1989 PLP 525 (PLC)

IMAM ALI G. KAZI, J.‑‑The petitioners have filed this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 to question the legality of the order passed on 26‑5‑1987 by the Sind Labour Appellate Tribunal, Karachi, whereby the appeal being No. KAR/56/87 filed by them was dismissed. Sanober Khan, the contesting respondent in this petition, had questioned his retirement from service as a helper on his attaining 60 years of age by the petitioners by fling an application under section 25‑A of the Industrial Relations Ordinance, 1969 before the Sind Labour Court No. III at Karachi. The Labour Court after hearing the parties by its order dated 31‑1‑1987 accepted the application of Sanober Khan and directed the employers to reinstate him with full back benefits. Petitioners M/s. A.E.G. Pakistan (Pvt.) Ltd., after being unsuccessful in the appeal have filed this petition to impugne the said orders.

2. Sanober Khan, the respondent No. 3 herein, was hired as a helper by the petitioners vide their order dated 6‑11‑1971. At that time neither the order nor service regulations framed by the Company had prescribed any age of retirement. Subsequently the Company by its resolution of 25‑5‑1978 decided to fix the age of retirement to be 58 years extendable to 60 years in certain cases. Yet by another resolution of 20‑5‑1979 age of retirement was modified to be 60 years. These resolutions then became the part of service regulations of the Company. On attaining the age of 60 years Sanober Khan was made to retire with effect from 31‑7‑1985 in terms of the last resolution of the Company. Sanober Khan then made a grievance of this decision and riled an application under section 25‑A of the Industrial Relations Ordinance, 1969 before the III Sind Labour Court at Karachi.,

3. The Presiding Officer of the said Labour Court" on appraising the evidence produced by the parties and relying on cases reported in 1979 P L C 129, 1975 P L C 357 and 1977 P L C 111 arrived at the conclusion that the changed condition of service whereby the age of superannuation was fixed subsequently by the Company could not be extended in its application to the case of Sanober Khan as such a condition was to his disadvantage. The other contention raised on behalf of the petitioners before the Labour Court that the age of superannuation was fixed under an agreement with the Labour Union was repelled and application was accepted as stated above. The Sind Appellate Labour Tribunal at Karachi before whop: an appeal against the said order was brought also concurred with the conclusions of the Sind Labour Court and appeal was dismissed. Against these orders the present petition has been filed.

4. Mr. Naeem Bukhari, learned Advocate for the petitioners has mainly canvassed the following grounds; (i) As the fixation of age of retirement of a worker was not governed by any provision of a Statute it cannot be taken to be a right guaranteed by any law." Both the authorities below have, therefore, exceeded their authority in entertaining such an application under section 25‑A of the I.R.O., 1969. (ii) The respondent had undertaken that he shall always abide by the rules and regulations framed by the Company. (iii) That no law or rule imposes any restrictions on the employers to fix the age of retirement. (iv) That the age limit for retirement of workers was fixed by the management on the basis of agreement with the Labour Union and was binding against all members of that Labour Union in terms of section 39 of the I.R.O., and no relief against that could be granted. The learned counsel in support of his contentions has relied on the cases reported in 1977 P L C 226, 1974 P L C 84, 1964 L C 684 1979 P L C 129 an 977 P L. C

5. Mr. Muhammad Majeed Jeelam, learned counsel for the contesting respondent No. 3 in reply to the above contentions raised on behalf of the petitioners, stated as under; (i) In the circumstances of this case the petitioners could not retire the said respondent on his reaching the age of 60 years as such a condition was neither available in the service regulations nor contained in his appointment letter. (ii) As the petitioners have taken objection to the exercise of jurisdiction by the authorities below in this petition for the first time they cannot be permitted to do so. (iii) Grievance in respect of termination of service on the basis of retirement of the respondent being in violation of the contract of service was maintainable in law. (iv) No agreement /settlement fixing the age of retirement was ever arrived at between the management and the Labour Union.

6. According to the first contention raised by the learned Advocate for the petitioners, a worker can only bring his grievance in respect of a right guaranteed or secured to him by or under any law or on the basis of a subsisting award or settlement as provided under section 25‑A(i) of the I.R.O., 1969. Since no age of retirement was fixed by any Statute, it cannot be said to be a right guaranteed b} any law and, therefore, beyond the scope of that section. Admittedly, the age of retirement of a worker engaged with the petitioners is not governed by any provision of law except by resolution of the said Company as stated hereinabove. 11, absence of any rule or law prescribing the age of retirement, removal of a worker in the form of superannuation would amount to termination of his employment. According to the provisions of Standing Order 12(3) made in the Schedule annexed to the West Pakistan (Standing Orders) Ordinance, 1968 a worker when aggrieved by the termination of his service, removal, retrenchment, discharge or dismissal, can take action in accordance with the provisions of A section 25‑A of the I.R.O.. 1969 and the provisions of the said section shall apply as they applied to the redress of an individual grievance. The learned Advocate for the petitioners has indeed failed to take note of this provision of law. The application filed by Sanober Khan under section 25‑A of the I.R.O. 1969 was, therefore, competently filed.

