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Writ Petition No. 1791 of 1982, decided on 11th December, 1982

(a) Provisional Constitution Order (1 of 1981)‑---

-‑‑‑Art. 9‑Writ jurisdiction‑Regulations of Establishment provid ing superannuation age for supervisory staff as 65 years and for other employees as 55 years‑Retirement order of Incharge Cleaning and Forwarding made after attaining age of 55 years on presumption that he was not of supervisory category challenged before Labour Court‑Labour Court dismissing grievance petition holding that he being a workman (not supervisory staff) was rightly retired after attaining age of superannuation of 55 years‑On appeal Labour Appellate Tribunal finding that he being Incharge Cleaning and Forwarding his appointment was that of supervision within meaning of Service Regulations of the Establishment and thus could be retired after attaining age of 65 years‑Order of Labour Appellate Tribunal challenged before High Court in writ jurisdiction on grounds that respondent (employee) was a workman and as such was rightly retired after attaining age of 55 years ‑ Labour Appel late Tribunal, held, had recorded a finding of fact to the effect that respondent (employee) was of supervisory category and covered by definition of workman under S. 2 (xxviii) of Industrial Relations Ordinance, 1969, no exception could be taken to the findings of Labour Appellate Tribunal‑Interference with direction of Labour Appellate Tribunal for re‑instatement of respondent (employee) till attaining superannuation age of 65 years, in circumstances, refused by High Court in exercise of writ jurisdiction‑Industrial Relations Ordinance (XXIII of 1969), Ss. 2 (xxviii) 25‑A & 37.

(b) Industrial Relations Ordinance (XXIII of 1969)‑---

‑‑‑‑ Ss. 2 (xxviv) & 25‑A ‑‑ "Settlement" ‑ Service Regulations framed by employer establishment‑Cannot be treated as settlement within meaning of S. 25‑A.

Atta Muhammad Raja v. Duncan Stratton & Co. Ltd. 1976 P L C 643 and Workmen of Tandojam and Its Feeders v. Director, Agricultural Engineer, Sind and 8 others P L D 1981 Kar. 47 rel.

(c) Industrial Relations Ordinance (XXIII of 1969)‑--

--‑‑S.25‑A (6) [as existing prior to promulgation of Labour Laws (Amendment) Ordinance (IX of 1977) (1st February, 1977)] Termination of service by retirement‑Grievance petition, held, maintainable against retirement order passed before deletion of sub section (6)‑Subsection (6), held, independent of subsections (1) requir ing that grievance petition was maintainable only to enforce a right guaranteed under law, settlement or award‑Retirement order passed before promulgation of Labour Laws (Amendment) Ordinance, 1977 when subsection (6) held field‑Grievance petition, held, maintainable though retirement was not a guaranteed right.

Arif Hussain Shah v. Operative Director, Administration Electric Equipment Manufacturing Co. Ltd. and another P L D 1979 Lab. 603 and Messrs Crescent Sugar Mills Ltd. v. Haji Muhammad and another P L D 1976 Lah.1176 rel.

Malik Bashir Ahmad for Petitioner.

Respondent No. 2 in person.

Date of hearing : 14th November, 1982..

This Constitutional Petition impugns the order dated 28th April, 1982 passed by the learned Chairman, Punjab Labour Appellate Tribunal, Lahore (respondent No. 1) whereby the appeal filed by Rafiq Ahmad, respondent No. 2 against the petitioners calling in question the order passed by Punjab Labour Court No. 2 was accepted and the order of the Labour Court dismissing the petition of respondent No. 2 under section 25‑A of the Industrial Relations Ordinance was set aside and re‑instatement of respondent No. 2 with back benefits was directed.

2. Rafiq Ahmad Rana respondent No. 2 after his retirement from Pakistan Railways was employed by Pakistan Cycle Industrial Co‑opera tive Society Ltd. Shahdara, as Incharge Clearing and Forwarding on 25th April, 1974 vide appointment letter Exh. A. I. Subsequently, Rafiq Ahmad Rana, completed his period of probation satisfactorily and was thus confirmed in his post with effect from 23rd August, 1974 within initial salary of Rs. 330 per mensem plus usual allowances as already admissible in the relevant time scale of Rs. 225‑1,5‑375. It was directed that the service would be governed by the Society's approved employment regula tions. On 23rd September, 1976, however, the services of respondent No. 2 were terminated vide letter Annexure 3 and it was intimated to respondent No. 2 in the said letter that the age of superannuation of work man being 55 years and as be had already attained the age of 58 years, the management was constrained to retire him from service.

