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(a)

West Pakistan

---S. O. 12(1)-Retirement-A form of termination of service-Needs one month's notice-Employee of Road Transport Corporation-- Retired without notice-Order of Authority under Payment of Wages Act, 1936 granting one month's pay in lieu of notice upheld by Labour Court-Payment of Wages Act (IV of 1936), Ss. 15 & 17.

1980 P L C 1105 rel.

(b)

West Pakistan

---S. Os. 8 (1) & 9 read with Factories Act (XXV of 1934), Chap. . IV-A-Encashment of unavailed earned leave-Employee of Road Transport Corporation allowed encashment of entire leave due . by practice and usage prior to promulgation of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 Such encashment benefit more favourable. than that admissible. under Ordinance and -Chapter IV-A of Factories -Act, 1934-Protected under S. O. 9-Employet, held, entitled to such encashment on retirement.

1976PLC489and 1979PLC7rel.

R. M. Mushtaq for Appellants.

Amanullah Qureshi for Respondent.

This is appeal moved by S.R.T.C. under section 17 of Payment of Wages Act.

2 Parties were agreed on facts that respondent Abdul Rehman was permanent Traffic Assistant in S.R.T.C. and that he was retired with effect from 26-3-1980. It is also admitted that the respondent was never allowed to leave encashment during his service.

3. In his application under section 15 of said Act moved before the Authority the respondent claimed from appellant S.R.T.C. Rs. 622 as notice pay and Rs. 5,122 as arrears of leave encashment which according to the respondent is admissible in S.R.T.C., and such right was recognized under section 12(4) of the Standing Orders Ordinance. It was added that the employees whose services were terminated recently were paid leave encashment.

4. The application was opposed by the appellant who in his written statement contended that the respondent was governed under Road Transport Workers Ordinance and the rules framed by S.R.T.C. Claim of the respondent was denied.

5. Learned Authority framed issues on the points whether the respondent was entitled to notice pay and whether he had balance of earned leave on full pay and half pay at-his credit and if the same should be encashed.

6. After recording evidence of parties and hearing them learned Authority passed the impugned order dated 30-11-1981. He held that the respondent being employee of 1949 was entitled to be governed by these provisions of the law prevalent in S.R.T.C. before the promulgation of Standing Orders Ordinance, 1968, which were more favourable to him as compared to the provisions contained by Standing Orders Ordinance and that the respondent was entitled to accumulation and encashment of earned leave on full pay and on half pay and so also the medical leave. The Authority found calculation made in statement Exh. P/3 to be correct. After holding as the Authority accepted application of the respondent allowing him Rs. 286 as encashment of leave for 10 days on full pay and Rs. 5,471.50 as encashment of leave for 374 days on half pay and Rs. 622 as notice pay. Respondent was also allowed Rs. 101 as costs. Said order dated 30-11-1981 passed by the Authority has been assailed in present appeal.

7. 1 have heard Mr. R. M. Mushtaq for the appellants and .Mr. Amanullah Qureshi for the respondent.

8. Admittedly the respondent was retired from service of S.R.T.C. with effect from 26-3-1980 under order copy Exh. P/l, which does not show if respondent was allowed any notice pay.- Retirement is one of the forms of termination of service, as held in 1980 P L 61105. Hence-,services of the respondent appear to have been terminated by way of retirement under S.O. 12(1). Consequently appellant had to pay to the respondent one month's wages because no notice as required by S.O. 12(1) was given to the respondent before his retirement I therefore, maintain order of the Authority about payment of notice pay of Rs. 622 to the respondent.

9. Respondent filed with his application under section 15 of said Act a statement Exh. P/3 showing that annual leave for 10 days full pay and for 374. days on half pay was at his credit. In his deposition respondent stated that he joined S.R.T.C. service in 1949 and was retired on 26-3-1980 and that when he retired his earned leave on full pay and half pay was due to him as per leave register copy Exh. P/2. Respondent also examined Muhammad Bashiruddin who was Accounts Officers in S.R.T.C. He produced attested copy Exh. P/9 of page 285 from leave register maintained by the S.R.T.-C. in respect of the respondent. Copy Exh. P/9 of leave register shows that when the respondent retired he had at his credit 10 days leave on full pay and 374 days of leave an half pay and 2 days of medical leave. This evidence was not rebutted. Appellant's witness Arz Mohammad Divisional Manager S.R.T.C. did not state if leave on full pay for 10 days and leave on half pay for 374 days was not due to the respondent. He was of the view that such leave if due lapses on retirement. I, therefore, hold that when respondent retired the leave as given in statement Exh. P/3 was due to him.

