1989 PLP 803 (PLC)

Above appeal is directed against the order dated 15‑8‑1988 passed by the Commissioner Workmen's Compensation and Authority under the Payment of Wages Act for Thatta and Dadu Districts at Hyderabad, by which the respondent was awarded the total amount of Rs.14,776 being the gratuity, unpaid portion of Employees fund and cost.

2. The brief facts giving rise to above appeal are that the respondent, filed an application under section 15 of Payment of Wages Act before the learned Authority claiming therein the amount of Provident Fund, gratuity and 10 times Compensation thereon. The assertion of respondent is that he was employed in the Factory/Wrokshop of the Appellant on 1‑6‑1959 and resigned on 18‑2‑1981. The respondent has pleaded that the terms and conditions of his service are governed under the Provisions of Industrial and Commercial Employment (Standing Orders) Ordinance 1968, applicable to the Establishment and the Appellant Organization.

3. The claim of respondent was resisted by the appellant in reply statement wherein it was asserted that the respondent was employee of WAPDA and came on deputation from WAPDA on 1‑7‑1974 on inception of the appellant company and that he being employee of WAPDA was deemed to be a civil servant and remedy for him was available before the Service Tribunal. On these assertions the jurisdiction of the Lower Court was also questioned. .

4. In the trial Court the attorney of the respondent was examined while the appellant filed the affidavits of its officers namely Riaz Akhtar Khan, Muhammad Iqbal and Sirajul Hasan. The first two officers however, could not be produced for cross‑examination as his evidence from para. No. 1 of the page No. 2 of the impugned order Mr. Niazi was cross‑examined during which he admitted that is not in the employment of appellant when the respondent resigned from service of M.C.P. After evidence of parties the learned Authority awarded the amount mentioned above vide impugned order giving rise to above appeal.

5. I have heard the Advocates of the parties and have gone through the material placed on the record. It was contended by Mr. Ghani the learned Advocate for the Appellant that the respondent was WAPDA employee and therefore could not have filed application before the Authority. In this respect he relied upon the Authorities reported in 1987 S C M R 298, 1986 S C M R 21 and‑ s 1986 S C M R 676.

6. The next contention of Mr. Ghani is that in the learned Lower Court the attorney of the respondent had denied the signatures of the respondent on the under takings placed on record as Exhs. 0/9 and 0/10 and it was therefore that an application was made to the learned Authority for summoning the respondent but the learned authority did not decide the interlocutory application filed for summoning and examining the respondent in person in order to testify his signatures on the under takings given by him vide Exhs. 0/9 and 0/10, although the learned counsel for the respondent had made a statement that the respondent was living in up country and it was quite inconvenient as well as expensive for him to appear in person hence the Court could presume any inference of his absence.

7. On the other hand Mr. Awan the learned Advocate for the respondent submitted that all the citations quoted by the learned Advocate for the appellant are in respect of reinstatement of WAPDA Employees in WAPDA while the case in hand pertains to recovery of dues of Gratuity and Provident fund. He submitted that the respondent was admittedly a workman, employee in the factory/workshop maintained by the Appellant and, therefore, even if it is presumed that employees of WAPDA have been declared to be civil servants yet the respondent is excluded from the clutches of civil servants laws by virtue of section 2(b) (I and II) of the Civil Servants Act because he was a workman under the factories law. He maintained that for the purpose of recovery of the dues claimed by the respondent the Authority under the payment of Wages Act has the jurisdiction to entertain the matter even of the WAPDA Employees and in support of his submission he cited P L D 1979 Lahore at page 1156 (concluding portion of para. No. 9 at page 1160, 1986 P L C 737, 1986 P L C 1025 and 1987 P L C

506. Mr Awan contended that in all these authorities the workers of M.C.P./WAPDA co‑workers of the respondents in this case, filed the claim against the M.C.P. the appellant, and the learned authority allowed their claims which were upheld by this Court in its appellate jurisdiction and in all these cases the claim of workers were resisted on the ground that they were civil servants as a result of which the learned Authority had no jurisdiction to entertain the matter itself but this Court after considering the factual and legal aspect repelled these contentions and held the M.C.P. liable to settle the claim of the workers although they were on deputation from WAPDA to M.C.P. In a case reported in 1978 P L C at page 506 this Court came to conclusion as under:‑‑ "Appellant Organization coming into being as a separate entity and all outstanding dues of its predecessor Organization payable by appellant in terms of agreement between the workers and appellant held, cannot avoid a liability on any score".

