1988 PLP 640 (PLC(CS))

‑‑‑Ss.25‑A, 37 s 38‑‑Appeal‑‑Point neither asserted in written statement nor in evidence before Labour Court, held, could not be raised at appellate stage. (c) Industrial dispute‑‑ ‑‑‑Pension‑‑Workman continuing in service beyond date of due retirement due to inefficiency of management in taking action for retirement‑‑Such workman, held, would be entitled to pensionary benefits for period of such service. Sh. Afzal Ahmad Qureshi for Appellant. Date of hearing: 26th May, 1987. This is an appeal directed against the decision dated 7‑3‑1987 recorded by learned Presiding Officer, Punjab Labour Court No.7, Gujranwala whereby the grievance petition of the respondent for pension benefits from 14‑9‑1966 to the date of his retirement i.e. 31‑5‑1983 has been accepted.

2. The facts of the case are that the respondent had previously brought an application under section 25‑A, of Industrial Relations Ordinance, 1969, which he had withdrawn on the statement of XEN who stated that if the petition was withdrawn, pension benefits would be paid to him. After that the pension benefits for the disputed period i.e. 1st February, 1980 to 31‑5‑1983 were not allowed, therefore, the respondent brought another application under section 25‑A, of Industrial Relations Ordinance, 1969. The appellant contends that since according to the service book the respondent was to be retired on 1st February 1980 and he continued in service by the collusion of his department, he is not entitled to pension benefits, for the said period. It has also been argued that the appellant's department came into existence in December 1968, therefore, the service of the respondent has been wrongly counted from 14‑9‑1966. It is also argued that before 15‑12‑1968 he was work charged employee, so the said period has been wrongly counted by the learned lower Court in the service of the respondent. All these facts are not known to the file. In para No.I of the grievance petition the respondent pleaded that he was employed in the Irrigation Department on 14‑9‑1966 as Baildar when the management under the WAPDA and came to the appellant's department on 14‑12‑1968. In the written statement this para has not been replied. It is mentioned that there is no need to reply the para. According to the law of pleadings where an assertion is not denied it is deemed to have been admitted. So, this is an admitted) position that the respondent came into service on 14‑9‑1966 under WAPDA and when the work was entrusted to the appellant he served under the appellant from 14‑12‑1968. Neither in the written statement nor in evidence it was asserted by the appellant that in the beginning the respondent was work charged employee. At the appellate stage this point, therefore, cannot be raised. The learned lower Court, 1 therefore, has rightly counted the service of the respondent from 14‑9‑1966 upto 31‑5‑1983 when he was admittedly retired from service. 3.It has been argued that since the respondent remained in service from 1st February, 1980 to 31‑5‑1983 without any right, therefore, he is not entitled to pension benefits for the said period. The contention is that the respondent continued in service in collusion with the concerned officers, but there is no evidence on the record about the collusion. It appears that due to the inefficiency of the management the respondent continued in service after the due date of his retirement. Since he actually served from 1st February, 1980 to 31‑5‑1983 for not any fault of his he is entitled to the pensionary benefits for the said period. In these circumstances, the learned lower Court has rightly accepted the grievance petition of the respondent.

4. As a result the appeal fails and is dismissed in limine. A.E. /364/Lb.P Appeal dismissed.