7. The admitted position in this case is that neither at the time employment of Sanober Khan by any service regulation framed by the Company, nor any condition was laid down in the letter of his appointment fixing the age of retirement. The resolutions fixing the age of retirement, are all passed long after he was appointed and would, therefore, be, binding on him. These resolutions would be effective prospectively and would have application to only those workers who are appointed after the passing of such resolutions Admittedly he was taken a$ a worker in the service of the said Company without any limitation as to the age of his retirement and he could, therefore, be retired only when he was found to be as of performing his job on account of his being physically unfit. This view has also been affirmed in the case of Kettlewel Bullen & Co. Ltd. v. Kettlewel Bullen Company Ltd. decided by the Supreme Court of India and reported in 1964 LLC 684.

8. It was further contended that the respondent No. 3 was appointed on the condition that he will execute an undertaking "to abide by all the rules and regulation as may be farmed by the company" as clearly stated in the letter of appointment (Annexure C to the petition) Such an undertaking no doubt binds the petitioner to only those regulations which may not in any way negate the terms of his application or impose a condition detrimental to original terms.

9. Annexure `E' filed alongwith petition is a copy of service: regulations framed by the petitioners. Regulation 1 is given a heading of "general information" and its first paragraph reads as under:‑ "These new Regulations will come into force from 1st January, i

979. In case any of these rules will be changed in future due to change in Government regulations, Union Agreements, etc. the respective sheet will be replaced and, the date mentioned on the new sheet will automatically specify the day on which the new regulation comes into force."" Every section of these regulations bears a separate heading and is on a separate sheet. It will thus be seen that the system adopted by the petitioners Company for the purpose of effecting any change in the rules or regulations was followed by it by way of replacing the or original sleet by another sheet containing changed or modified section and date of enforcement mentioned therein. The first 29 sheets, each having a section and subject give the date as 1st January, 1979 to be the effective date. 29 sheets containing regulations on different topics are ! i:v any office bearer of the Employees Union. Regulation 8 deals with "clothing" :,:;d is given on the last :,hcct of these regulations. It bears the signature of the ‑writ and its Employees' Union and bears the date of 1st April, __ __ ':‑nf~r‑cement. T 1w ~laeet containing the regulations prescribing the aee of retirement has been filed with the petition and is reproduced below:‑ "AEG‑TELEFUNKEN PAKISTAN Service Regulations 5.9.11‑‑Retirement Age: Retirement age of ATPK Employees be fixed at fit) _vcars of age. 5.9.12‑‑Recreation Allowance: Company shall pay Rs.300 per year to all hcrn1;ancait employees drawitw basic wages/salary upto Rs.3,000 per month provided tlicv avail 1 4 calendar days earned leave at a stretch (not applicable to accumulated Ff ; = substitute holiday leave). January 1, 1979." zw Unlike the sheet mentioned herein above this sheet does not bear any signature of any of the office‑bearers of the Employees Union. It cannot, therefore, be said. that such a regulation was framed on reaching an agreement with the Labour Union, as otherwise some office‑bearers of the Union would have signed it in token of making it ‑apart of agreement as it is evident from the last sheet. 't his regulation fixes the age of retirement at 60 years of age and was to 1' be, effective from Ist January, 1979 and will not have' application to the case of petitioner as he had been employed prior to that date.

10. As regards the last contention that in absence of any provision in law or rules fixing the age of retirement the employers will be free to determine the age of retirement, there can be no dispute about this proposition but the employer has to intimate the employee his retiring age at the time of employment. Any regulation that is framed fixing the age of retirement after the employment would not be applicable to those who have been employed prior to framing of such rules or regulations. Normally rules or regulations affecting the substantive rights of the workers when framed by the employers can only be applied prospectively, unless accepted by the worker. The petitioners on their own showing have on their own made the regulation fixing (lie age of retirement applicable with effect from 1st January, 1979 as stated above and was not introduced by way of any settlement. Under these circumstances it was not possible for the petitioners to have applied that rule and retired Sanober Khan on the basis of a rule not applicable to his case and beyond the scope of terms and conditions of his service. In view of the above discussion, we rind no substance in the present petition, which is dismissed with costs. A.A./A‑525/K Petition dismissed.