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Appeal No. KAR‑233 of 1973, decided on 28th May 1973.

‑‑S. 34 [as amended by Industrial Relations (Amendment) Ordinance (XLVIII of 1972)] ‑ Maintainability of application by individual workman‑‑Depends upon date of occurrence of cause of action--- Amendment omitting word "workman" from section 34 prospective having no retrospective effect‑--Cause of action accruing prior to amendment‑‑Workman, in circumstances, held, could make applica tion even after amendment.

-‑‑Termination due to old age‑Retirement age not proved‑--Termi nation, in circumstances, held, not proper and arbitrary‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. O. 12.

-‑‑Re‑instatement‑Back benefits or compensation‑No hard or fast rule can be laid for awarding compensation or back benefits-‑‑ Termination made due to old age‑‑‑Order of termination set aside due to no proof of retirement age‑-Mala fide intention not proved --Ends of justice, an circumstances, held, would be met if workman awarded one month's salary as compensation instead of back wages for entire period of unemployment involved.

M. A. Shahani for Appellant.

Z. X. Chishti for Respondent.

Date of hearing : 25th May 1973.

This is an appeal against an award of the learned Presiding ,Officer of Sind Labour Court No. V, Karachi, dated March 21, 1973, whereby the learned Labour Court ordered the re‑instatement of the respondent with full back benefits "as calculated by hire". The facts briefly put ate these.

The respondent was employed as Media Manager in the concern of the appellant. He had put in 21 years and 3 months service. On 16th July, 1972, his services were terminated on the ground of old age. The respon dent claimed his age to be 54 years. The case of the appellant was that the application was not maintainable as on 13th November 1972, when the respondent made his application before the learned Labour Court section 34 of the Industrial Relations Ordinance, 1961 (hereinafter called the Ordinance) bad already been amended on 6th November 1972, whereby the word "workman" was omitted from section 34 of the Ordinance. In other words, an individual workman had no right after the promulgation of the amended Ordinance on 10th November 1972, to make an application under section 34 of the Ordinance. It was in the next place contended that the respondent was not a workman. Lastly, it was submitted by the appellant that it was a simple termination of service within the meaning of Standing Order 12 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Standing Orders Ordinance), on payment of one month's salary and, therefore, there was no violation of any guaranteed right to the respondent.

3. The learned Labour Court did not give any finding about the main tainability of the application under section 34 of the Ordinance. I am, however, of the view that the cause of action arose to the respondent in September 1972, when he could make an application under section 34 of the Ordinance. The respondent had a vested right in September 1972, to apply under section 34 of the Ordinance. The amendment of section 34 of the Ordinance is only prospective, it has not been given retrospective effect I would, therefore, hold that the respondent could apply under section 34 o the Ordinance.

4. So far as the question of the respondent being a workman is concerned, it is rightly contended that the amended definition of "workman" on the date of the impugned order should not have been taken into conside ration by the learned Labour Court. The law applicable on the date when the cause of action arose should have been taken into consideration. The definition of "workman" under section 2 (xxviii) of the Ordinance, as it stood in September 1972, included a supervisor also. Supervisor was defined to mean, "a worker immediately above the lowest level of workers in an establishment or industry who has supervisory duties but no power to engage or remove or take any other disciplinary action against another worker by his own authority". In order that a supervisor may be held to be a workman, he must prove that he is a workman immediately above the lowest level of workers in an establishment. The respondent claimed in paragraph 3, of his affidavit to be a workman. It was for the appellant to prove that the respondent was not immediately above the lowest level of workmen. The appellant did not put a single question to the respondent in cross‑examina tion that he was not immediately above the lowest level of workmen. In these circumstances, I would hold that the respondent was a workman.

5. It is true that services of an employee could be terminated under Standing Order 12, of the Standing Orders Ordinance on payment of one month's notice pay. It was, however, the case of the respondent that the termination of his employment was not bona fide. The case of the appellant on the one hand was that the respondent had reached the age of retirement, There is no evidence on behalf of the appellant to prove as to what was the age of retirement of persons employed by the concern of the appellant. In the absence of any proof of age of retirement, the action of the appellant B concern was arbitrary and the service of the respondent could not be terminated under the cover of Standing Order 12 of the Standing Orders Ordinance.

6. Lastly, it was contended‑ that the Standing Orders Ordinance did not apply to the appellant's concern. The learned Labour Court rightly held that the appellant failed to produce the record to establish that it was employing less than 20 persons. In the absence of any satisfactory evidence. I would hold the provisions of Standing Orders Ordinance would apply to toe appellant concern.

7. It has been conceded by Mr. Z. H. Chisti, the learned Advocate for the respondent, that if the order of re‑instatement of the respondent is maintained, the respondent would not be entitled to Gratuity, Notice Pay and six months accumulated and unavailed Earned Leave. He, however, submitted that though he would not be entitled to Gratuity and six months accumulated and unavailed Earned Leave and Notice Pay, but would be entitled to back benefits. At this stage, it may be mentioned that the learned Labour Court granted Rs. 4,650 towards six months accumulated and unavailed Earned Leave, though the respondent very clearly admitted in his cross‑examination that his leave balance was only 21 days. The respondent stated as under :‑

"It is correct that my leave balance is only 21 days."

8. The learned Labour Court should be careful in awarding such large amounts as of Rs. 4,650 without considering the evidence on record.

9. The last question that requires consideration is as to what compensation or back benefits should be awarded to the respondent. No hard and fast rule can be laid down for awarding compensation or back benefits. In the present case, the respondent has been unable to prove that the Management was unfavourably inclined towards him so as to terminate his services. It may be that the Management thought that the respondent was now old and he should be replaced by a younger man. The respondent is being re‑instated as the appellant had failed to prove as to what was the retiring age in his concern. In the absence of any such proof, the action of the appellant has been held to be arbitrary. In my view ends of justice would be met, if the respondent is awarded one month's salary as compensation.

10. For the reasons given above, the award of the learned Labour Court is modified to this extent that the respondent will be entitled to re‑instatement and to receive one month's salary as compensation.

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