2000 PLP 131 (PLC)

This appeal is directed against the order; dated 5‑11‑1998, passed by the learned Presiding Officer, Labour Court, Haripur, whereby the application of the respondent under section 51 of Industrial Relations Ordinance, 1969 (hereinafter to be called the Ordinance), was accepted and appellant was ordered to pay an amount of Rs.75,000 to the respondent within one month.

2. Concise facts It the background for the institution of this appeal are that the respondent was appointed as Assistant Foreman in the Mechanical Department in the appellants establishment on contract basis for a period of one year vide Letter No.PCFL/Adorn/Persl./84, dated 13th August, 1984, which period was extended from time to time up to 31‑1‑1993, thereafter, he was appointed on the post vide Letter No.PCFL/GS/IR/93/1148, dated 13‑2‑1993 and on his successful completion of probationary period, confirmed, w.e.f. 1‑5‑1993, he served the appellant establishment for more than 12 years without any break. On 21‑8‑1995, a Memorandum of Settlement was executed between the management and the Labour Union (CBA) whereby besides other items it was agreed upon vide clause XVI that if retrenchment is made, the workmen will be given Golden Hand Shake on reasonable formula agreed mutually between the management and the C.B.A. A formula for Golden Hand Shake was set out in an Agreement executed on 11‑12‑1995 by the parties the services of the respondent were terminated by way of retrenchment with effect from 31‑3‑1996 vide letter, dated 31‑3‑1996. The respondent alleged that he was entitled to Rs,2,00,000 (Rupees two lacs only) on account of Golden Hand Shake but he was paid a sum of Rs.1,25,000 (Rupees One Lac and Twenty Five Thousand only) and the remaining amount was illegally withheld. The respondent being aggrieved by the aforesaid deduction of Golden Hand Shake amount served a grievance notice on the employer but it bore no fruit. Therefore, he approached the Labour Court through an application under section 51 of the Ordinance and prayed that the management be directed to pay him the remaining amount of Rs.75,000 (Rupees Seventy Five Thousand only).

3. Management contested the petition. At the trial of the case, the respondent produced three witnesses including himself in support of his contention, while appellant management did not produce any evidence and placed reliance on the evidence of the respondent. The learned Labour Court, by an order, dated 5‑11‑1998, accepted the application of the respondent and directed the appellant management to pay an amount of Rs.75,000 to the respondent within one month which order is impugned herein.

4. At the very outset learned counsel for the respondent objected to the competency of the appeal contending that the order passed under section 51 of the Ordinance by the Labour Court is not appealable before this Tribunal. The objection could not be controverted by the learned counsel for the appellant and submitted that appeal has been filed due to inadvertence, and it may be treated as a revision petition. The impugned order does not fall within the scope of section 37(3) of the Ordinance, however, in the interest of justice it is deemed proper to treat this appeal as a Revision Petition.

5. I have heard learned counsel for the parties on the merits of the case and the record was also gone through with their assistance.

6. It was contended by learned counsel for the appellant that the respondent was a contractual employee therefore, he was not a workman and could not invoke the jurisdiction of the Labour Court. It was argued that grievance petition has not been filed under section 25‑A, of the Ordinance for the enforcement of his right guaranteed or secured to him under any law, Award or Settlement, therefore his application under section 51 of the Ordinance for the said relief, was not maintainable before the Labour Court and as such the impugned order was passed without lawful authority.

7. On the other hand, learned counsel for the respondent defending the impugned order vehemently opposed the plea of the learned counsel for the appellant and submitted that the appellant has served the establishment for more than 12 years without any break, therefore, he was a permanent workman and the Labour Court had the jurisdiction to adjudicate the application under section 51 of the Ordinance. He submitted that the respondent was entitled to Rs.2,00,000 (Two Lacs only) in view of the length of his service but he was paid a sum of Rs.1,25,000 and the remaining amount was illegally withheld, therefore, the respondent was entitled to recover the money due from the employee under the settlement through the Labour Court under section 51 of the Ordinance.

8. On merits, I do not find any substance in the contentions of the learned counsel for the appellant as the respondent though initially employed on contract basis which was extended from time to time, was later appointed on regular basis and was confirmed as such, thus, he attained the status of a permanent workman as given in section 2(xxviii) of the Ordinance read with Schedule of section 2(g)I(b) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The employers device of keeping the respondent on contract from time to time without break in service was mala fide and was designed to defeat the legal provisions as contained in the afore quoted law. Since the respondent has served appellant's establishment for more than 12 years without any break, therefore, he was entitled under the Agreement, dated 11‑12‑1995, to the payment of Rs.2,00,000 (Two lacs) on account of Golden Hand Shake but he was less paid a sum of Rs.75,000 to which he was entitled and the learned Labour Court under section 5 of the Ordinance was competent to determine and recover the money due from the employer. The result of the above discussion is that there is no legal ort factual flaw in the impugned order of the learned Labour Court and the same is accordingly upheld. The instant appeal/revision petition is, therefore, dismissed with no order as to costs. H.B.T./227/Lab (N.W.F.P.) Appeal dismissed.