Abdul Hamid Omar FJ:

There are only two issues we have to determine in this appeal, whether the appellants Ahmad Hariri bin Abu Bakar and 298 others are entitled to (a) dark allowance and (b) housing or rental in lieu of housing allowance.

Wan Hamzah J in the High Court at Kuala Lumpur dismissed the appellants claim.

The facts, not in dispute, are that the appellants comprising of Security Officers, Asst. Security Assistants and Junior Security Assistants, are in the employment of the Lembage Pelabuhan Kelang, the respondents. They worked in shifts, i.e. from 7 a.m. to 3 p.m., from 3 p.m. to 11 p.m. and from 11 p.m. to 3 a.m. They claim that those whose shift duties fell between 10 p.m. and 6 a.m. and who performed these duties during the period retrospective to 1 January 1970 were entitled to receive the dark allowance as provided under para. 84 of the Service Circular No. 1 of 1975 ("the Circular") issued by the respondents which reads -

Dark Allowance

84. Employees who are required to work between 10.00 p.m. and 6.00 a.m. shall be eligible for Dark Allowance based on Government rates.

The learned Judge concluded that it was never intended that those who worked in shifts like the appellants be paid dark allowance. He said that there was in force prior to 1 January 1970 Hours of Work and Overtime Rules 1965 governing the payment of dark allowance but the appellants were not eligible for such allowance under the Rules. In arriving at that conclusion the learned Judge took into consideration the recommendation of the Harun Commission concerning dark allowances and the relevant paragraph reads -

Dark allowance is payable to officers who are required to work between 10 p.m. and 6 a.m. The rate is at 15 cts. per hour if on ordinary time and 1¼ times of above rate if work is performed on overtime. We recommend that this allowance be retained at Government rates.

He then went on to say -

It should be noted that the recommendation was merely that the dark allowance be retained as it had been applicable (though to be payable at Government rates), and there was no recommendation that dark allowance be expanded or extended to apply to those who had not been eligible for it. It seems that the reason why it was not recommended that employees of the plaintiff's category be eligible for dark allowance was because the nature of their duties is such that they have to work on shifts and in fixing their salaries their inconvenience of having to work on night shifts was taken into account. This is indicated by a passage appearing in Harun Commission's Report Vol. 1 at p. 100, para. 5.7 which reads:

A number of IMG Employees in the LLN are on two different rates of pay though they are performing similar jobs. This is in respect of employees who are categorised as shift workers and day workers. The shift workers get higher wages than the day workers, in view of the extra hardship and inconvenience imposed upon them.

Although in the above passage no reference is made to security officers, it does show that Harun Commission recognised the desirability of giving extra salary to employees working on shifts and that when fixing the salary for security officers Harun Commission took this factor into account.

The appellants contend that under the term of the employment they are eligible, in addition, for such allowance as may be in force from time to time in accordance with circulars issued by the respondents. Circular No. 1 of 1975 was such a circular.

On the other hand, it is the respondents' contention that the appellants were not entitled to receive dark allowance; only employees holding posts described in Schedule I of the Hours of Work and Overtime Rules, 1965 were entitled to it and the appellants did not come under the Schedule. Two main reasons have been advanced by the respondents to support their contention -

(i) the nature of work of the appellants as security personnel in charge of security within the Port Area requires them to pr