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Application No. 334 of 1972, decided on 31st July 1972.

---‑‑S. 25‑A [as inserted by Labour Laws (Amendment) Ordinance (IX of 1972)]‑Amendment not retrospective Section 25‑A not applicable to cause of grievance occurring prior to 13‑4‑1972.

Nazir Ahmed Naz for Petitioner.

Saadullah Mumtaz for Respondent.

Abdul Hafeez, petitioner, has moved this application under section 25‑A of the I. R. O., 1969, with the prayer that the respondent be directed to pay him gratuity for the period from 10‑8‑64 to 8‑4‑70.

The case of the petitioner is that he joined G. T. S. as a Hammerman on 10‑8‑1964. He requested the Management to promote him as a Fitter. The District Manager told him that he will be appointed as a Fitter if he resigned from the post of Hammerman. Consequently on 9‑4‑70 he submitted his resignation and was appointed as a Fitter on the next date i. e., 10‑4‑1970. Thereafter, he (the petitioner) filed an appeal for condonation of break in service, which was dismissed. Then he filed a revision petition which also met the same fate. On 8‑5‑1972 he submitted an application for payment of gratuity for the period 10‑8‑64 to 9‑4‑70 and the District Manager told him that the Department had no money to pay him gratuity. The District Manager further ‑told him that his application dated 8‑5‑72 shall be sent to the higher authorities. The petitioner has alleged that he is entitled to gratuity by virtue of agreement dated 15‑4‑1971 executed between the Management and the Union. On 14‑6‑72 the petitioner sent a grievance notice to the respondent but no action was taken on it and thereafter he filed the present petition.

The respondent resisted the petition and in the reply statement raised the following preliminary objections :‑--

(1) That the application is barred by time.

(2) That the petitioner has not been deprived of any right guaranteed or secured to him by or under any law or any award or settlement. The application is not maintainable on that score.

(3) That no notice as contemplated under section 25‑A was given to the employer within specified time of the occurrence of cause of grievance. The application cannot, therefore, proceed.

(4) That the employer of the petitioner is the District Manager Govt. Transpost Service, Multan, and the Punjab Road Transport Corpora tion has been implicated unnecessarily. The application is therefore bad for misjoinder of parties.

Now we proceed on with preliminary objections Nos. 1 and 3. The learned Representative of the petitioner has contended that the petitioner bad submitted an application for the payment of gratuity to the District Manager on 8‑5‑1972 and the District Manager had refused to pay gratuity and therefore the petitioner had sent a grievance notice (copy Exh. P‑2) to the Management on 14‑6‑1972 and the petition and notice are therefore within time. To support his above contention he has relied on the statements of the petitioner and Mr. Mohammad Azam P. W. 2., who have stated that the petitioner had submitted application for the payment of gratuity to the District Manager on 8‑5‑1972. The oral evidence of the petitioner who is highly interested witness cannot be relied upon on this point. In rebuttal Mr. Humid‑ud‑Din, R. W. 1 has stated that besides the applications Exhs. R‑3 and R‑4, the petitioner had submitted no application for the payment of the gratuity. This fact is also admitted by petitioner in cross examination and his statement is self contradictory in that in examination‑in‑chief, he hag sated that he made an application for gratuity on 8‑5‑72 and in cross -examination be deposed that except applications Exh. R‑3 and R‑4, he had riot trade any other application for the payment of the gratuity. The petitioner has therefore failed to prove that he had made an application for payment of gratuity on 8‑5‑72.

In cross‑examination, the petitioner has admitted that he had submitted application Exhs. R‑3 and R‑4 for payment of gratuity. Bout these application were submitted by the petitioner after the dismissal of his appeal. In these application, the petitioner had contended that since his legal appeal for condonation of break in service had been dismissed, therefore, he is entitled to gratuity for the period he served as Hammerman (10‑9‑1964 to 9‑6‑19‑10) and the same may be paid to him. R. W. 1, has stated that the order passed on these applications (copy marked as A) had been delivered to the petitioner. The order read as follows:‑

"According to the R. T. C. Gratuity, Rule circulated vide No. 27‑Reg- 68, dated 16‑10‑68, you are not ,entitled for payment of gratuity as you have less than 10 years service at your credit."

This order is dated 17‑2‑11971. In my view, the cause of grievance had occurred on 17‑2‑1971 when the applications for payment of gratuity wet dismissed. The application is therefore belated, Moreover, section 25-A was inserted in the I. R. O. on 13‑4‑1972 and has no retrospective effect. Ube application is, therefor not maintainable under section 25‑A of the I. R. O.

Even on merits the petitioner has no case. In his statement, he has alleged that he is entitled to gratuity under the agreement dated 15‑4‑1971 while in application R‑4 he has contended that he is entitled to gratuity under agreement dated 27‑12‑1969. Mr. Hamid‑ud‑Din R. W. 1 has stated that under the agreement dated 27‑12‑1969 it was agreed that gratuity to toe workers shall be paid in accordance with R. T. C. Gratuity Rules, 1968. The copies of the said agreement and the Rules have been placed on the file as R. 6 and R. 7 respectively. These rules make provision for gratuity only in respect of those employees who have completed 10 years' continuous service against a non‑pensionable post. Rule 6 states that the servants of the corporation with less than 10 years service shall also be entitled to retiring gratuity in the following cases :‑--

(a) who have died before completing 10 years' service;

(b) who have retired before 10 years of service due to continuous ill-health.

(c) who have been compelled to retire from service before 10 years by reason of abolition of post

Rule 7 makes provision for gratuity to the servants of the Corporation who have more than 10 years' service but are dismissed by reason of any cause other than misconduct. The petitioner is claiming gratuity for the period he served as Hammerman, i. e., from t O‑8‑64 to 9‑4‑70 (5 years and 8 months) and his case is not covered by the Gratuity Rules of 1968. Under the agreement dated 15‑4‑1971, these Rules were amended. The order passed by the R T. C. in this connection (copy Exh. R‑9) reads as follows:‑‑

"P. R. T. C. considered the question of amendment of rules 4 (c), 5, 6 and 9 (c) of Gratuity Rules during the course of execution of agreement with 1... O. S. Union on 15‑4‑1971, and decided in circulation that period of ten years appearing in these rules be read as 5 years . . . . . . . . . . "

In this very order, it is stated that the above decision would be operative from the date of agreement, i..e. 15-4-1971. This agreement is therefore not attracted to the case of the petitioner. For the foregoing reasons, the petition is dismissed.

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