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Application No. 398 of 1976, decided on 28th March, 1978.

‑‑‑S. 25‑A‑‑Grievance petition against pre mature removal from service‑‑Employee claiming benefits from date of such removal to date of superannuation‑‑Employee's age having passed superannuation at time of such removal on his admission‑‑Statement of staff salary, however, showing employee's age less than statutory age for retirement at time of removal‑‑Such employee, held, was entitled to continue his job for another 16 months to complete superannuation age of 60 years.

‑‑‑S. 25‑A‑‑Grievance petition‑‑Premature removal from service‑ Retirement of workman in accordance with terms of settlement between union of workmen and employer‑‑Such settlement between union and employer being binding on workman, even if such workman was not member of such union, held, removal from employment in accordance with terms of settlement was justified even before his attaining age of superannuation in circumstances.

‑‑‑S. 25‑A‑‑Grievance petition‑‑Workman receiving his dues and ex gratis amount and also participating in farewell party as well as receiving gifts from staff at time of retirement‑‑Such workman, held, was estopped from bringing grievance petition against employer on plea of premature retirement from service ‑‑Estoppel.

Wasi Ahmed for Applicant. S.M. Yakoob for Respondent.

The applicant has filed an application under section 25‑A of I.R.O., 1969 against the respondents praying that it should be adjudicated that he has been illegally removed from service at the premature stage although he is legally entitled to continue in service and derive the benefits upto June, 1977, the completion of age of superannuation. He has also prayed for full wages and benefits from 15‑2‑1976 till 30‑6‑1977.

The facts of the case in brief are that the applicant was a permanent worker of the establishment of the respondents. He was legally entitled to continue in service till the completion of 60 years of age, the prescribed age of superannuation according to the provisions of the Standing Orders Ordinance, 1968. The applicant was not to retire from service of the respondents before this date unless declared medically unfit or otherwise removed from the service for some misconduct. The Government has introduced a new benefits scheme known as Employees Old Age Benefits, which is to be enforced w.e.f. July, 1976, but the respondents in order to deprive the applicant from the recurring benefits accrued from the said new scheme and also in furtherance of malice retired the applicant w.e.f. 15‑2‑1976 by virtue of notice, dated 13‑2‑1976 at premature stage and without allowing him to complete the age of superannuation. The applicant has not been paid the full and final legal dues. The respondents also acted illegally and discriminatory when they retained in service one Muhammad Ali Dharmasey. Therefore, the applicant, after giving the grievance notice to the respondents, filed the above case.

The respondents contested the above case by filing their reply statement stating therein that the applicant, after having received full and final settlement of his dues after his retirement, cannot reopen his grievance against the respondents. In fact there remains no nexus of master and servant between the applicant and the respondents. That the retirement of the applicant has been done in accordance with the settlement, dated 11‑2‑1976 as the applicant had crossed the age of 58 years. Even otherwise the respondents have the right to retire the applicant. Therefore, none of the rights of the applicant under any law, settlement or award have been infringed. That the West Pakistan Shops and Establishments Ordinance is applicable to the Head Office of the respondents and as such this application, which is not maintainable, is liable to be dismissed.

The respondents have further stated in their reply statement that the applicant was employed as office superintendent at the head office of the respondents and he was retired on 13‑2‑1976 as the applicant himself admitted to be over 58 years of age, although according to the company's record the applicant was above 64 years of age at the time of his retirement. The settlement, dated 11‑2‑1976 prescribes the retirement age to be 56 years. The Employees Old Age Benefits Ordinance, 1977 provides pension under the Ordinance after a minimum of 15 years of insured service and, therefore, the benefits therein would accrue first in 1991 and, therefore, this Ordinance will not help the applicant. That the applicant, who was retired on 13‑2‑1976, collected his full and final settlement dues on 14‑2‑1976, but he was paid up to 15‑2‑1976 as a gesture of good will besides further ex gratis payment. The employment of Muhammad Ali Dharmasey, which was on contract basis due to his special knowledge and experience pertaining to the factory manufacturing process, cannot be compared with the routine job of the office superintendent performed by the applicant and the same being the discretion of the management cannot be questioned by the applicant. Therefore, the application of the applicant has no merit and is liable to be dismissed.

The applicant has examined himself while the respondents examined Hap Abdul Majid, the Deputy General Manager of the respondents.

I have heard the arguments of the representatives of the parties and perused the entire record and proceedings. The only point for determination is when the applicant was born and what was the age prescribed for his retirement

The applicant has not stated in his application nor in his evidence as to when he was born. He has also not summoned his application for the employment submitted to the respondents at the time of his seeking the employment as to show his actual age. He has not produced any document showing his actual age although burden of proof lay upon him. However, the respondents have attempted to show the age of the applicant by asking some questions in cross‑examination. The applicant has admitted in his cross‑examination that he passed his Matriculation Examination from Allahabad University, India, somewhere in 1937. But he has not produced his matriculation certificate. He has further admitted that he was 24 or 28 years old when he passed the Matriculation Examination he was retired from service on 15‑2‑1976. If I take his age with his own admission, it shows that he was 63 when he was retired from service. He has further admitted in his cross‑examination that he declared his age 56 years in 1968. He was retired on 15‑2‑1975. This shows that his age was 64 years at the time of his retirement. However, the learned representative of the applicant has relied upon the statement, the staff salary Exh.4.K, which shows that the applicant was 58 years in June, 1975. Therefore, the applicant was 58 years and 8 months old according to the respondents. Therefore, he has to continue his job for another 16 months to complete his superannuation age of 60 years. The respondents have not been able to show any law, settlement or award by which the applicant was to continue upto the age of 60 years. However, the respondents have stated that they retired the applicant as per clause 5 of the settlement, which is Annexure 'A' with the affidavit of Haji Abdul Majid. This settlement is between the union and the management and as such this is binding on the applicant as he is a workman, although he may not be a member of the union. Therefore, there was nothing wrong with the respondents' order retiring the applicant at the age of 58 years.

Besides the above finding I find that the applicant who had already taken his dues and also Rs.5,000 as ex gratis amount as per Exh.2.D, cannot bring his grievance against the respondents. In fact he has admitted in his cross‑examination that there was a farewell party after his retirement in which he had received gifts from the staff. This conduct of the applicant shows that he has probably been aggrieved as to why Muhammad Ali Dharmasey was employed by the respondents. If the management employ any technical man on contract basis after his retirement, this does not mean that the applicant should also be re‑employed.

In view of the above discussion I do not find any merits in the application of the applicant under section 25‑A of Industrial Relations Ordinance, 1969, which is accordingly dismissed.

A.A.

Petition dismissed.

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