HAKIMSONS CHEMICAL INDUSTRIES (PVT.) LTD. EMPLOYEES' UNION,KARACHI Versus HAKIMSONS CHEMICAL INDUSTRIES (PVT.) LTD., KARACHI
DECISION
On the 13th of March,1991 the applicants through their General Secretary had submitted a Charter of Demands to the respondent‑Company under section 26(1) of the I.R.O. As no satisfaction could be obtained, a notice of strike dated the 20th March followed. Thereupon conciliation proceedings had started before the Conciliator. Eventually a settlement was arrived at, which was duly signed by the parties on the 25th of April, 1991.
Clause 10 of the settlement reads as follows:‑‑
"(10) It is further agreed and understood that the increases given by the company under this agreement take into account the rise in cost of living whereby the additional special allowance of Rs.200 (Rupees two hundred) per month are to be set off under the Sindh Employees Special (Payment) Allowance (Amendment) Ordinance, 1990. Accordingly the said additional special allowance stands adjusted/set off against the aforesaid increases totalling Rs.240 (rupees two hundred and forty only) under different benefits/heads."
2. On the 22nd of August 1991 Sindh Employees Special Allowance (Payment) (Amendment) Ordinance XI of 1991 came to be promulgated by the Provincial Government. It was thereafter that the applicant had raised the claim for the payment of the aforesaid allowance of Rs.200 under the said Ordinance with effect from 1‑12‑1990. The respondents by their letter dated September 10, 1991 had declined to accede to the demand, culminating in this application before this Tribunal for the interpretation of clause 10 of the settlement.
3. The settlement demonstrably had been arrived at after the Sindh Employees Special Allowance (Payment) Act, 1986 had been amended in 1990. In the said Act after section 3 the following new section 3‑A was added:
"Insertion of section 3‑A in Sindh Act X of 198. ‑‑‑Every employee whose wages do not exceed two thousand five hundred and eighty‑five rupees per month, shall, in respect of his employment on or after the 1st day of December, 1990, be paid by his employer an additional special allowance‑‑
(a) equal to two hundred rupees per month, if his wages do not exceed two thousand five hundred and eighty‑five rupees per month;
(b) ........................................
Provided that the additional special allowance shall (e set off the amounts payable‑‑
(a) as a relief due 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) ........................................
4. Care was taken, by way of abundant caution to mention in clause 10 of the settlement that because of the increases given to the workers due to the rise in the cost of living, the latter would not claim the allowance granted under this Ordinance of 1990. It was rather otiose because even in the absence thereof, the law would have seen to it that the said increase would have been adjusted as specially 'Mentioned in the proviso.
5. However on the 22nd of August, 1991 came Ordinance XI of 1991 further amending the Sindh Employees Special Allowance (Payment) Act, 1986. This also was to take effect from 1st December, 1990. Its section reads as under:‑‑
"3. In the said Act, after section 3, the new section 3‑A shall be added:‑‑
"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."
Manifestly a formidable change had thus been brought about. The number of the recipients of the allowance had been enlarged by the removal of the limit on their pay, and the proviso in regard to the set‑off had also been done away with.
6. It was contended by Mr. Ali Amjad learned counsel for the applicant that the amendment of 1991, had conferred altogether new rights. It had nothing to do with the cost of living and the workers could not be denied their rights in the name of clause (10) of the settlement. They had not contracted out of all the lawful rights that could ensure to them and there could be no question of any waiver of any benefits that lawfully came their way. Reference was made to a number of cases but the relevant ones will be Muhammad Moin Khan v. Chief Settlement Commissioner and others PLD 1961 SC 436 and New Jubilee Insurance Employees' Union v. Sindh Labour Appellate Tribunal 1982 PLC 1012.
7. It was held in the former case that waiver in law can be effective only if there is consciousness of the right itself at the time of the alleged waiver. In the latter case the ingredients of waiver were pointed out namely (1) that the right should exist, (2) the person in whose favour the right exists should have the knowledge of such right, (3) that he consciously waives such right and (4) that waiver does not violate any law. Therefore there could be no waiver of a right which did not exist.
8. It cannot therefore be said that any waiver was involved though Mr. Humayun, learned counsel for the respondent submitted that it was so. It is also noticeable that in the Ordinance, 1991 neither there was any mention of the rise of the cost of living nor there was any proviso mentioning adjustment as earlier. It cannot therefore be said that the applicants had or could be deemed to have contracted out of their rights. I am therefore of the opinion that the demand of the applicants for the payment of the allowance under the Ordinance No. XI of 1991 free of any adjustment, is not open to any exception. Answered accordingly.
H.B.T./2176/Lb.S Order accordingly.