2016 PLP 93 (PLC)

CH. MUHAMMAD TARIQ, CHAIRMAN.

These appeals have been directed against the impugned order dated 04.05.2015 passed by the learned Punjab Labour Court No.6, Rawalpindi. Since the identical question of law is involved in both the appeals, therefore, they are decided by this consolidated judgment.

2. Learned counsel for the appellant, inter alia, contended that the appellant, Abdul Majeed, has filed the grievance petition under section 33 of PIRA, 2010 read with Standing Order Ordinance, 1968 contending therein that appellant was appointed as Watchman on 16.10.1982 and re-designated as Senior Helper on 16.2.1995 and at present the appellant has been working as Auto Electrician. The appellant's service career was excellent and unblemished. The appellant has been ordered to be retired from 30.11.2013; the date of birth of appellant is 2.7.1953; that appellant submitted an application on 11.11.2013 requesting therein that in view of clause 19(C ) of the settlement dated 9.5.2009 his retirement may be extended for further two years and in view of the agreement providing mandatory clause of settlement establishment is bound to maintain the service of the appellant for further two years but establishment illegally deprived the petitioner of his right guaranteed with mala fide intention; while in a number of cases, services of employees under said clause has been extended. Further contended that, depriving the appellant resulted into discrimination and mala fide. The respondent has violated the section 25 of PIRA, 2010. Hence the appellant served the respondent with a grievance notice on 4.12.2013 and prayed that the order dated 31.12.2013 may very kindly be declared violative of settlement and respondent may be directed to extend the service of the appellant for further two years under clause 19(C) settlement.

3. Further contended that the appellant, Ikram Haider, filed a grievance petition under section 33 of PIRA, 2010 read with Standing Order, Ordinance (Amendment Act), 2012 contending therein that appellant was appointed as a permanent worker in March 1993 and has been serving the respondent company till today; the appellant's service career was excellent and unblemished has been ordered to be retired on 31.12.2014; the date of birth of appellant is 7.7.1954 and after age of 60 years he has to reach the age of superannuation on 6.7.2014 and under agreement his retirement was deferred and has been ordered to take effect of retirement on 31.12.2014; the appellant submitted an application to Deputy Manager on 20.11.2014 requesting therein that in view of clause 19(C) of the settlement dated 9.5.2009 his retirement may be extended for further two years and in view of the agreement providing mandatory clause of settlement, establishment is bound to extend the service of the appellant for further two years but establishment illegally deprived the petition of his guaranteed right with mala fide intention; while in a number of cases, services of employees under said clause were extended. Respondents attitude towards appellants is discriminating. The appellants have violated section 25 of PIRA, 2010 was served with the grievance notice on 5.12.2014 request that order dated 1.12.2014 may very kindly be declared violative of settlement and respondent may be directed to extend the service of the appellant for further two years under clause 19(C) of settlement and order dated 1.12.2014 may be set aside.

4. The appellants assailed their grievance through representations, but the respondent department rejected their representations.

5. Feeling aggrieved from the order of department, the appellants filed their grievance petitions before the learned Labour Court but the grievance petitions also met the same fate and learned Labour Court dismissed the grievance petitions and maintained the order of department.

6. Hence these appeals on the grounds mentioned therein.

7. Arguments of both the sides heard and record perused.

8. Both the appellants have assailed the impugned orders passed by learned Punjab Labour Court No.6, Rawalpindi on the same grounds and contended that in various cases, duly narrated in the grievance petition, the respondent company itself has acted upon and implemented the clause 19(C) of the settlement of 2009 till 2013/14, but appellants have been treated with mala fide intention. Further contended that discriminatory treatment has been extended to the appellant's case with a view to victimize the members of rival union. The act of respondent be declared unjust and illegal action because the settlement dated 9.5.2009 remained intact till 16.1.2015, when new three settlements were arrived at between the CBA and Management. Till 15.1.2015 conciliation proceedings before the conciliator were continued between the CBA and Management, and during the conciliation proceedings terms and conditions of service of employees cannot be changed to their disadvantages. Although in settlement of 2009 the period was determined for two years i.e. till 30.6.2010, a fresh charter of demand was raised on 7th July, 2010 on which conciliation proceedings were started which remained in progress and pending before the notified conciliatory (District Officer Labour Jhelum). Since no settlement was arrived at, another charter of demands submitted on 1st` July 2012, conciliation with regard thereto was also commenced by the said conciliator and both the charter of demands remained pending till new three settlements arrived at on 16.1.2015. Hence appeals be accepted as prayed and impugned judgment be set aside.

9. Conversely learned counsel appearing on behalf of respondents vehemently opposed the arguments and grounds of appeal and contended that clause 19(C) of the agreement dated 9.5.2009 has since been rescinded thereafter the claim of appellants are admissible hence, appeals be dismissed.

10. Learned counsel for the appellants has focused his arguments mainly on the grounds that both the appellants served the respondent establishment till their superannuation, thus the appellants are entitle that their services be extended for 2 years under the Clause 19(C) of the settlement dated 9.5.2009 executed between the CBA and the management and in support of his arguments, the learned counsel for the appellant contended that the respondent department had already gave extension in the service of Abdul Raheem, Liaqat Ali Khan, Abdul Rasheed Malik and many others employees on various dates so refusal to extend the service of appellants is a sheer discrimination.

11. During the arguments learned counsel for the appellants could not deny this fact that clause 19(C) of the settlement was rescinded in meeting dated 27.2.2013 held between the establishment and the representative of the CBA who decided that in the light of financial crises of company, clause 19(C) of settlement dated 9.5.2009 was rescinded and as a consequence beyond 60 years no extension was allowed. It was further agreed that clause 19(C) of the agreement dated 9.5.2009 is forfeited from 1.7.2008 to 30.6.2010.

12. Since the settlement ceased to be operative after 30.6.2010. therefore, there is no need to address the question whether it was modified by the Agreement as well as whether the Agreement constitutes a settlement under section 2(xxvii) of the PIRA, 2010. Likewise, the question whether the facility or benefit once granted can be withdrawn or whether a settlement or agreement can be executed to the disadvantage of a worker lose relevance considering that the settlement was not effective and binding after 30.6.2010. This Tribunal also do not agree with the argument of learned counsel for the appellants that appellants extended the service of some of his employees which is a discrimination of employer towards the respondent because the word discrimination involve an element of intentional and purposeful differentiation. It implies an unfair classification.

13. Admittedly, when the service of some of the employees was extended, the agreement had ceased. There was no agreement in the filed, so the extension in the service of some employees could not be termed as discrimination. Rather it was the discretion of employer to extend the service of some of his employees on attaining their age of superannuation. In absence of any statute, rule or agreement. It is a latitude or a liberty, which the employer exercised and extended the service of some of his employees who has attained the age of superannuation.

14. The up short of the above discussion is that the appellants cannot seek the benefits of clause 19(C) of the old agreement on ready/revised. Both the appeals without merit hence, dismissed. HBT/20/PLT Appeal dismissed.