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Appeal No. 27 of 1984, decided on 30th May, 1985.

(a) Payment of Wages Act (IV of 1936)

-- Ss. 1(6), 15 & la - Wages payable to be determined with reference to period for wages allegedly not paid-Jurisdiction of Authority-Depends on such wages-Petitioner claiming payment of house rent allowance-Authority rejecting petition on grounds that wages inclusive of claimed He use Rent Allowance were more than Rs. 1,000 p. m.-Evidence relating to wages for period pertain ing to claim not taken into consideration and had it been taken into consideration wages inclusive claimed allowance not calculat ing more than Rs. 1,000 p. m Labour Court, in circumstances, accepting appeal -ad remanding case to Authority to examine evidence afresh and also permit parties to adduce further evidence to ascertain amount of average wages between period of claim.

P L D 1963 S C 340 and 1984 P L C 587 ref.

(b) Payment of Wages Act (IV of 1936)

---Ss. 2 & 15-Wages-House rent allowance-Part of wages.

M. Bashir Awan for Appellant.

A. Ghani Khan for Respondents.

This appeal is directed against order dated 24th July, 1984 passed by the Authority under the Payment of Wages Act, Hyderabad whereby he dismissed the Application No. 81/79 filed by the appellant under section 15 of Payment of Wages Act for recovery of Rs. 15,300 with compensation.

2. The appellant had preferred an application under section 15 of P. W. A. stating therein that he is a permanent workman being employed as Maintenance Foreman at a monthly salary of Rs. 806. Rs. 300 were said to have been sanctioned by the respondent as house rent to the workers/employees of the group of the appellant with .effect from 1st January, 1975. Since the appellant was entitled to receive the same, he made repeated requests to the respondent but with no result and so he filed the said application before the learned Authority for a direction to the respondent to pay him Rs. 15,300 with effect from 1st January, 1975 to 31st March, 1979 with compensation at 10 times and cost.

3. This petition was resisted on behalf of the respondent pleading that. firstly the house rent, does not form part of wages and, secondly, in any case, if this claim of house rent is added to the wages of the applicant, his monthly salary would exceed to Rs. 1,000. Accordingly, the application would not b maintainable as it would be beyond the pecuniary jurisdiction of the learned Authority. It has also been pleaded that the applicant would not be entitled to the house rent because he has been provided with a residential quarter. Finally, it has been urged that the applicant is not a workman and he being a Foreman, Maintenance Spinning Department, comes within the category of an officer.

4. After recording the evidence, the learned Authority, by the impugned order rejected the claim of the applicant/appellant on two-fold grounds firstly that he has no jurisdiction because the wages of the applicant exceeded to Rs. 1,000 p. m. and, secondly, that the applicant was not entitled to the house rent because he bad been provided a residential accommodation. This order has now been assailed in this appeal.

5: I have heard Mr. M. Bashir Awan, Advocate for the appellant, and Mr. A. Ghani Khan, Advocate for the respondent. I have also minutely scrutinized the evidence on record.

6. It has been contended on behalf of the appellant that in view of the dictum laid down in P L D 1963 S C 340 and 1984 P L C 587, the learned Authority is supposed to consider only the basic average wages to exercise his jurisdiction and since in the instant case the learned Authority has not examined what were the average wage of the appellant in a month, this case he remanded to record further evidence in the matter and also to consider the evidence already brought on record. Learned counsel also submits that the appellant was of the status of Officer and so in view of the orders of the respondent itself as per Exh. P. 1, he became entitled to Rs. 300 p. m. towards house rent and since this amount was not paid, he is entitled to the payment thereof. He also submits that the house rent would certainly be part of the wages. Mr. Ghani on the other hand submits, that the applicant/appellant had himself admitted his wages as Rs. 806 p. m. and if ,Rs. 300 are added to the claimed wages, the same would exceed Rs. 1,000 p.m. and so the learned Authority has rightly held that this matter would beyond his jurisdiction. His further submission is that as per 1982 P L C 325, house rent cannot be claimed as wages and so even if the learned Authority has jurisdiction in the matter, the appellant cannot claim the house rent. On this score as well, the application of the appellant is not maintainable. It has also been contended that according to the settlement Exh. D/l, as per demand No. 3 of the C. B. A. Union house rent was permissible to the workers to the extent of 5% provided such a worker is not in possession of residential accommodation, since admittedly the appellant is having official accom modation, he would not be entitled to any house rent even under this settlement. Finally, it has been urged that the appellant is a workman as pleaded by himself in para. 1 of his application before the learned Authority.

7. I would first examine if the learned Authority had jurisdiction in the present case. The application was filed by the applicant perhaps on 19th September, 1979 and on this date he claimed his wages as Rs. 806 p. m. He also claimed Rs. 300 towards house rent having been sanctioned by the respondent with effect from 1st January, 1975. The claim advanced before the learned Authority was from 1st January, 1975 to 31st March, 1979. Accordingly in order to ascertain what would be the average wages of the appellant, the learned Authority was obliged to find out what wages were being drawn by or payable to the appellant in between the period referred to above. It appears that instead of examining the record before it or appreciating the legal position, he simply based his findings on the averments made by the appellant in para. 1 of the application alone. In the instant case the appellant was examined and cross-examined quite at length. Similarly the respondent witness was also tendered in evidence. Accordingly in order to come to a definite conclusion I would refer to the evidence so far brought on record.

