PAKISTAN MACHINE TOOL FACTORY EMPLOYEES' UNION, KARACHI Versus PAKISTAN MACHINE TOOL FACTORY (PRIVATE) LIMITED, KARACHI
DECISION
It appears that on 30th of May, 1991 there was a Settlement between the parties on the demands, which had been raised by the present applicants. Clause 19 of the Settlement, English translation whereof is to be found in the petition, reads as under: ‑‑
"19. Besides the facilities and benefits available under this settlement, if the Government of Pakistan announces any financial benefits and concessions for the workers which is applicable to the Machine tool workers, the same shall be applicable after the approval of the Ministry of Production. The financial concessions announced by the Government of Pakistan under the Sindh Employees' Special Allowance (Payment) (Amendment) Ordinance, 1990 have been merged in this Agreement."
On the 22‑8‑1991, Ordinance No. XI of 1991 came to be promulgated further amending the Sindh Employees' Special Allowance (Payment) Act, 1986. This also was to take effect from 1‑12‑1990. In the said Act after section 3, the new ,subsection (3‑A) was added, which was as follows:
"3‑A. Every employee, irrespective of wages being paid to him, shall in respect of his employment on or after the 1st day of December, 1990 be paid by his employer an additional special allowance equal to two hundred rupees per month."
The amendment of the Sindh Employees Special Allowance (Payment) Act, 1986, as amended in 1990, was as follows: -
"Insertion of section 3‑A of Sindh Act X of 1986: ‑ ‑ Every employee whose wages do not exceed two thousand five hundred and eighty‑five rupees per month, shall, in respect of employment on or after the 1st day of December, 1990, be paid by his employer an additional special allowance‑‑
(a) equal to two thousand rupees per month. If his wages do not exceed two thousand five hundred and eighty‑five rupees per month; or
(b) Omitted.
Provided that the additional special allowance shall be set off against the amounts payable‑‑
(a) as a relief to rise in the cost of living under an agreement or settlement reached, or an award given, under the Industrial Relations Ordinance, 1969, on or after 1st December, 1990; and
(b) Omitted.
2. The Secretary of the applicant union by his letter, dated 1‑1‑1992, had called upon the Managing Director of the respondent factory for the payment of Rs.200 per month to its workers by virtue of the amendment made in August, 1991. The respondent management through their letter dated 7‑1‑1992 did not accede to the above demand as according to them: ‑‑
"The amount of Rs.200 under the Sindh Employees' Special Allowance (Payment) (Amendment) Ordinance, 1990 now made an Act of Parliament, was mutually agreed as having been merged."
It was thereafter that this application had been filed by the C.BA. for the interpretation of clause 19, referred to earlier.
3. It is to be seen that the text of the clause does not totally rule out the grant of any benefits, if the same were to be made by the Government. It was kept only subject to the approval of the Ministry of Production, Government of Pakistan. The question of approval or otherwise will be of no consequence, if there was a law granting any benefits or advantages to the workers and therefore, the matter has got to be examined from that angle.
4. A mere glimpse of section 3‑A of the Ordinance shows that a great change had come in the Government Policy. The scope had been very much enlarged and the proviso in regard to the set‑off had altogether been eliminated. New rights had been created which had nothing to do with the anxiety of the Government due to the spiralling prices. It is not for us to stimulate as to what was the motivation for the same. But by virtue of being a new right the applicants could neither contract out, nor there could be any question of the waiver of any demand (See Muhammad Moin Khan v. Chief Settlement Commissioner and another (PLD 1961 SC 436) and New Jubilee Insurance Employees' Union v, Sindh Labour Appellate Tribunal (1982 P L C1012).
5. It was held in the earlier case that waiver in law can be effective only if there is consciousness of the parties right itself at the time of the alleged waiver, and in the latter case the ingredients of waiver were pointed out which were (1) that the right should exist, (2) the persons in whose favour the right exists should have the knowledge of such right, (3) that he consciously waives such rights and (4) that waiver does not vitiate any law. It was found therein that there could be no waiver of a right which did not exist.
6. The import of section 3‑A of the Ordinance of 1990 and 3‑A of 1991 being different it cannot be said that the applicants had relinquished their rights. I am, therefore, of the opinion that the interpretation placed by the applicant union is the proper one.
7. Answered accordingly.
H.B.T./2216/Lb.S
Order accordingly.