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Appeals Nos. LHR‑262 and 264 of 1984, decided on 12th November. 1984.
(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑
‑‑ S. 1 (4) (c) and S. O.‑Maple Leaf Cement Factory ‑ Neither run under authority of Government nor having statutory rules of service for its employees‑Governed by Ordinance ‑ Provision of condition of retirement without assigning any reason on completing 25 years service‑Contrary to S. O. 12(3)‑Not legal and has no binding force.
‑‑‑ S. 25‑A‑Reinstatement‑Back benefits‑Petitioner has to assert and prove fact that he remained unemployed during intervening period‑Petitioner not stating before Labour Court that he remained unemployed‑Back benefits, in circumstances, held, rightly disal lowed.
Messrs Muhammad Azam and Naeem Sultan Butt for Appellant.
Syed Moin‑ud‑Din for Respondent.
Date of hearing : 7th November, 1984.
The two appeals captioned above arise from the decision; dated 24th March, 1984 recorded by the learned Presiding Officer, Punjab Labour Court No. 2, Lahore, directing the reinstatement of Muhammad Shall (hereinafter to be called as the respondent) without back benefits. He has in his appeal claimed back benefits, whereas Messrs Maple Leaf Cement Factory Limited (hereinafter to be described as the appellant) has in its appeal challenged the direction of reinstatement of the respon dent. Since both the appeals arise from the same decision, they are being disposed of together through this single judgment.
2. The respondent was originally employed as an Assistant. Vide order copy Exh. P. 1, dated 1st July, 1980 he was promoted as Junior Officer with the condition that on completing 25 years' service, he would be retired without assigning any reason. Vide order copy Exh. P. 2 he was retired on 10th January, 1982. The learned lower Court has held and rightly so, that the order of retirement is hit by Standing Order 12(3), of the Standing Orders Ordinance, 1968. This is not the case of the appellant that Standing Orders Ordinance, .1968 is not applicable. Section 1(4)(c) of the said Ordinance says that where an establishment is being run by or under the authority of the Government and it has its own statutory rules of service, Standing Orders Ordinance, 1968 would not apply. This is not the case of the appellant that it is being run under the authority of the Government, nor it has been pleaded, proved or argued that the appellant has its own statutory rules of service. Condition No. 3 given in Exh. P. 1, being against the provisions of Standing Order 12(3) of Standing Orders Ordinance, 1968, is not legal and thus has no binding force. The respondent, therefore, was illegally retired.
3. It has been argued that the respondent is not a workman. R. W. 1 who is the witness of the appellant has supported the respondent. He has said that the respondent is officer by name only but has no managerial functions to perform. He has also said that the respondent checked the work of others and also worked with his own hands and as well as other officers are workers and do work with their own hands. He was not got declared hostile by the appellant, therefore, the latter is bound by his state ment. Thus, the learned lower Court has rightly adjudged the respondent as a workman. Not merely the designation but actual duties are relevant to come to a correct conclusion if an employee is or is not covered by the definition of workman. According to the evidence, the respondent is a workman both under section 2(xxviii) of the Industrial Relations Ordinance, 1969 and section 2(i) of Standing Orders Ordinance, 1968.
4. So far as cross‑appeal of the respondent is concerned, he has been rightly disallowed back benefits. He did not say in his statement before the learned lower Court that he remained unemployed during the period of his retirement. In ordinary civil cases the defendant knows what is due to him from the plaintiff and in labour cases the matter is quite different. The employer has no source to know if his employee has remained gainfully employed elsewhere after his removal from service, so the employee has to assert and prove this fact.
5. As a result, both the appeals fail and are hereby dismissed.
A. E.
Appeal dismissed.
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