8. In his examination-in-chief the applicant started his evidence by deposing that "in year, 1975 I was getting Rs. 550 as wages. I produce the letter dated 31st May, 1975 showing my scale as Rs. 550 including C. L. A., with effect from 1st January, 1975 as Exh. P. 1." Subsequently he stated that "I had mentioned Rs. 806 in my application which includes C. L. A., with my pay." In his cross-examination he denied that his pay was more than Rs. 1,000 even at the time of filing of his application as the same included all his allowances. The solitary witness of the respondent in his cross-examination deposed as under :-

"I do not know the pay of Mahmoodullah or Ghulam Mustafa but it was less than Rs. 1,000. I do not know about the deduction. I see Exh. D/3 regarding payment of ex gratia. It relates to the years 1973-74. I do not remember whether the applicant was brought in the Officers Grade in the year, 1975. 1 do not remember if the basic pay of the applicant was Rs. 550 in 1975. It may be known to the Accounts section. I do not know if the house rent was realised from the' applicant till 1976. It is correct that the Manager resides in the Bungalow provided by the Mill and so he also gets house rent. It is correct (word in' appears to have been subsequently added to suggest that Mahmoodullah and Ghulam Mustafa were borne on Officer grade in 1975."

9. In view of the above statements of the appellant and the witness of the respondent it is evidently clear that the appellant was drawing Rs. 550 including allowances in 1975 and that what were his wages in 1979 at the time of filing the application, include the other allowances. Accordingly, it could have not been held that the applicant was drawing more than Rs. 1,000 and so the matter was beyond the jurisdiction of the learned Authority.

10. In the Authorities referred to by Mr. Awan and plain reading of section 1(6) of P. W. A. it is evidently clear that the wages payable are to be determined in respect of a wage period for which the wage allegedly not paid are payable. If this matter would have been assessed and examined after considering the evidence on record, the result would have been otherwise. I accordingly hold that in the instant matter, even if the A claimed house rent is included in the wages being drawn by the appellant from 1st January, 1975 onwards, shall not exceed to Rs. 1,000 p. m. and so the learned Authority is competent to adjudicate upon this matter.

11. I would now advert to the submissions of Mr. Ghani in regard to the house rent. The case-law cited at the Bar by Mr. Ghani is not at all applicable to the present case inasmuch as this case was decided under the provisions of Social Security Ordinance and not under the P. W. A. The definition of term "wages" under the two enactments is quite different. Under the P. W. A. only the value of house has been excluded from the definition of wages but the house rent has always been treated as part of wages, In this view of the matter the contention of Mr. Ghani is repelled.

12. It has also been contended by Mr. Ghani that the appellant is a workman and would be governed by the settlement Exh. D/1 and since he has been provided residential accommodation, he cannot claim house rent as well. The submission of Mr. Ghani is contrary to the assertions made in para. 6 of the reply statement wherein it has been averred "that the contents of para. 1 are admitted to be true except the word "worker". He has been working as Foreman Maintenance Spinning Department, in the capacity of an Officer." This also appears to have been corroborated by the solitary witness of the respondent by deposing that "it is correct to suggest that Mahmoodullah and Ghulam Mustafa were borne on Officers Grade in 1975." As pointed out by me above, "in" appears to have subsequently been added as this addition appears to be conspicuous and glaring. This word "in" would also be contrary to para. 6 of the reply statement referred to above. According to the application, the appellant was Maintenance Foreman and which designation has also been admitted by the respondent in its reply statement. If there bad been a mention of word "workman" in para. 1 of the application it cannot be concluded for good that the appellant is only a workman and does not come within the category of an Officer. Of course, this is subject to evi dence and if the evidence shows that a particular person is an Officer, he is to be considered as such.

13. Respondents letter dated 31st May, 1975 appears to have been exhibited as P/1 at page 57 of the Lower Court record on 26th May, 1980. This circular has not at all been considered by the learned Authority while disposing of the present case, though the claim of the applicant hinges on this circular alone.

14. In view of what has been discussed hereinabove, I accept this appeal but remand the case to the learned Authority to examine the evidence afresh and also to permit the parties to adduce further evidence as may be tendered by them to ascertain what would be the average wages of the appellant in between the claimed period from 1st January, 1975 and whether the appellant would be entitled to house rent in pursuance of circular referred to above and at what rate. Since this matter is terribly old, I would direct the learned Authority to dispose of this case by the end of July, 1985 positively. The parties are directed to appear before the Authority on 6th June, 1985 for further proceedings. R & P be also sent forthwith.

A. E.

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