2006 PLP 164 (PLC)

SYED HAMID ALI SHAH, J.

Facts of the case in a narrow compass are that the appellant was appointed as Secretary Public Relations Department on 2-10-1996 and after completing a probationary period of three months, became a permanent employee. Services of the appellant were terminated on 30-4-1998. The appellant challenged her termination through grievance petition, which was accepted and learned Labour Court No.1, Lahore vide order dated 13-5-1999 reinstated the appellant in the service with back-benefits to the extent of 50%. After resumption of her duties, the appellant claimed her back-benefits of accumulated leave due, at her credit, for a period from 30-4-1998 to 18-1-2003, which as per her representation, before respondent No.1/General Manager, is 150-days unavailed leave. The respondents, in response to the representation of the appellant, conveyed that she is entitled for 56-days at her credit in the light of agreement arrived at between the Union and the Management. The appellant again approached the Labour Court seeking the relief of back-benefits of accumulative leave of 150-days, under section 46 of the Industrial Relations Ordinance 2002. The grievance petition was dismissed vide impugned order 4-1-2005, hence this appeal.

2. The appellant contends that leave accumulation cannot elapse but can be encashed in terms of money, if such leave is not availed. The appellant has been granted leave for 56-days on the basis of settlement arrived at between the union and the management, through agreement Exhibit R-4. It was stated that complete agreement was not produced and the application for the production of the complete record of the agreement was dismissed without any reason. Respondents withhold the best evidence and as such are not entitled for any advantage for non-availability of complete agreement. She added that while recoding the evidence the legal course and proper procedure was not adopted. The Court has totally ignored that departmental proceedings against the appellant were completed at her back and thus have no sanctity of law. The learned Court has failed to take into consideration the admission of the respondents and the evidence was not evaluated according to the provisions of Qanoon-e-Shahadat Order, 1984. It was then contended that the impugned order is non-speaking. While referring to the decisions dated 13-5-1999 and 16-5-2001, it was contended that the appellant was entitled under law to be given 50% of all the back-benefits. Appellant referred to letter dated 20-5-2003 states that respondent has itself admitted that leave entitlement of the appellant is to the extent of 150-days. The appellant while referring to the case "Zamir-ul-Hassan v. Asad Saeed Divisional Superintendent" (2000 PLC 351) to contend that period, from removal from the service and joining the service is to be treated as one spent on duty which period is liable to be counted towards computation of leave. The appellant has submitted that she is entitled to encashment of entire leave and her right is protected under Standing Order

9. In support of her contention, she placed reliance on the case of "Sindh Road Transport Corporation v. Abdul Rehman" (1983 PLC 892).

3. Learned counsel for the respondents on the other hand has fully supported the impugned order. He has argued that hotels are not governed under the provisions of West Pakistan shops and Establishment Ordinance, 1969 by virtue of section 18 of the Ordinance read with Section 2(b) of West Pakistan Industrial and Commercial Employment (Standing Order Orders), 1968. He has referred to clause (6) of the Union Agreement (Exh.R/4) according to which every workman who completed one year of the continuous service is entitled to 28-days annual leave and in case it is not availed, it is subject to accumulation to a maximum period of two years. Learned counsel submitted that in view of clause (6) of the Union Agreement the appellant was entitled to total leave of 56-days. He while referring to the case of "Pakistan Auto Mobile Corporation Ltd v. Mansoor-ul-Haq: (2002 PLC (C.S.) 1151) contended that an employee is not entitled to back benefits where it has not been proved through proper evidence that the employee at the time, when he was out of service, did not work anywhere to gain financial benefits. It was then contended that an employee who is kept out of office partly or wholly on account of conduct attributed to him/her, then such employee cannot claim back benefits. Learned counsel referred to the case of "Shahzad Baber Khan v. Punjab Agricultural Development and Supply Corporation" (1985 PLC 254) to contend that 14-days can be accumulated in a year which can be added to un-availed leave of next year totaling 28 days. It was lastly contended that the definition of wages does not include the leave entitlement. Even the house accommodation was held, falling outside the purview of wages, as per the dictum of lawlaid down in the case titled "Abdul Jabbar Amin v. Seigfried-Beacon Pakistan Ltd." (!978 PLC 580).

