed Rs. 1,500 per month. The said Cost of Living Allowance does not form part of wages as section 7 of the said Act has been made inapplicable to it. In the case. of lay‑off, the workmen are to be paid by the employer an amount equivalent to one‑half of their wages, during the first 14 days of lay‑off as compensation. If the Cost of Living Allowance of Rs. 40 as payable under subsection (5) of section 3 of the aforesaid Act had been a part of the wages of a workman, the employer would have been justified in paying only half of this Cost of Living Allowance for the period of the lay‑off but as it does not form a part of wages, half of the Cost of Living Allowance cannot be excluded or its payment denied to the workmen on the ground that only half wages are payable to the workmen during the period of lay‑off. Subsection (5) of section 3 of the aforesaid Act makes it mandatory for the employer to pay to every employee of his, whose wages do not exceed Rs. 1,500 per month, the Cost of Living Allowance of Rs. 40 per month. During the period of lay‑off, the workmen do not cease to be the employees of the employer and the bond of the employer and the workmen is not terminated, despite the fact that the payment made to them during the period of lay‑off is described as compensation and not wages. The bond of employer and employee can only be surrendered if after 14 days of the lay‑off, further lay‑off is considered necessary and in consequence the services of the workmen are terminated or the workmen themselves leave or resign. Similar would be the position in the case of workmen who are allowed leave with full pay. It may, however, be pointed out that a grievance petition has to be in respect of specific grievance and there is no evidence to show that any particular respondent was denied any part of the said Cost of Living Allowance of Rs. 40 on account of his proceeding on leave whether with pay or without pay.

8. There remains for consideration the cast claim of the respondents, namely, treating the Cost of Living Allowance of Rs. 150 as part of the wages for the purposes of gratuity and leave, etc. There is no evidence that the said Cost of Living Allowance was not treated as wages when making payment of gratuity, leave pay or notice pay to any workman. Furthermore, it has been asserted by the appellants that for the purposes of paying gratuity at the rate of 20 days wages per completed year of service, the said Cost of Living Allowance of Rs. 150 is treated as part of the wages and that further the bonus being paid to the workmen exceeds the statutory bonus under Standing Order 10‑C calculated on the basis of one month's wages per month including the Cost of Living Allow ance of Rs. 150. As such, no statutory right of the respondents has been breached in this beh41f. There is, however, one point which needs Com ments. The appellants have claimed that inasmuch as while deducting the notice pay from the dues of ‑the workmen who resign the said Cost of Living Allowance is not deducted, therefore, in paying notice pay to the workmen, the said Cost of Living Allowance is excluded. Merely because the appellants do not recover from a workman who had resigned the full notice pay admissible under the law, including the components of the Cost of Living, does not entitle or justify the appellants in refusing to pay the component of Cost of Living Allowance to a workman when his services are terminated with notice pay. It may, however, be pointed out that there is no evidence on record that the services of any respondent were terminated with notice pay which does not include the component of Cost of Living Allowance of Rs. 150.

9. For the reasons discussed by me above, I would partly .allow the 3 appeals, as indicated above. Mr. Masood Ahmad Khan requests that the amount deposited by the appellants be refunded to them. I have already referred to the statement made by Mr. Masood Ahmad Khan that the appellants will be making payment to the 14 contesting respondents of the difference in the wages already paid to them while operating less than 3 looms and the wages specified in Annexure F' to the settlement of 1980 on the attainable production of 3 looms. Mr. Masood Ahmad Khan undertakes that this payment as well as difference in wages/compensation on, account of lay‑off will be made to the 14 contest ing respondents within 14 days. In view of statement, the amount deposi ted by the appellants be refunded to them.

A. E. Appeal dismissed.

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