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Appeals Nos. QSA‑184 and FD‑277 of 1984, decided on 20th November, 1984.

‑‑‑ Superannuation age ‑ Contradictory provisions of law--One favourable to employee to be followed ‑ Punjab Road Transport Board employee case‑Rules of 1959 providing superannuation age as 60 years‑Regulation mentioning same as 55 years but rule not amended‑ Superannuation age of 60 years, held, effective.

1984 P L C 953 rel.

‑‑ S. 25‑A‑Reinstatement‑Back benefits---Petitioner not stating to have remained unemployed during intervening period‑Back benefits disallowed.

‑‑‑ Ss. 25‑A & 38(3) ‑ Petitioner before Labour Court ‑Whether or not a workman ‑ No plea taken by respondent (Employer) that petitioner was not a workman ‑ Labour Court non‑suiting petitioner for reason that he being a security guard was not a workman‑Labour Court if wanted to take up objection of jurisdiction on such point, held, should have invited evidence before deciding same‑Order of Labour Court, in circum stances, set aside by Appellate Tribunal and case remanded for redecision after opportunity of evidence to parties.

Nazir Ahmad Naz for Appellants.

Mahboob Alam for Respondent.

Date of hearing : 17th November, 1984.

The two appeals captioned above arise from the decision, dated 20th March, 1984 passed by the learned Presiding Officer, Punjab Labour Court No. 5, Faisalabad, whereby the grievance petition of Ghulam Sarwar was dismissed and the petition of Muhammad Din was accepted without back benefits. P. R. T. B. (hereinafter to be called as respondent) has in its appeal challenged the reinstatement of Muhammad Din (hereinafter to be described as appellant No. 2). Appellant No. 2 has in his appeal claimed back benefits and Ghulam Sarwar (hereinafter to be called appellant No. 1) has in his appeal prayed for his reinstatement in service. As common question of facts and law are involved, both the appeals are being disposed of together through this single judgment.

2. The appellants were retired by the respondent on completing the age of 55 years applying Regulation No. 19 of 1965 Regulations. The learned lower Court has held that the age of superannuation is 60 years according to rule 33.1 of 1959 Rules as amended on 4th February, 1977. Ghulam Sarwar has been non‑suited for the reason that he being security guard is not a workman.

3. So far as age of superannuation of P. R. T. B.'s employees is concerned, I have already held in a case reported in 1984 P L C 953 that rule 33.1 of 1959 Rules, as amended on 4th February, 1977 is applicable according to which, the age of superannuation is 60 years and that Regu lation No. 19 of 1965 Regulations has no bearing on the case. Both the rules have been at length discussed in the said ruling. Notification No. SOR‑1 (S & G A D)‑4‑1‑72, dated 9th December, 1976 was adopted by the Board, which said that the age of superannuation for all employees of the Board would be 60 years. The rule has not so far been amended, so the same is effective uptil now. In its 89th meeting held in June, 1980 Regulation No. 19 was noted down but rule 33.1 was not amended. In para. 3 it was no doubt said that Regulations of 1965 would apply to the workers but since rule 33.1 was not amended, it remained intact. Regulations of 1965 do apply but since rule 33.1 was amended in 1977 fixing the age of retirement of all the employees of the Board at 60 years, they ceased to have any effect. Needless to say that where there are two contradictory provisions of law, the one that favours the employee is to be followed. The learned lower Court has, therefore, rightly applied rule 33.1. The appeal of the respondent, therefore, has no force.

4. So far as back benefits are concerned, Muhammad Din did not say that he remained unemployed after his retirement, so he was rightly disallowed post benefits. So the appeal of Muhammad Din against the respondent and the appeal of the respondent against him, both are dismissed.

5. So far as Ghulam Sarwar, appellant No. 1, is concerned, no plea was taken by the respondent that he was not a workman. Rather it was admitted in the written statement that he was a permanent workman. If the Court wanted to take up the objection of jurisdiction, it should have invited evidence before deciding the points. Since there was no objection of the respondent in this respect, appellant No. 2 and the respondent both did not produce any evidence.

6. As a result, the appeal so far as it relates to Ghulam Sarwar is accepted and his petition is remanded for re-decision after giving opportunity to him and the respondent to adduce evidence on the point of workman. The learned representative of the appellants has made reference to Amending Order XVI of 1984, whereby section 1 of the Industrial Relations Ordinance, 1969 has been further amended but as the case has been remanded, the point may be stressed before the‑ learned lower Court.

A. E.

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