1998 PLP 15 (PLC)

(ii) That the entry in the record of respondent No. 1 relating to the petitioner's age was erroneous and the Labour Court as well as Appellate Tribunal ought to have recorded a finding as to the petitioner's correct age on the basis of evidence adduced by the petitioner.

4. In support of his first contention, Mr. Sher Afgan has contended that when the petitioner joined the service of the respondent No. 1 there was no prescribed age of retirement and he was entitled to remain in employment unless found physically incapable of performing his duties. The terms of the settlement according to the learned counsel, could only be prospective and could not be given retrospective effect so as to impair the vested rights to those already in employment. He has placed reliance on Division Bench judgment of this Court in the case of A.E.G. Telefunken Pakistan (Pvt.) Ltd. v. Sindh Labour Appellate Tribunal (1989 PLC 525). In the aforesaid case, the respondent No. 3 was employed at the time when no age of retirement was prescribed for its employees by the petitioner. However, by resolution dated 25-5-1978 the petitioner company prescribed 58 years as age of retirement for its employees and by another resolution dated 20-5-1979 it was raised to 60 years. These resolution then became the part of the service regulations of the company. When the respondent-employee was made to retire on attaining the age of 60 years he successfully challenged the decision before the Labour Court.

5. The petitioner-employer questioned the decision of the Labour Court by way of appeal to the Labour Appellate Tribunal and subsequently through a Constitutional petition before this Court but both the appeal and the petition failed. It was held that the respondent-employee was appointed at the time when there was no prescribed age of retirement and the subsequent resolutions laying down such age was not applicable to him. The argument that they were the outcome of an agreement with the Labour Union was considered independently and repelled on merits. It was observed:

"Normally rules or regulations affecting the substantive rights of the workers when framed by the employers can only be applied prospectively unless accepted by the worker. The petitioners on their own showing have on their own made the regulation fixing the age of retirement applicable with effect from 1st January, 1979 as stated above and was not introduced by way of any settlement. "

6. In the first place Mr. Sher Afgan does not appear to be quite correct in asserting that by applying altered conditions of service to existing workers such condition are being given retrospective effect. It is indeed correct that legal instruments are so interpreted that they are not presumed to impair vested right. We are, however, a little doubtful as to whether the petitioner had acquired a vested right to remain in service indefinitely merely because no retirement age was prescribed by the employer at the time of his joining service. Nevertheless assuming that he had done so it is indeed unquestionable that such right can be taken away through statutory dispensation.

7. The argument of the learned counsel fails to take note of the fundamental distinction that whereas in the said reported case the age of superannuation was determined by employer on his own through a resolution, in the instant case it was the outcome of a duly negotiated settlement with the Collective Bargaining Agent. The effect of such settlements is laid down in section 39 of the Industrial Relations Ordinance itself which reads as under:-- "

39. Settlement and awards on whom binding.

(1) A settlement arrived at in the course of a conciliation proceeding or otherwise between the employer and the collective bargaining agent or any award of arbitrator published under section 31, or an award or decision of a Labour Court delivered under section 37 or the decision of a Tribunal under section 38. (a) be binding on all parties to the industrial dispute, (b) be binding on ail parties summoned to appear in any proceeding before a Labour Court as parties to the industrial dispute, unless the Court specifically otherwise directs in respect of any such party, (c) be binding on the heirs, successors or assignees of the employer in respect of the establishment to which the industrial dispute relates where an employer is one of the parties to that dispute, and (d) where a collective bargaining agent is one of the parties to the dispute, be binding on all workmen who were employed in the establishment or industry to which the industrial dispute relates on the date on which the dispute first arose or who are employed therein after that date; "

9. Evidently under clause (d) above the terms of a settlement are binding on all workman employed in the establishment on the date the industrial dispute, including petitioner, by mandate of the statute. Such being the position no reliance can be placed on a general rule of interpretation. In fact their Lordships while deciding the abovementioned precedent appeared to be fully conscious of this legal position and proceeded to dismiss the employer's petition only after sustaining a finding of fact to the effect that the retirement age has been determined not as a consequence of settlement but only through unilateral resolution of the employer company. The above judgment, therefore, does not help Mr. Sher Afgan. 9-A. As regards the second submission it may be pertinent to refer to clause (8) of the settlement dated 11-6-1975 which reads as under:-- "

8. AGE OF RETIREMENT (a) the Management and. the Collective Bargaining Agent agree that the age of retirement shall be 58 years. The age as contained in the personal file of the worker will be the basis for determing the age of retirement and m case the file is silent and School Leaving Certificate or birth Certificate is not available in this respect, then it is agreed that the decision of the Certifying Surgeon regarding determination of age shall be final."

10. Evidently the terms of the settlement which were indeed binding on the petitioner not only stipulated a retiring age but also provided how the age of worker for the purpose of superannuation would be reckoned. Extraneous evidence as to the age could only be taken in case the personal file of the worker did not indicate his age which was not so in the instance case. Indeed learned counsel for the petitioner has referred to the age shown in the National Identity Card and other documents produced by the petitioner but has not been able to refer to any requirements of law stipulating that the age shown in such documents must be treated as conclusive evidence. Moreover, there being a concurrent finding of fact recorded by the competent fora and no misreading of evidence having been shown we find no reason to interfere. In view of the above we find no force in this petition and would dismiss the same in limine. A.A./J-21/K Petition dismissed.