1976 PLP 581 (PLC)

The petitioner has lodged the present petition praying for payment of wages for overtime, and his re-instatement in T. J. V. on the grounds (1) that the job for which he was hired (General Foreman) was still in operation and had not become redundant ; (2) that the services of the petitioner were illegally terminated on 1-8-74 and the duties previously assigned to him were now being performed by another General Foreman who was junior to the petitioner ; (3) that the applicant had been working overtime for which a sum of Rs. 18,500 (excluding Ration allowance) stood unpaid which was payable by the respondent to the petitioner. That the details of overtime done were attached alongwith the petition. The respondent was directed to file written reply to the petition vide my order dated 14-I1-1974 which was duly submitted on 30-11-1974. The written reply contained the objection as to the jurisdiction of N. I. R. C. to entertain such like petitions, the case was fixed for orders regarding the f preliminary objection alongwith other cases in which the same objection had been raised which were argued before me at length by the learned counsel of the parties. Consequently, vide my detailed order dated 30-12-74, the preliminary objection as to the jurisdiction of N. I. R. C. was disposed off and it was held by me that the matter under dispute was well within the jurisdiction of the Chairman, N. I. R. C. and the member authorised by him in this behalf and the case was fixed for consideration on merits on 3-1-1975 on which date, the learned counsel for the parties were heard at length regarding the' merits of the case. The learned counsel for the respondent filed copy of the Service Rules of the Employees of T. J. V. drawing Rs. 600 or more per month as their pay which has been placed on the file, certain necessary questions were put to the petitioner and the questions alongwith his answers were duly recorded by me. (i) Payment of wages for overtime.-The detail of overtime work alleged to have been done by the petitioner attached alongwith the petition dates back to the year, 1969. In this connection, the learned counsel for the petitioner submitted that section 15 (2), proviso (i) of the Payment of Wages Act, 1936 was amended in October 1972 according to which limitation under subsection (2) of section 15 of the said Act was extended to three years and that Essential Services (Maintenance) Act, 1952 teas made applicable to T. J. V. on 31-1-1974 prior to which the Payment of Wages Act was applicable to T. J. V. hence the petitioner could claim his overtime used for at least three years dating back from 31-1-1974 (date of application of Essential Services Maintenance Act, 1952 to the T. J. V ). In reply to this contention of the learned counsel for the petitioner Mr. S. Naeem Bokhari, the learned counsel for the respondent submitted that petitioner was appointed as General Foreman on 29-1-1969 at Rs. 450 and that according to the Service Rules for employee of T. J. V. drawing less than Rs. 600 p. m. as pay he was entitled to wages for overtime if any at the rate of 1-1/2 of daily wages, but petitioner's pay was fixed @ Rs. 800 p.m. on 1-12-1969 and as per rule 22 of the service rules for employees of T. J. V. drawing more than 600 per month (copy of the rules is on the file) pay of Rs. 800 of the petitioner included Food allowance and overtime if any and in view of this rule he could not claim any amount for overtime if any. The learned counsel for the respondent further argued that even if the petitioner had done any overtime work between the period commencing from his appoint ment Le., 29-1-69 and ending on 1-12-1969 when his pay was fixed @ Rs. 800 p .m. he was to claim the amount if any within six months of the accrual of the right i.e., from the date on which the payment of the wages was due to be made, according to section 15 (2), proviso (i) of the Payment of Wages Act, 1936, as it then was, (the amendment in section 15(2), proviso (i) of the Act was made in October 1972 extending the limitation from six months to three years), hence the learned counsel for the respondent argued that either the petitioner has been paid his dues for overtime work done during the period from 29-1-1969 to 1-12-1969 for even if any amount remained unpaid by the respondent that had become time-barred. The learned counsel for the respondent has further argued that section 1 (5) of the Payment of Wages Act, 1936 was to be read with section 2 (g) of the said Act, section 1 (5) of the Payment of Wages Act, 1936 reads as under : "The Provincial Government may after giving three months' notice of its intention of so doing by notification in the official Gazette, extend the provisions of the Act or any of them to the payment of wages to any class of persons employed in any industrial establishment or any class or group of industrial establishments and section 2 (g) of the said Act reads as under 'Establishment of a contractor who directly or indirectly employs persons in any industrial establishment to do any skilled or unskilled, manual or clerical labour for hire or reward in connection with the execution of a contract to which he is a party and includes the premises in which or the site by which any process connected with such execu tion is carried on'." The learned counsel argued that there has been no notification by the Provincial Government so far as envisaged by section 1 (5) of the Act Reading section 1 (5) and