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(a)

West Pakistan

----S. O. 12 (1) -- Retirement by management on completion of 25 years' service-One of forms of termination--Workmen of Road Transport Corporation retired after completion of 25 years' service- No statutory rules governing same .produced-S.O. 12 (1), in circum stances, held, applicable and workman,, held, entitled to one month's wages in absence of notice.

1980PLC1105rel.

(b) Payment of Wages Act (IV of 1936)----

----S. 2 and Employees' Cost of Living (Relief) Act, 1973 (1 of 1974), S. 2 (e)- Wa8es - Includes dearness allowance or Cost of living allowance-Such wages countable for purpose of gratuity on retirement-West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. O. 12 (6).

R. M. Mushtaq for Appellants.

Wasiullah Qureshi for Respondent.

Sind Road Transport Corporation (S. R. T. C. ) 'has filed this appeal under section 17 of Payment of Wages Act.

Admittedly respondent Shamsuddin was conductor in S. R. T. C. in May 1954 and he was retired from such service under an order P-1 dated 10-3-1980. His retirement was "consequent upon completion of 25 years of service", as per order copy P-1. Admittedly he had put in service for 26 years before being retired.

In his application under section IS of Payment of Wages Act the respondent but his claim against the appellant as follows:

(i) wages front 10-3-i-980 to 30-9-1980 at rate of Rs. 703 p.m. ;

(ii) wages in lieu of unavailed leave for 105 days on full pay and for 401 days, on half pay at rate of Rs. 658 p.m. ;

(iii) gratuity to be calculated at rate of 20 days per year for 26 years; on basis of pay being Rs. 530 p.m. ;

(iv) Rs. 703 as notice pay. ,

The case was contested by the appellant who in the written statement refuted aforesaid claims. Last pay of the respondent was said to be Rs 410 p m.

Learned Authority framed, issues on maintainability and on merits and under the order dated 8-6-1981 granted claim in respect of items Nos. (ii), (iii) and (iv) but not in respect of item No. (i). The order has ,,been challenged in present appeal by the S. R. T. C. and its officers.

I have heard Mr. R. M. Mushtaq counsel for the appellants and Mr. Wasiuliah counsel for the respondent.

In respect of the notice pay Mr. R. M. Mushtaq, argued that it was not admissible because the respondent was retired after completion of service for over 25 years. He argued that it was privilege of the management to retire an employee_: He agreed with the view that retirement was one of the forms of termination of Service. . Such a . view is also taken in 1980 P L C 1105. It appears that services of the respondent were terminated way of retirement under S. O. 12 (1). Mr. R. M. Mushtaq, could nod cite any provision other than S. O. 12, (1) by which respondent was retied on 10-3-1980. Order copy . P.1 shows that the respondent was retired under Regulation 19 of S. R. T. C. Service (Retirement) Rules. These were not produced and hence it cannot said if the same are statutory rules or otherwise. I, therefore, hold the retirement of the respondent was under S. O. 12 (1) arid consequently the appellant was bound to pay to the respondent one month's wages as n notice contemplated by S. O. 12 (1) was given.

In respect of gratuity which is payable under S. O. 12 (6) the appellant has no objection. Mr. Wasiullah argued that the respondent was entitled to be given the gratuity at the rate of 30 days' wages for every completed 8 years of service, as per gratuity rules copy Exh. D. It is not shown if these rules are framed in pursuance of any statute and they are not statutory rules to exclude application of Standing Orders Ordi nance. I, therefore, hold that S. O. 12 (6) would apply. Consequently the respondent was entitled to get gratuity equal to his wages for 520 days.

The Authority held pay of the respondent to be Rs. 623 p. m. and I do not find reasons to take a different view in view of the photo copies of wage register produced in the 'case: The term "wages" given in the Payment of Wages Act includes any additional remuneration paid to a worker. Section 2 (e) of Employees Cost of Living (Relief) Act, 1973 shows that wages mean remuneration for service and they include an Dearness Allowance or Cost of Living Allowance. The payment‑sheets B Exhs. A and B show that the respondent was drawing Rs. 623 p. in. I hold accordingly.

In respect of unavailed annual leave Mr. R. M. Mushtaq referred to S. O. 8 and to section 49‑B of Factories Act. Mr. Wasiullah argued that Factories Act would not apply. because the respondent was not worker under said Act. Wording of S. O. 8 shows that even a person covered by the definition of worker, given in Standing Orders, Ordinance would be governed by Chapter IV‑A of the Factories Act in respect of his annual leave. Assuming that the respondent did not avail of the annual. holidays during his total service period of 26 years the question arises as to whether such leave can be accumulated for an unlimited period. The reply is fur nished by subsection (2) of section 49‑B of Factories Act. The unavailed leave cannot be accumulated beyond 28 days. Respondent was entitled to wages for 28 days and this would amount to Rs. 618.

Sick leave is provided by section 49‑H of Factories Act but it does not provide if 4uch leave can be .accumulated if not availed of. Hence the respondent cannot be given any amount in respect of unavailed sick leave.

Mr. R. M. Mushtaq argued that the respondent was not entitled to get more than what he had demanded in para. 3 of his application under section 15 of Payment of Wages Act. If the law requires the respondent: to be paid an amount more than that demanded by him 'then we have; to follow the law. If the law allows more than the amount claimed then the amount payable under the law will have to be paid to the respondent notwithstanding claim for lesser amount.

Consequently I maintain order of the Authority in respect of notice pay, and modify order of the Authority in respect of gratuity amount and m respect of unavailed annual leave. The respondent is entitled to get Rs. 10,798 as gratuity on the basis of his pay being Rs. 723 p. m. He is also allowed an amount of Rs. 618 in lieu of unavailed leave. Claim of the respondent beyond this appears unwarranted by law and is therefore, disallowed and to that extent this appeal is accepted.

Appeal accepted.

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