1988 PLP 784 (PLC(CS))

(d) Industrial Relations Ordinance (XXIII of 1969)‑‑ ‑‑S. 25‑A‑‑Short payment of legal dues‑‑Onus lies on petitioner, prove. (e) Industrial Relations Ordinance (XXIII of 1969)‑‑- ‑‑S. 25‑A‑‑Employee describing himself as "retired employee" in hi grievance notices and other communications filing grievance petition under S.25‑A alleging short payment of legal dues on his self‑sought retirement‑‑Contention by respondent that relationship of employer and employee having ended, petition under S.25‑A was not maintainable‑‑Held: The petitioner, in the circumstances, was not estopped from filing the petition and challenging his retirement. Ch. Nazir Hussain for Appellant. K. B. Abbas for Respondents. Date of hearing: 25th October, 1987. The appeal captioned above challenges the correctness of the decision dated 2‑8‑1987 recorded by the learned Presiding Officer, Punjab, Labour Court No.9, Multan, whereby the grievance petition of the appellant was dismissed.

2. The facts are that the appellant was transferred from Multan to Karachi and he had challenged the said order in the Labour Court by an application brought under section 25‑A of the Industrial Relations Ordinance, 1969. The appellant had made an application for interim stay which was granted but in appeal it was vacated. The appellant challenged the order of this Tribunal ,before the High Court in a writ petition wherein a compromise was effected which was to the effect that if retirement benefits were paid to the appellant, he would stand as retired. The writ petition was, accordingly, disposed of. The respondents produced a cheque for Rs.33,553.73 in the learned bower Court but it was returned with the observation that it be delivered to the appellant out of Court. The cheque was delivered to the appellant which he received on 8‑2‑1982 subject to just exceptions with regard to the amounts covered by the cheque as he claimed that he was entitled to much more than what had been offered to him. The appellant got the cheque encashed and after serving a grievance notice dated 18‑5‑1982 brought the grievance petition, from the decision of which the present appeal arises. 3.???????? The case of the appellant is that Rs.18 were‑paid less to him as his pay. He claimed bonus and some other dues. The petition was opposed by the respondents on merits and on the ground that it and the grievance notice were timebarred. Before giving grievance notice the appellant had been demanding break up of the amounts covered by the cheque. The learned counsel for the respondents has argued that the appellant got the knowledge of the actual amount when he received the cheque on 8‑2‑1982 by getting it encashed and from that date the grievance notice was timebarred. On the other hand the case of the appellant is that he had sent application Exh.P‑6 dated 30‑1‑1982 under postal receipt Exh. P‑7 and A. D .receipt Exh. P‑8 demanding, break up of the amounts and its reply Exh.P‑13 was despatched on 30‑3‑1982 and from this date the grievance notice dated 18‑5‑1982 was within time. Admittedly, the grievance petition was brought within two and a half months of the service of grievance notice and thus the petition was also within time. So the learned lower Court has wrongly held that the petition is timebarred.

4. So far as merits of the case are concerned, the appellant claims customary bonuses. Without proving that the bonuses claimed by him were being continuously paid to the other workers for a long) period, he could not claim that a custom had developed in that respect. Two witnesses were examined who are Muhammad Din (PW.1) and Muhammad Rafiq (P.W.2) but two instances are not sufficient. The documents produced by these witnesses were prepared by them and do not bear the signatures of any employee or the concerned officer of the respondent. At the time the witnesses were examined and they produced the documents, they were no longer in service of the respondents and, therefore, it cannot be said that the record from which they are alleged to have prepared the documents was still in their custody. So, it is quite unsafe to rely upon the documents produced by them. Certain bonuses are ex‑gratia. From the very description it is clear that such bonuses do not amount to any amenity which an employee may claim as of right. The appellant was not retired on the completion of the age of retirement but in order to avoid the implementation of the transfer order and to go to Karachi he preferred retirement. P.Ws. 1 and 2 were not retired on the basis of any compromise but on the completion of the age of superannuation. Therefore, even if the statements of the said witnesses are accepted, they are not helpful to the appellant. Previously, the case was remanded but in spite of it the appellant did not avail of the opportunity and did not call for the relevant record from the respondents to prove his case. Needless to say that since the appellant had knocked at the door of the Court, the onus was upon him to prove that the amounts covered by the cheque delivered to him were short of other dues to which he was legally entitled.

5. However, I do not find any force in the argument of the learned counsel for the respondents that since the appellant had described himself as a retired person in letters Exhs.R‑6, R‑7 and R‑19, he was estopped from challenging the order of retirement. Since according to the compromise affected before the High Court the appellant was to be deemed as retired on the payment of legal dues and as admittedly thereafter he did not remain on duty, therefore, he rightly described himself as a retired person but it does not mean that by doing so he was estopped from challenging the order of retirement. His case is that since the condition of compromise was not fulfilled, he did not stand retired and continued to be in service. If he had proved his case on merits, of course, he would have been entitled to a declaration that he had continued in service.

6. As a result, the appeal fails and is dismissed. K.B.A./464/Lb.T.??????????????????????????????????????????????????????????????????????????????? Appeal dismissed.