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Constitutional Petition No. 99 of 1985, decided on 17th March, 1986.

‑‑‑Rr. 30 & 40‑‑Travelling‑ allowance, payment of‑‑Provisions of r.30 would apply to employee who travels by conveyance owned by corporation, journey being beyond 10 Km.‑‑Driver, driving school bus, held, could not be said to be travelling in conveyance provided by corporation‑‑Provisions of rr. 30 & 40, Travelling Allowance Rules would not be applicable to such drivers, of school bus of children of employees of corporation.

‑‑‑Art. 199‑‑Constitutional jurisdiction, exercise of‑‑Competent forum placing particular construction on particular rules, held, would not, render High Court in constitutional jurisdiction to interfere with order of such forum merely on ground that different construction of rules would have been possible‑‑Tribunal having jurisdiction could decide rightly or wrongly.

Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 S C 139 ref.

(c) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑

‑‑‑S. 4 & Sched.‑Standing orders, modification of‑‑Standing orders provided in Sched. to Ordinance VI of 1968, could be modified by means of Collective agreement and not otherwise‑‑No such agreement, however, held, would have effect of taking away or diminishing any right or benefit available to workmen under provisions of said schedule‑ Proviso to S. 4 of Ordinance VI of 1968, could be invoked in aid of any right or benefit which was available to workman under provisions of Schedule was taken away.

‑‑‑S. 2(vi)‑‑Travelling allowances, exclusion of‑‑Provisions of S. 2(vi) of Payment of Wages Act, expressly excludes travelling allowance from ambit of definition of wages.

Tariq Mahmood for Petitioners. Muhammad Aslam Chishti for Respondents Nos. 1 and 2. Nemo. for Respondents Nos. 3 and 4. Date of hearing: 17th March, 1986.

‑‑This petition is directed against the order, dated 10‑6‑1985 passed by the learned Labour Appellate Tribunal Baluchistan, Quetta.

2. The brief facts leading to filing of the above petition are that the petitioners are employed as drivers by P.M.D.C. at Degari and since 1981 have been posted as drivers on School Buses. Their duty is that at 6.00 a.m. they pick up the children from their houses from Degari and drop them at their respective schools /colleges at Quetta. In the afternoon they again pick up the children from their respective schools /colleges at Quetta and take them back to Degari where they drop them at their respective houses. It is an admitted position that the petitioners are paid overtime for performing duty for more than the required hours daily. According to learned counsel for the respondents Nos. 1 and 2 they are paid four hours daily overtime, which is equivalent to one day wages. Be that as it may, the petitioners raised a demand for the daily allowance in terms, of Rule 40, read with Rule 30 of the Travelling Allowance Rules (hereinafter called as the Rules). Their above demand was rejected by the above respondent. Thereupon, they served a grievance notice, dated 18‑7‑1983 upon the respondent No. 1 under section 25‑A of the I.R.O., which was replied to by the above respondent on 28‑7‑1983 again rejecting the claim about their demand. Thereupon, the petitioners filed an application under section 25‑A of the I.R.O. in the Court of the learned Presiding Officer Labour Court‑III, Quetta which was resisted by the above respondents but the learned Labour Court, vide its order, dated 29‑11‑1984 allowed the petitioners above application to the extent mentioned in the order. The above respondent being aggrieved by the above order filed an appeal namely Appeal No. 21 of 1984 before the learned Labour Appellate Tribunal Baluchistan at Quetta, which was allowed by the impugned order, dated 10‑6‑1985. The petitioners being aggrieved by the above order have filed the present petition.

3. In support of the above petition Mr. Tariq Mahmood, Advocate for the petitioners has urged as follows: ‑

"That since the petitioners were entitled to the daily allowance in terms of the rules which have statutory powers the learned Labour Appellate Tribunal was not justified in setting aside the order of the learned Labour Court.

(ii) That the settlement between the Collective Bargaining Agent and P. M. U. C. could not have modified the benefit which the petitioners were entitled under the above statutory rules in view of the clear prohibition contained in proviso to section 4 of the Standing Order Ordinance, 1968 (hereinafter called as the Ordinance, 1968).

(iii) That since the other drivers employed by P.M.D.C. are paid travelling allowance there is no justification for the above respondents Nos. 1 and 2 to refuse the payment of the same to the petitioners. On the other hand Mr. Muhammad Aslam Chishti, learned counsel for respondents Nos. 1 and 2 has contended as follows: ‑

(i) That a perusal of Rules will indicate that they cannot be pressed into service in the case of a driver whose normal duty is to drive a school children bus from Degari to Quetta.

(ii) That in any case the learned Labour Appellate Tribunal was competent to place particular construction on the above rules and this Court in exercise of writ jurisdiction cannot interfere with the order of a competent tribunal merely on the ground that it might have placed different construction to the above rules.

(iii) That the proviso to section 4 of the Ordinance, 1968 can only be pressed into service if it can be pointed out that the Schedule to the Ordinance provides an item of daily allowance.

(iv) That the learned Labour Court has wrongly invoked the provision of Payment of Wages Act (hereinafter referred to as the Act) as travelling allowance has been expressly excluded from the definition of Act in clause (vi) of section 2.