3. Respondent No. 2 challenged his termination by retirement before Labour Court No. 2. Lahore by means of a petition under section 25‑A of the Industrial Relations Ordinance, 1969. The Labour Court dismissed , the petition filed by respondent No. 2 on 16th March, 1980. He filed an' appeal before the learned Labour Appellate Tribunal which was accepted through the impugned order.

4. It is noteworthy that the Labour Court dismissed the application of respondent No. 2 holding that he being a workman was rightly retired after attaining the age of superannuation of 55 years. The learned Tribunal however, in the impugned order found that since the petitioner happened to be Incharge Clearing and Forwarding, his appointment was that of a supervisor within the meaning of the service regulation of the employer and therefore, he could be retired after his attaining the age of 65 years. The petitioners, in the under consideration . constitutional petition, have urged that respondent No. 2 was a workman and, therefore, he was rightly retired and that otherwise also he had no legal grievance against the petitioners to be redressed under section 25‑A of the Industrial Relations Ordi nance inasmuch as there was no right guaranteed or secured to him by or under any law or any award or settlement in regard to age of superannua tion. It has also been urged that if the petitioner was not a workman as alleged by him, then he had no locus standi to file an application under section 25‑A, ibid.

5. Regarding the last ground‑ about the incompetency of the petition under section 25‑A on account of. respondent being not a workman, it may be observed, that this plea is without any substance because it has to be seen with reference to the definition of the workman as contained in clause (xxviii) of section 2 of the Industrial Relations Ordinance as to whether the petitioner falls within the category of worker or workman. Seen in the light of this definition, respondent No. 2 who was employed in the time scale of Rs. 225‑15‑375 with an initial salary of Rs. 330 as Incharge Clearing and Forwarding and performed clerical duties was definitely a workman. It has to be seen that employment as a supervisor is also included in the definition of workman as contained in clause (xxviii) of section 2, supra.

6. Rule 5 (b) of Employment Regulations' of the Pakistan Cycles Industrial Co‑operative Society Ltd. provides that age of recruitment and superannuation of an employees is fixed as under :‑

(i) Recruitment age == 20 to 35 years.

(ii) Superannuation age. == (a) 55 years of employees

covered under the term workman'.

(b) 65 years for supervisory

staff and officers.

7. The learned Appellate Tribunal has recorded a finding of fact to the effect that respondent No. 2 being Incharge Clearing and Forwarding was member of supervisory staff of the petitioner society. This finding does not suffer from any infirmity, because for purpose of employment regulations, the petitioner society created two categories of its employees, i. e. workmen and supervisory staff including officers. The‑petitioner who was appointed as Incharge Clearing and Forwarding was certainly not a ,t workman for the purpose of employment regulations on account of being incharge of a branch and thus his appointment fell within the category of supervisory staff within the meaning of rule 5 (b). Respondent No. 2, therefore, under the service regulations of the petitioner society could be retired on attaining the age of superannuation i.e. on attaining the age of 65 years. It has also to be seen that as a matter of fact the said respon dent (respondent No. 2) had already attained the age of 55 years when he was retired from Pakistan Railways and before be was employed by the petitioners. No exception can thus be taken to the findings recorded in this behalf by the learned Appellate Tribunal.

8. It has, however, been vehemently argued on behalf of the petitioners that under section 25‑A of the Industrial Relations Ordinance, 1969, redress of that grievance can be sought only through .the Labour Court in respect of which the workman has a right ' guaranteed or secured to him by or under any law or any award a settlement. It is urged that under the Standing Orders Ordinance or under any other law for the time being in force, there is no provision regarding age of superannuation of workmen and similarly, there is no award in favour of the petitioner in this behalf. It is further argued that the employment regulations governing the terms and conditions of service of respondent No. 2 and other workmen employed by the peti tioners do not constitute settlement' within the meaning of section 25‑A because the settlement contemplated by section 25‑A is the one which is arrived at between the employer and the C. B. A. as a result of conciliation proceedings and also includes an agreement between an employer and his workmen and a copy whereof has been sent to the Provincial Government, the conciliatory and such other persons as may have been prescribed. In Atta Muhammad Raja v. Duncan Stratton Co. Ltd. (1976 P L C 643) it was held that a contract of appointment executed by an employer with an individual employee does not fall within the definition of settlement'. Similarly, in the Workmen of Tandojam and Its Feeders v. Director Agricultural Engineer, Sind and 8 others (P L D 1981 Kar. 47), the learned Labour Appellate Tribunal, Sind held that agreement arrived at between workers and employer not through the conciliation and neither drawn up in prescribed form nor copies sent to prescribed authorities could not be treated as settlement' enforceable under section 34.