4. Heard appellant and learned counsel for the respondent and examined the record.

5. The law governing the terms and conditions of employment is contained in West Pakistan Industrial and Commercial Employment Standing Order Ordinance, 1968. This Ordinance is applicable to Industrial and Commercial Employment. The commercial establishment has been defined in Section 2(b) as follows: (b) "commercial establishment means an establishment in which the business of advertising, commission or forwarding is conducted, or which is a commercial agency, and includes a clerical department of a factory or of any industrial or commercial undertaking, the office establishment of a person who for the purpose of fulfilling a contract with the owner of any commercial establishment of industrial establishment, employees workmen, a unit of joint a stock company, an insurance company, a Banking Company or a Bank, a brother's office or stock-exchange, a club, a hotel, a restaurant or an eating house, a cinema or theatre, and such other establishment or class thereof, as Government may, by notification in the official Gazette decide to be a commercial establishment for the purposes of this Ordinance." Perusal of the above provisions clearly indicates that the Ordinance 1968 is applicable to the hotel employees and since the establishment is a hotel the provisions of ordinance are applicable to it.

6. The question of leave entitlement is dealt with the Standing Order 8 of the West Pakistan Industrial and Commercial Employment (Standing Order), Ordinance 1968. Relevant part is para. 1(a), which is reproduced as under:- "(a) Annual holidays, festival holidays, casual leave and sick leave provided in Chapter IV-A of the Factories Act, 1934 (XXV of 1934")

7. Since the above entitlement of annual holidays is in accordance with Chapter 4 of the Factory Act 1934 it may be useful to refer to this provisions:-- "Section 49-B. Annual Holidays.

(1) Every worker who has completed a period of twelve months holidays for a period of fourteen consecutive days, inclusive of the day or days, if any, on which he is entitled to a holiday under subsection (1) of section 35." Under the above provisions every worker is entitled after completion of 12 months continuous service to 14-consective days of annual holidays and is also entitled to under subsection 2 of section 49 (b) to accumulation for two years, therefore, the entitlement of accumulation conferred by section 49(b) is to be maximum for two years.

8. Clause 6 of the settlement agreement (Exh.R/4) is document produced in evidence and is admissible document. The same is also reproduced as under: "Every Worker who has completed one year of continuous service shall be allowed 28 calendar days annual leave with effect from January 1, 2000. If the Hotel Management terminates the service of a workman, only the annual leave earned but not availed shall be encashed and paid along with the terminal benefits. Application or annual leave will normally be for not less than 6-days. A worker can only proceed on annual leave with the prior written approval of his Department Head and after obtaining leave pass duly signed by the HR Manager. The Hotel Management will normally permit a worker to proceed on an annual leave when desired by him and as far as possible accommodate him to avail leave according to his choice, but reserve the right to schedule leave consistent with the work requirement/annual schedule prepared in the beginning of each calendar year. Ordinarily a worker shall not be allowed to proceed on annual leave during peak period of the hotel. Leave may be accumulated upto maximum of two (2) years entitlement (based on 28 Annual leaves in a calendar year)." This clause also allows accumulation to two years leave entitlement.

9. Appellant has referred to the case of "Sindh Road Transport Corporation v. Abdur Rehman" (1983 PLC 892) where the Labour Court held that unavailed earned leave, on full pay for 90-days could be encashed, while there was no limit on encashment of unavailed leave on half pay. I am afraid that the judgment cited by the appellant is of any help to the appellant. The entitlement to the encashment of unavailed C leave was granted to the employee of SRTC (Sindh Road Transport Corporation) on the basis of the custom and usage. Neither such custom prevails in the respondent's establishment nor the appellant has claimed benefits of unavailed leave on the basis of custom or usage. Section 46 of the Industrial Relations Ordinance under which these proceedings were initiated before the Labour Court is in respect of any right guaranteed or secured to him by or under any law, any award or settlement for the time being in force.

10. Therefore all what the appellant could claim, were the rights available to her under law or settlement. Since it is not a case of award, the appellant is entitled under law to 14-days leave per year and accumulation of maximum two years, under Chapter 4 of the Factories Act, 1934 or on the other hand, she is entitled to. 28-days leave per year and accumulation for two years, under the settlement. Thus her maximum entitlement is for 56-days. No provision of law or settlement has been pointed out, which entitles the petitioner to encashment of more than the abovementioned leave. Therefore, in my opinion the appellant is entitled to accumulation of leave only up to 56-days, which has been allowed by the respondent establishment and she is not entitled to any accumulation beyond 56-days or any encashment in respect of any other entitlement.

11. For the forgoing, this appeal is without any force and is dismissed as such. No order as to costs. H.B.T./Z-142/L??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.