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Petition No. LHR 271 of 1985, decided on 12th October, 1985.
‑‑‑ Ad interim stay order‑‑Conditions prerequisite. (i) arguable case, (ii) balance of convenience and (iii) irreparable loss‑‑Irreparable loss‑ Means a loss which cannot be calculated in terms of money‑‑Dispute relating to deduction of cost of living allowance alleged to have been paid in excess erroneously‑‑Labour Court's order "any amount paid in excess of entitlement can be recovered" pending disposal of main case‑ Challenged in revision before appellate Tribunal‑‑Contentions that petitioner workers had arguable case and balance of convenience was in their favour because being low paid employees they would face difficulty by deductions‑‑Held, notwithstanding arguable case and balance of convenience workers were not likely to suffer from any irreparable loss by refusal of stay order in their favour because in case of their ultimate success deducted amount would be paid to them‑‑Appellate Tribunal, in circumstances, refusing to interfere in revision Industrial Relations Ordinance (XXIII of 1969), S. 38(3‑A).
Asmat Kamal for Petitioner.
Muhammad Bashir for Respondent.
Date of hearing: 1st October, 1985.
The order, dated 1‑8‑1985 passed by the learned Presiding Officer, Punjab Labour Court No.2, Lahore is reported to be of no legal effect. The order is "any amount paid in excess of entitlement can be recovered".
2. The dispute is about the deduction of cost of living allowance alleged to have been paid by the respondent to the petitioners erroneously. According to section 3 of Employees Cost of Living Allowance order, 1975, cost of living allowance was to be paid to the employee whose wages were less than Rs.700. So on 1‑8‑1973 the petitioners whose wages were less than Rs.700 were allowed the said allowance. Afterwards amendment was made and the maximum limit of pay upto which cost of living allowance could be allowed was raised to Rs.1100. Before this an amendment was made, whereby it was provided that cost of living allowance would be allowed to those whose pay did not exceed Rs.735. Section 7 of the Employees Cost of Living Allowance Ordinance was amended and cost of living allowance was made part of pay.
3. It has been argued that since cost of living allowance became part of pay, so it could not be deducted afterwards even if for the sake of arguments it be said that at any stage it was wrongly allowed to the petitioner. It has also been argued that to the new entrants cost of living allowance may be paid according to the amended law, but it would not apply only to the employees. As the main case is pending. No opinion can be expressed on the points. However, prima facie the argument does not appear to have much force that amended law would apply to the employees who come in service after the amendment was made. As soon as the pay exceeded the limit fixed by the law, the employees concerned cease to remain entitled to cost of living allowance. This is true that whatever becomes part of wages, it cannot be afterwards deducted or disallowed as by doing so the wages stand decreased but prima facie only that allowance cannot be deducted which legally has formed part of wages. If by mistake some allowance is allowed which, according to law, cannot be given, it does not legally form part of wages.
4. Even if it be accepted that the petitioners have an arguable case, yet they are not likely to suffer from any irreparable injury by the refusal of the stay orders. If they ultimately succeed, whatever is deducted would be paid to them. Irreparable loss is that which cannot be calculated in terms of money. Balance of convenience no doubt goes in favour of the petitioners because being low paid employees, they would face difficulty by the deduction, but unless all the three conditions A are present vis‑a‑vis arguable case, balance of convenience and irreparable loss, stay order cannot be issued. The impugned order, therefore, does not require any interference.
5. As a result, the revision fails and is dismissed.
A.E.
Revision dismissed.
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