1989 PLC 1001 (PLP)

S.O.12(1)--Industrial dispute--Retirement--Meaning--Termination of service on reaching retirement age--No age of retirement fixed under rules of establishment--Permanent workman retired at the age of 61 years--Retirement, held, amounted to termination otherwise than for misconduct in terms of S.O.12(1) needing one month's notice or pay in lieu thereof. Ch. Ashraf Khan for Appellant. N.N. Baloch for Respondent. Date of hearing: 30th October, 1988. This appeal is directed against an order, dated 14-12-1987, passed by learned Presiding Officer, Sind Labour Court No. V, Karachi, dismissing the grievance petition bearing No. 72/87 filed by the appellant under section 25-A, I.R.O. 1969. The facts of the case leading to this appeal are that the appellant was admittedly employee of the respondents as workman for 39 years when he was retired by the respondents, vide order, dated 26-3-1987. The appellant aggrieved by this order filed the grievance petition before the learned Labour Court alleging therein that he had been victimised because of his trade union activities and, therefore, had been prematurely retired at the age of 59 years while some workers had served the respondents even upto the age of 75 years. The respondents, in written statement, admitted that there were no hard and fast rules in respect of retirement of the employees, but, had denied that they had victimised the appellant because of his trade union activities and also raised the plea that the appellant is not a workman, but, a Supervisor and, therefore, the provisions of Industrial Relations Ordinance were not applicable. The learned Labour Court came to the conclusion that the appellant was not a workman and further that he was not retired with any mala fide intention or with ulterior motives, but has been retired in the due course. 2. have heard Mr. Ashraf Khan, the learned Advocate for the appellant and Mr. N.N. Baloch, the learned Advocate for the respondents and have also perused the record and proceedings of the Court below. The appellant in his affidavit-in-evidence has stated on oath that he is a workman and has been performing the clerical job alongwith other clerks, under the directions, control and supervision of the officers deputed from Kabul. In his cross-examination, he has denied that he was working as a Supervisor. He admitted that he had been supervising the work of labourers at the Port for shifting and sorting. It may be pointed out that the respondents had examined no evidence in rebuttal. The statement on oath of the appellant that he was performing clerical job has gone unrebutted. The mere fact that alongwith his clerical job, he was also supervising the work of the labourers at the port for shifting and sorting would not make him as supervisor. No evidence was produced by the respondents by way of producing the record to show hat the appellant was a Supervisor. Non-production of the record would raise presumption against the respondents because it was in the possession of the respondents and no presumption can be raised against the appellant for non-summoning such record. The appellant had asserted on oath that he was doing clerical job and as such the burden shifted upon the respondents to prove that he was Supervisor and not a clerk. Under the circumstances, I disagree with the findings of the learned Labour Court and hold that the appellant was a workman as defined in the I.R.O. 1969. 3. Admittedly the appellant remained as a President of the Union for 10 years upto 1974, but, he was not victimised. Admittedly none of the present office-bearers of the union are victimised. From the Identity Card, the age of the appellant at the time of retirement was 61 years. Normally the retirement age of Government servants is 60 years, but, admittedly no age of retirement under the rules is fixed by the respondents bank for its employees. In other words, it is left to the sweet will of the respondents to decide as to whether a particular employee had reached the age of retirement. Apparently appellant has not been victimized as alleged by him. 4. The order under which the appellant was retired praises the services of the appellant, but, states that as he had reached the age of retirement, his services were no more required by the bank with effect from 4-4-1987. 5. As no age of retirement is fixed, the employees of the respondent bank had no knowledge as to when they would be retired. Under the circumstances, the retirement would be considered as termination of service. The word `retire' has been defined in Black's Law Dictionary as "termination of employment of service on reaching the retirement age". Thus, the provisions of Standing Order 12(1) would be applicable in the case of the appellant in view of the fact that no retirement age was fixed under the rules. If the services of a permanent workman are terminated for any reason other than misconduct, a month's notice is to be given either by the employer or by the workman or one month's wages calculated on the basis of average wages earned by the workman during the last three months shall be paid in lieu of notice. 6. Admittedly no notice was served upon the appellant. The order terminating the services of the appellant shows reason of termination viz. that he had reached the age of retirement. It is not a misconduct. As such the appellant was entitled to notice for one month or one month's wages in lieu of notice under Standing Order 12(1). If no reason had been shown in the order, the order would have been considered as illegal and void. However, in view of the fact that the reason shown in the order is not a misconduct in my opinion, the appellant is entitled to one month's salary in lieu of notice. The appeal is partly allowed to the extent that the respondent is directed to pay one month's salary to the appellant in lieu of notice. A.E./1335/Lb.S Appeal partly allowed