1988 PLP 151 (PLC)

Claim of Rs. 17,000 has been preferred against Tobacco International Ltd. on the basis of agreement dated 1‑1‑1985 by which it was agreed, that on the closure of the establishment, the workers will be paid their legal dues in batches.

2. Applicant claims Gratuity, unpaid wages, bonus and Workers Participation Fund taking into period of service of six years on the monthly salary of Rs.1, 400.

3. Respondent Tobacco International has taken two legal objections, one of the maintainability of the application under section 51, IRO, secondly non‑service of the notice of grievance and thirdly the application being time barred.

4. On the facts, as contended the stand taken by the respondent is that applicant was supervisor and not a workman. The factory was not in operation since July 1983 and, therefore he is not entitled to gratuity, bonus, Workers Participation Fund and unpaid wages. The respondent has shown his salary of Rs. 1,477 as a section man. REASONS:

1. The first objection is raised that notice of grievance is mandatory requirement under section 51, IRO. The contention of the respondent is not tenable, for the provision of section 51, IRO, as the Court understands from the language used therein, it is in the nature of the process of execution recovery of the ascertained amount to the person entitled or any workman to derive the benefit under settlement, award or decision of the Labour Court or Tribunal, as the case may be. So this is not the provision under which, the declaration is sought under section 25‑A in respect of the right secured or guaranteed. In section 25‑A the notice of grievance is supposed to be the main requirement.

2. The second contention is, that applicant is not a workman for the purpose of the application of subsection (2) of the IRO and, therefore, he cannot come to seek the recovery of the benefits unless he has sought the declaration from the Labour Court under section 25‑A.

3. In the first place, this position is undoubtedly confirmed from the Union's subscription that he was workman but subsequently promoted as a section man on 1st of May of 1981. In other words his position has been shown as of supervisory nature:

4. The Court has examined the settlement from which the benefit is sought. This document is very clear that the management agreed to pay the legal dues to the employees on the closure of the factory with the concurrence. The words legal dues and all employees are used in the context. There is no limitation or the restrictive clause that except the workman, no other employee, will be entitled to the dues. The obvious intention appeared to be that on the closure of the factory the management desired to clear the dues of all employees, whether be supervisor, workman or section man or of any other category.

5. The word legal dues also cannot be interpreted differently but interpreted in the legal sense. If the word dues would have been used as expressive in the entire recital of the settlement, the position would have been to refer purely to the salaries of which the caluses of settlement made the, mention. The word legal dues, therefore, in the view of the Labour Court, are those dues which are recognized by law namely the wages, salaries, leave encashments but not the bonus and the Workers Participation Fund which are taken from the profit. In other words the dues entitlement of a workman or of employee as a right are claimed to cover pure wages or salary in the case of supervisors or ordinary workman and the dues like leave on encashment and the gratuity. These are the rights of employee followed by the operation of law that after he joins the employment he receives these benefits even at the time of retirement or severing relationship from the company willingly. Bonus is also the statutory right under 10‑C of Standing Orders, but it is given from the profit. Other benefits stated above cover the wages as the dues going with the employment. There may be profit or there may be loss but the wages are to be given as a right what is guaranteed as a remuneration for the work done and other entitlements namely the leave under the Factory Act and the gratuity which is the total dues of the whole time service based on the one month's wages as admitted by the company itself.

6. Therefore, in the facts of the matter, Mr. Muhammad Yousuf has claimed 17,000 as a claim towards the gratutity, the unpaid wages, bonus and Workers Participation Fund.

7. Respondent has shown the claim of Rs.3827.95 showing the date of appointment from 16‑6‑1979. The date of termination 1‑1‑1985. The period of service five years. The salary unpaid at 50% for October, November, December and the half bonus of 1983 and 5% Workers Participation Fund pf 1985. In all the total amount is shown 3827.95 on the basis of the salary of 1,477.

8. If this is an admitted position that factory was not working since July, 1983 no bonus can be granted when no profit was made during non production. This is an accepted position confirmed from the Excise Department.

9. Regarding Workers Participation Fund the Court has seen the settlement. The words are legal dues. Dues do not pertain to profit. The applicant cannot claim as right. But if it is granted of 1981 h C has to accept it for the remaining years if factory was not working from July, 1983, there is no question of Workers Participation Fund because it also depends on what the profit was earned to be distributed among the employees.

10. Regarding period of service, the period of service has been shown as five years. Applicant has claimed six years service. He has ?referred no particulars. The appointment order shows that Mr. Muhammad Yousuf is appointed on 18‑6‑1979. Factory was closed down on 1st of January 1985 terminating the services following the settlement. So period of service is to be counted, in that legal perspective.

11. Regarding gratuity it has been stated that Provident Fund was being deducted and, therefore, no gratuity is payable. The statement of account does not show the details of gratuity. Under Standing Order 12(6) it is provided that no gratuity will be payable if the Provident fund is in existence.

12. The interesting feature of the case is, neither the employer has made any mention about the amount computed, towards the Provident Fund, in statement of accounts R/20, nor the applicant Muhammad Yousuf has given the statement of the details to show of the deduction of Provident Fund, which otherwise applicant has not claimed in his main petition that his provident fund was being deducted, with reference to Para 6 of his petition. But the employer has seen the weekness of applicant Muhammad Yousuf in the evidence where he has shown that he is a member of C.B.A. and he used to subscribe provident fund. This was answer to the question put by the respondent's counsel to the witness directly.

13. It is on this admission, the Court has considered the effect whether the provident fund was actually deducted or the witness misunderstood the question regarding deduction of the Union's subscription. Since the justice is the main concept, in the matter, the Court has considered the entire evidence as a whole that what employer has said about the deduction of the provident fund to take the advantage of the added proviso of 12(6) Standing Orders that gratuity will not be payable if provident fund is being deducted by the employer.

14. Throughout the averments of the employer, the employer has not disclosed how much provident fund was deducted of Muhammad Yousuf to which he also made contribution. His own statement in R/20 is the positive proof that the employer has not touched this aspect showing the details of the deduction when the books of accounts are always in possession of the employer. R /20 has given the details of salary, bonus, participation fund but made no reference of the deduction of provident fund. Obviously there seems error. Firstly the Court was deferring the issue that both parties to produce the books of accounts. But if the requirements of justice are satisfied that employer has not shown any details and his statement of accounts in Exbt‑R/2a, there was no deduction of provident fund and the gratuity is payable.

15. In the result, the employer will deposit, in the Court, the amount of unpaid wages of October, November and December, 1984 on the basis of salary of Rs.1477/O1, and the half month's bonus which employer has agreed to pay what has been earned and the participation fund of Rs.128.95 agreed by him to be payable and the gratuity from the date of appointment till date of termination as detailed out in Exbt‑R/20 of the statement of accounts furnished by employer.

16. The application is allowed to the extent what the Court has observed, to be granted as relief. Order accordingly. A. E. /993/Lb.S??????????? Application partly allowed.