8. It was further contended by the learned Advocate for respondent that decision of this Court in a case reported in 1986 PL C at page 1025 whereby the appeal of this very organization appellant was dismissed on the ground that the claim of gratuity etc. was deemed to have been determined under the provision of law (Standing Orders) Ordinance, 1968 which is not appealable before the Labour Court under section 17 of the Payment of Wages Act and in the instant case the claims, of the respondent are also guaranteed under the provisions of (Standing Orders) Ordinance, 1968 He further submitted that in very decision reported in 1986 P L C at page 737 which was also a case of one of the worker of the appellant Organization who was on deputation from WAPDA and was retired by the appellant it was held by this Court that M.C.P. (appellant) is liable to settle the claim of dues of the workers. He further submitted that it is also held in this very authority that hence saying of the appellants attorney that the claimant was WAPDA Employee will not absolve the M.C.P. to settle the claim of the worker Mr. Awan has also placed on record the copy of un‑reported judgment of the Hon'ble High Court of Sind (M:C.P. v. Shamsdin) and contended that appellant Organization had raised the similar points before the Hon'ble High Court but the same were repelled.

9. With regard to nonappearance of the respondent himself before the learned trial Court Mr. Awan submitted that the learned authority has rightly ignored the undertakings of the Exhs. 0/9 and 0/10 firstly because these do not bear any date and secondly because they are not counter signed by any officer before whom these were executed and the same do not show as to whether the WAPDA are the appellant Organization had accepted the same. Further, Mr. Awan submitted, the so‑called undertakings were filed by the appc1lant from its own record which shows that these were never sent to WAPDA for acceptance.

10. It was further contended by Mr. Awan that the respondent worker who had served in organization for 22 years has not been sanctioned any pension by WAPDA or M.C.P. because according to the appellant Organization the respondent was not entitled to pension under the Rules framed by WAPDA. Mr. Awan maintained that the document Exh. 0/6, which is a letter from WAPDA shows that the payment of fund (Part payment release to the respondent worker was through M.C.P. the appellant Organization and WAPDA did not make any direct payment to the respondent which reveals that the appellant is maintaining the entire record of the employees though on deputation from WAPDA.

11. Mr. Awan while referring me to a document dated 7‑2‑1981, Exh. A/1, which is order whereby the appellant Organization has itself accepted the resignation of the respondent and advised him to collect his dues, has contended that appellant is legally estopped to act otherwise as this document was not disputed either before the learned authority or before this Court during course of arguments.

12. Mr. Ghani the learned advocate for the Appellant referred me to the j evidence of the attorney of the respondent in which he admitted the basic pay of the respondent to be Rs.543 per month and contended that the learned authority has wrongly calculated the gratuity at the rate of Rs.799 per month.

13. In reply Mr. Awan submitted by inviting my attention to the document produced as 0/11, which is certificate of salary of respondent and produced by the appellant organization itself before the learned authority that the total salary of respondent as mentioned is Rs.799 per month. Mr. Awan cited 1981 PLC 800 wherein it has been held by Hon'ble High Court of Karachi that the gratuity is to be calculated on the total emoluments including the allowances. On the strength of this authority Mr. Awan submitted that the authority has rightly computed the gratuity to the respondent.

14. It was also contended by Mr. Awan the learned Advocate for the respondent, that Exh. A/2 produced in the R & P of the Lower Court is agreement executed between the appellant Organization and C.BA. Union and according to the decision taken at item No. 5 of the agreement the appellant establishment is bound to make payment of Gratuity and Provident Fund and this document has not been disputed at all as a result of which this document on the face of it is sufficient to bind the appellant not to take any other stand.

15. It was pointed out by Mr. Awan that in para. No. 6 of the reply statement filed in the Lower Court the appellant has admitted that the payment of gratuity pertaining to the period of WAPDA is up to 1970, the time much before the inception of the M.C.P., has been paid to the workers and, therefore, it is not understood as to how the subsequent payment is denied by the appellant.

16. It may be mentioned here that alongwith reply statement photostat copies of the forms were filed on behalf of the appellant Organization by its Deputy Manager Mr. Muhammad Younus Ahmad Khan who was admittedly not Examined by the appellant organization before the trial Court. Similarly, affidavit in‑evidence alongwith some documents were filed on behalf of the appellant by Mr. Raees Ahmad Khan, Deputy Manager who was also not tendered for cross examination before the Authority with the result that no reliance can be placed t on their assertions and the documents filed by them as no evidentiary value could be attached to their evidence and documents produced by them as per authorities reported 1984 C L C at page 3172 and 1972 P L D Supreme Court at page

25. The upshot of the above discussion is that there is no merit in the above appeal which is accordingly dismissed. A.E./1333/Lb.S Appeal dismissed.