4. In our view, the basic point for consideration is, as to whether rules are applicable to the petitioners or not. In order to appreciate it may be advantageous to reproduce the same, which read as under: ‑

Rule‑30. "Conveyance supplied by Corporation:

(i) Short journey from Headquarter. ‑‑When an employee travels by conveyance owned by the Corporation and the journey is beyond 10 Kilometres he will be entitled to draw daily allowance of his grade for any day on which he is absent from his headquarter on official duty for more than six consecutive hours and return to his headquarters the same day.

(ii) Journeys during tour.‑‑When on journey other than a journey by railway, an employee uses a means of locomotive provided at the expenses of the Corporation he may draw the daily allowance of his grade, and may not exchange it for mileage.

Rule 40. Daily Allowance:

(i) A daily allowance is a uniform allowance for each day of absence from headquarters and is intended to cover the ordinary daily charges incurred by an employee in consequence of such absence. Subject to the provisions of Rule 46, it is expected to cover the elements of lodging, board, transport and incidental expenses.

However, if the nature of duty involves lot of travelling from one place to another i.e. collecting quotations, purchasing, attendance in Courts and seeking legal advice of Advocates, etc., then in such cases, taxi charges can be allowed by the competent authority at their own discretion, keeping in view general conditions and practice of station concerned and depending upon nature of duty and status of the touring employees."

A plain reading of the above quoted rule 30 indicates that it is only applicable to an employee who travels by a conveyance owned by the Corporation and the journey is beyond 10 Killometres. In our view a driver driving a school bus cannot be said to be travelling in a conveyance provided by the P.M.D.C. The above view also gets support by the above quoted rule 40 particularly by sub‑para. (2) of rule 40 which provides that if the nature of duty involves lot of travelling from one place to another i.e. collecting quotations, purchasing, attendance in Courts and seeking legal advice of Advocates, etc., then in such cases, taxi charges can be allowed by the competent authority at their own discretion, keeping in view general conditions and practice of station concerned and depending upon the nature of duty and status of the touring employees.

5. This lead us to the second limb of the argument of Mr. Muhammad Aslam Chishti that the learned Labour Appellate Tribunal being a competent forum to place a particular construction on the above quoted rules and that even if this Court might have taken a different view as to the interpretation of the above rules, this would not warrant interference by this Court in exercise of Constitutional Writ Jurisdiction. The above contention has force as it has been held by the superior Courts including the Honourable Supreme Court of Pakistan that al Tribunal having jurisdiction can decide rightly or wrongly. In this regard reference may be made to the case of Muhammad Hussain Munir and others v. Sikandar‑and others P L D 1974 S C 139.

6. Apart from the above legal position we are also inclined to take the same view as was found favour with the learned Labour Appellate Tribunal namely that the above quoted rules are not applicable to the petitioners' case.

7. As regards the application of the proviso to section 4 of the Ordinance, it may be pertinent to refer to section 4 which provides as follows: ‑

4. Modification of Standing Orders.‑‑The standing Orders may be modified by means of a collective agreement and not otherwise.

Provided that no such agreement shall have the effect of taking away or diminishing any right or benefit available to the workmen under the provisions of the Schedule".

8. A perusal of the above quoted section indicates that the Standing Orders provided in the Schedule to the Ordinance can be modified by means of collective agreement and not otherwise. But there is an embargo on the above power and that is that no such agreement should have the effect of taking away or diminishing any right or benefit available E to the workmen under the provisions of the Schedule. The above proviso can be invoked in aid if any right or benefit is available to a workman under the provisions of the Schedule. In other words if the disputed item has not been provided for in the Schedule, the above proviso is not applicable.

9. Mr. Tariq Mahmood learned counsel for the petitioner is unable to refer any of the provisions in the Schedule to the Ordinance providing daily allowance. The only provision available is para 10, which speaks of "any payment of wages". There is no definition of the term "Wages" given in the Ordinance. Reference may be made to clause (vi) of E section 2 of the Act which expressly exclude travelling allowance from the ambit of the definition of wages.

10. Adverting to the contention of Mr. Tariq Mahmood that the respondent has been paying daily allowance to the other drivers and, therefore, there is no justification for the respondent to decline in the case of the petitioners, it may be observed that Charter of Demands submitted by the Collective Bargaining Agent contained demand No. 24(A) as follows: ‑

"DEMAND NO. 24(A).

Drivers doing duty outside Degari may be paid T. A. /D. A.

The above demand has been settled in terms of the settlement arrived at between C.B.A. and the employer in the following terms: ‑

"AGREEMENT

It is agreed that those Drivers who are not specifically attached with Bus and School Vans, whenever proceed on official duty to Quetta will be paid D. A. as per P.M.D.C. T.A. Rules."

The payment has been made by the respondent to the other drivers not by virtue of rules but because of the above settlement. The fact that the above settlement provides that the D.A. would be paid only to those drivers who are not specifically attached with school bus and vans clearly indicates that the drivers who are specifically attached to the school bus or vans are not entitled to claim daily allowance. The above settlement also supports the contention of Mr. Muhammad Aslam Chishti that if the rules would have entitled the drivers to claim daily allowance, there was no occasion for the C. B. A. to raise a demand in h the charter of demand in the above terms quoted hereinabove. Admittedly the petitioners are receiving overtime allowance they cannot claim Daily Allowance even on that score.

11. We, are, therefore, inclined to hold that the petition has no merits and it is dismissed but there would be no order as to costs.

A.A.

Petition dismissed.

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