section 2 (g) of the Act together makes it clear that the Payment of Wages Act, 1936 was not applicable to T. J. V. and asp per contract of employment once an employee gets monthly pay of more than Rs. 600 he is not entitled to any overtime because according to rule 221 of the Service Rules for employees drawing more than Rs. 600 per month their pay included overtime as well. The learned counsel for the respondent further contended that section 47 of Factories Act, 1934 guarantees to the employees double of daily wages for overtime but Factories Act does not apply to T. J. V. In this connection, he drew my attention to the Gazette Notification of Government of West Pakistan, dated 4-8-1969. (Photostat copy Annexure 1), I find myself in complete agreement with the learned counsel for the respondent and hold that the petitioner is not entitled to claim any wages for overtime work done after 1-12-1969 and even if any overtime work was ever done prior to 1-12-1969 and any amount remained unpaid the claim for the same has become time-barred. (ii) Retrenchment.-As regards retrenchment of the petitioner the learned counsel for the petitioner contended that the job for which the petitioner was hired (General Foreman) was still in operation and had not finished or become redundant and that the duties previously assigned to the petitioner were now being performed by another General Foreman who was junior to the petitioner. In reply to this contention, the learned counsel for the respondent submitted that retrenchment of employees was a normal incident in a Construction Industry (TJV) where employment was essentially of a temporary nature. That the work undertaken by the T. J. V. (Construction of Dam) was almost about completion and employees rendered surplus were being retrenched in phases since 1972 and that up to present moment more than 5,000 persons have been retrenched and that as such the petitioner was retrenched due to redundancy in the normal course of retrenchment. The learned counsel particularly drew my attention to Annexure 2 which is the opinion of the Law Department, N.-W. F. P. to the effect that General Foremen at T. J. V. were not workers and belonged to the category of employers on account of nature of their work and pay etc. and on the basis of Annexure 2 he argued that the principle of "First come last go" applies to workmen under the Standing Order No. 13 of the West Pakistan Standing Orders Ordinance, 1968 and that definition of workman has been given in Standing Order No. 2 of the said Ordinance of 1968 according to which an Annexure 2 referred to above the petitioner could not take the benefit of Standing Orders Ordinance 13 of West Pakistan Standing Orders Ordinance, 1968 and the principle of "first come last go" does not apply in his case and that he is governed by the rules of employees of T. J. V. drawing above Rs. 600 per month as their pay and that in case of the petitioner rule 6.02 applies (copy of the rules is on the file) according to which all appointments were subject to termination at one month's notice on either side, that the petitioner was given one month notice before his services were terminated. The learned counsel conceded in his arguments that although there was no complaint whatsoever against the petitioner but as the principle of "first come last go" did not apply to the petitioner, as discussed above, hence it was well within the discretion of T. J. V. authorities to decide as to which of the two persons even if one of them happened to be senior in service and equally efficient was to be retrenched. Strictly legally speaking the contention of the learned counsel for the respondent may be accepted as correct but we should not loose sight of the fact that even if a person is vested with discretion in a matter the discretion must be exercised in accordance with natural justice and equity, particularly in concerns to which Essential Services Act, 1952 and the rules made thereunder have been made applicable. The Management should not decide such like matters in an arbitrary manner according to their whims, caprice and sweet will because the very application of Essential Services Act, 1952 to a concern results in curtailment of so many rights of the employees who under the circumstances g deserve to be treated with natural justice and equity in such like matters otherwise arbitrary decisions and decision made according to mere whims and caprice of the authorities in such like concerns are bound to result in heart burning and feeling of insecurity amongst the employees which may eventually take the form of labour and industrial unrest, while industrial and labour peace is the crying need of our times. Hence even if strictly legally speaking principle of "first come last go" does not apply in such like cases of retrenchment, the principle being in conformity with natural justice and equity must be followed. In view of the above discussion, I direct as under (i) In this case in particular and in all the cases of retrenchment of employees in the concerns to which Essential Services Act has been made applicable by the Federal Government, in general, the principle of "first come last go" must be followed ; (ii) Mr. S M. Zamir Alam, B. No. 6583 (General Foreman for plumbing job of T. J. V. Tarbela Dam) be re-instated as such with full back benefits from the date of his retrenchment i.e., 12-8-1974 till date of his re-instatement. He is not entitled to any wages for any overtime work.