9. The argument advanced by the learned counsel for the peti tioners in this behalf appears to have substance and the employment regulations of the petitioner's society cannot, therefore, be treated as settlement' within the meaning of section 25‑A of the Industrial Relations Ordinance.

10. We cannot, however, lose sight of the fact that the services of respondent No. 2 were terminated on 23rd September, 1976 and he filed an application before the Labour Court on 25th October, 1976. Subsection (6) of section 25‑A of the Industrial Relations Ordinance, 1969 by then held the field because this subsection was omitted through the Labour Laws (Amendment) Ordinance, 1977 which was promulga ted through Gazette of Pakistan, Extraordinary, Part 1 dated 1st February 1977. Needless to add that this Ordinance was subsequently enacted a an Act of Parliament, viz, the Labour Laws (Amendment) Act. 1977. Evidently till such time as subsection (6) of section 25‑A held the field, termination of employment of workmen could be challenged under section 25‑A notwithstanding anything contained in subsections (1) to (4) of section 25‑A. Under subsection (6) of section 25‑A all type of terminations of employment, could be challenged within a period of two months of the commencement of the Industrial Relations (Amend ment) Ordinance, 1977, or the termination of employment whichever was later. Subsection (7) of section 25‑A further provided that where a matter was taken to the Labour Court under subsection (6), the Labour Court could give its decision in respect of that matte C in manner laid down in subsections (4) and (5). Subsection (4) . of section 25‑A contains provisions of directory nature to the effect) that by such and such period, Labour Court would decide a matter brought before it under section 25‑A. Subsection (5), how ever, provides that in adjudicating and determining a grievance, the Labour Court shall go into all facts of the case and pass such order as tray be just and proper in the circumstances of, the case. It, there fore, clearly means that independent of the provisions of subsection (I) of section 25‑A' to the effect that‑ a worker could take only that grie vance under section 25‑A to the Labour Court in respect of which he had a right guaranteed or secured to him by or under any law or any award or settlement, a terminated worker till the promulgation of Labour Laws (Amendment) Ordinance, 1977 (1st February, 1977) could take the matter directly to a Labour Court in respect of his termination and in case of such matter, Labour Court could competently pass such orders as might be just and proper in the circumstances of the case. In Arif Hussain Shah v. Operative Director, Administration Electric Equip ment Manufacturing Co. Ltd. and another (P L D1979 Lah. 603) it was held that cases of termination of employment of workmen as a result of retrenchment, dismissal, discharge, lay off, lock out, or otherwise were governed by subsection (6) of section 25‑A while grievances other than termination were to be dealt under subsections (1‑4) of section 25‑A. In M/s. Crescent Sugar Mill Ltd. v. Haji Muhammad and another (P L D 1976 Lah. 1176) it was held that in a case of termination of service provisions of subsections (1‑4) of section 25‑A were not applicable and all cases of termination could be taken to Labour Court within two months of the termination of service.

11. The upshot of the above discussion is that the case o respondent No. 2 being that of termination could validly be taken to the Labour Court under subsection (6) of section 25‑A of the Industrial Relations Ordinance, independent of the provisions of subsections (l‑4) of section 25‑A, ibid and in such a case, the Labour Court was required to go into all the facts of the case and pass such orders as might be considered just and proper in the circumstances of the case. So far as the circumstances of this case are concerned, this is a common ground between the parties that respondent No. 2 was confirmed vide letter Annexure 'A/2' and it was clearly provided in this letter that his services would be governed by the Society's Approved ‑ Employment Regulations. Rule 5 (2) of the said regulations provided 65 years as age of superannuation for supervisory staff. Respondent No. 2 has rightly been held to be member of the supervisory staff by the learned Appel late Tribunal. He could, therefore, be retired on attaining the age of 65 years and thus his retirement on attaining the age of 55 or 58 years is wrongful and not just and proper.

12. In this view of the matter, no exception can be taken to the conclusion arrived at by the learned Appellate Tribunal whereby res pondent No. 2 has been directed to be re‑instated in service with back benefits. Of course if in the meantime, respondent No. 2 has attained the age of superannuation of 65 years he would not be put back to duty and would be entitled only to back benefits till attaining the age of superannuation.

18. The constitutional petition, in, the above circumstances, is dis missed with no orders as to costs.

A. E. Petition dismissed.

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