10. Mr. R. M. Mushtaq cited decision of this Court in appeal No.-9/81 decided on 9-8-1981. with title S.R.T.C. v. Shamsuddin Qureshi. In cited case this Court had held that as per section 49-B of Factories Act the unavailed leave cannot be accumulated beyond 28 days and that the sick leave provided by section 49-H of Factories Act cannot be accumu lated if not availed of. Reference to sections 49-B and 49-H .under Chapter IV-A of Factories Act, 1934 became necessary in view of S.O. 8 clause (1) of S.O. 8 says that annual holidays, festival holidays, casual leave and sick, leave with pay shall be allowed as provided in Chapter IV-A of Factories Act.. Mr. Amanullah Qureshi however argued that the respond ent had come before the Authority relying on sub-clause (b) of clause (1) of S.O. 8 which says that other holidays shall be allowed in accordance with the law, contract custom and usage Mr. Amanullah Qureshi .argued that before coming into force of Standing Orders Ordinance, 1968 the employees of Transport Service were entitled to encashment of the leave at their credit and that such usage was protected by section 9 of the Standing Orders Ordinance, 1968. The respondent successfully brought on record the evidence to show that as per practice and usage the employees of transport service were allowed encashment of their entire leave due, Respondent relied on evidence of Sadaqat Hussain who was Senior Clerk in S.R T.C. and was maintaining leave record since 1977. He categori cally stated that drivers and conductors if appointed before 1961 were allowed earned leave for .15 days with full pay with - total accumulation up to 90 days and they were allowed earned leave on half pay for 10 days and medical leave for 15 days with full pay. In respect of -the medical leave he said in cross that there was no usage or custom in S.R.T.C. for encashment of medical leave. Muhammad Bashiruddin Accounts Officer S.R.T.C., produced page 330. of leave register Exh. P/10 in respect of Zaheer Ahmad who was declared medically unfit and whose services were terminated on that ground Muhammad Bashiruddin added that Zaheer Ahmad was paid encashment of earned leave for 70 days and for 200 days at .half pay. He stated in cross in reply to question of Mr. R. M. Mushtaq that the medical leave was never encashed. Mr. R.M. Mushtaq did not choose to put suggestion to Mohammad Ba shiruddin in cross .that the earned leave could not be accumulated beyond a particular limit and that it could not be encashed Sadaqat Hussain deposed that drivers, Abdul Rehman, Arbab Ali, Zaheer Ahmad, .Raheem Din, Ghulam Hussain Ghulam Akbar, Muhammad Yasin and Saiful Khan were paid payment in lieu of balance lease at their credit. He however stated that balance of earned leave would be brought in the next year if the accumulation was upto, 90 days with full pay. Appellants witness Arz Muhammad deposed that no worker has been paid encashment of leave on account of accumulated half pay of earned leave. He denied that if Zaheer Ahmad was paid earned leave on half pay for 200 days, although such order copy Exh. P/8 has been brought in evidence. Arz Muhammad said that the order in respect of Zaheer Ahmad was subsequently cancelled by him. He admitted in cross that lie had not produced order cancelling the order Exh. P/8 in respect of Zaheer Ahmad. Arz Muhammad admitted that Sadaqat Hussain Was Clerk in S.R.T.C. office and he was maintaining leave record. Respond ent produced copy Exh. P/6 of an order granting 90 days leave on full pay after retirement of Shakuruddin Senior Clerk S.R.T C. He produced copy Exh. P/6 of order granting earned leave on full pay for 15 days and on half pay for 158 days to Muhammad Yasin ex-driver S R T.C who had not availed such leave within service. In this way the respondent has established that there was custom or usage in S.R.T.C. by which unavailed earned leave on full pay for not more than 90 days could he encashed while there was no limit on encashment of unavailed leave on half pay. This custom or usage is protected by section 9 of Standing Orders Ordinance if it is more favour able to the workman. On this point Mr. Amanullah cited 1976 P L C 489 and 1979 P L C 7. In these cases Sind Labour Appellate Tribunal held that if the usage was established then provisions of section 9 of Standing Orders Ordinance were attached. I therefore hold that irrespective of the provisions contained by S. O. Ordinance including S. O. 8 and Chapter IV-A of Factories Act the respondent was entitled to encashment of his unavailed leave as given in statement Exh. P/3. Such point was no raised in Appeal No. 9/81 decided by this court on 9-8-1981.

11. In view of my above discussion I maintain order of the Authority except that the medical leave cannot be encashed if unavailed. Accordingly this appeal stands dismissed.

Appeal dismissed.

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