2008 PLP 30 (PLC)

FAISAL ARAB, J.

In June, 1998, respondent No.2 joined the service of the petitioner as Clerk-cum-Telephone Operator. In 2004 he was removed from service. He then filed an application for his reinstatement before the Labour Court, which proceedings are still pending adjudication. In addition to seeking reinstatement in service, respondent No.2 in the same year i.e. 2004 also moved an application under section 62 of Industrial Relations Ordinance, 2002 wherein he sought recovery of bonuses and increments etc. amounting to Rs.76,720 under the settlement that was reached between CBA and the petitioner in January, 1998. This settlement was for a period of three years commencing from 1-1-1997 and expiring on 31-12-2000. These second proceedings for recovery of Rs.76,720 under the January, 1998 settlement are subject-matter of this petition.

2. At the very outset it may be Mentioned that upon expiry of the above mentioned settlement, no further settlement was reached and a controversy with regard to a Charter of Demands for the period commencing from 1-1-2001 onwards is pending adjudication before the Labour Court in case No.1 of 2002.

3. The recovery proceedings filed under section 62 of the Ordinance, 2002 were resisted by the petitioner through an interlocutory application moved on the ground that as the settlement expired on 31-12-2001, the recovery proceedings filed in the year 2004 for enforcing terms of an expired settlement are not enforceable in law, Petitioner's interlocutory application was however, dismissed by the Labour Court vide order, dated 17-12-2004. Aggrieved by such dismissal, the petitioner has filed the present petition seeking dismissal of respondent No.2's recovery proceedings.

4. Learned counsel for the petitioner argued that application filed under section 62 of Industrial Relations Ordinance, 2002 is not maintainable before the Labour Court as the remedy if at all available in law for any unpaid wages lay before the Authority appointed under Payment of Wages Act and that too such claim has to be moved within a period of three years.

5. It is an admitted position that respondent No.2's claim emanates from a settlement reached between the petitioner and it's CBA. Section 62 of Industrial Relations Ordinance, 2002 provides that where any money is due to an employee from his employer under an award, settlement or decision of an Arbitrator, Labour Court or High Court, the same could be recovered as arrears of land revenue or as a public demand by moving an application to the Labour Court. Thus, an expeditious remedy has been provided for seeking recovery of claims arising from a settlement or a decision of an Arbitrator, a Labour Court or a High Court. Therefore, respondent No.2 was fully justified in moving an application under section 62 of Industrial Relations Ordinance, 2002 before the Labour Court for recovery of dues claimed under the settlement and hence such application was maintainable.

6. Learned counsel for the petitioner next argued that application was also not maintainable as no grievance notice was envisaged by section 46 of Industrial Relations Ordinance, 2002 was served upon the petitioner. This argument is not tenable. Section 62 of the Ordinance, 2002 does not envisage service of any such notice upon an employer. Proceedings under section 62 are in fact in the nature of execution proceedings as the amount determined by the Labour Court is recoverable as arrears of land revenue or as a public demand. Thus, c where a claim is for recovery of money due to an employee from his employer under an award, settlement or decision of an Arbitrator, a Labour Court or a High Court, then it was envisaged that it should be recovered expeditiously through summary proceedings. Such proceedings are not a regular trial and there is no requirement of serving grievance notice as is done under section 46 of Industrial Relations Ordinance, 2002.

7. Learned counsel for the petitioner next argued that after expiry of the period mentioned in the settlement a worker cannot seek enforcement of any of its terms. In support of this contention learned counsel for the petitioner relied upon two cases. In the first case reliance was placed upon a judgment of a Division Bench of this Court delivered on 10-8-2006 in C.P. No.D-852 of 1993 (Boot's Employees Union v. Full Bench of NIRC and others). The ratio of this unreported case is that the period provided in the settlement is the minimum period during which parties are restrained from raising fresh industrial dispute and after expiry of. the period if there is no new settlement arrived at or no notice is served by a party showing its intention that it no more remains bound by the settlement, the parties would continue to bind themselves to the terms of the expired settlement. In the second case reported as Avalene Silk Mills v. Second Sindh Labour Court, Karachi in 1981 PLC 4, the benefits were denied under an expired settlement as it was substituted by another settlement. For this change it was held in this case that the substitution of an agreement by a subsequent agreement amounts to the discharge of the previous agreement.

8. Section 60(2) of Industrial Relations Ordinance, 2002 no doubt provides that a settlement shall be binding for such period as is agreed upon by the parties but such position is qualified by the later part of this section 60(2) which also provides that settlement even after its expiry shall continue to remain binding on the parties until the expiry of two months from the date on which either party informs the other party in writing of its intention to no longer be bound by the settlement. This means that in order to make a settlement totally unenforceable after its period has expired, it is necessary for either party to serve two months notice disclosing its intention that it does not intent to remain bound by it. Such notice is mandatory. In the present case no such notice is even claimed to have been served what to speak of existence of such notice. Therefore, the terms of the expired settlement in terms of section 60(2) of the Industrial Relations Ordinance, 2002 would continue to remain enforceable until the requisite two months notice is served or the settlement is substituted by a fresh settlement or an award as held in the case of Avalene Silk Mills v. Second Sindh Labour Court, Karachi reported in 1981 PLC 4.

9. In both the cases cited by the petitioner, the expired settlement was either substituted by a fresh settlement or notice was issued by one of the parties to the settlement that it is no more bound by its terms. In the present case none of these two situations happened nor any Award was given by an Arbitrator or a Labour Court. Therefore, the January, 1998 settlement even after its expiry would continue to remain enforceable until a new settlement is arrived at between the petitioner and its CBA or an Award is given in the proceeding that are pending in Case No.1 of 2002 before the Labour Court.

10. In view of the above discussion, this Court is of the view that as at the time of initiation of the present proceedings neither the January, 1998 settlement was substituted by a fresh settlement or Award nor two months notice was served under section 62 of the Industrial Relations Ordinance by the petitioner showing its intention that it no more want to be bound by it terms, there is no justification to oppose the maintainability of respondent No.2's application bearing No.8 of 2004 filed before the labour Court under section 62 of Industrial Relations Ordinance, 2002. This petition along with listed application is, therefore, dismissed in limine with costs. H.B.T./J-8/K Petition dismissed.