2017 PLP 139 (PLC)

ALI BAQAR NAJAFI, J.

Through this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, order dated 27.06.2016 passed by the Punjab Labour Appellate Tribunal as well as order dated 06.04.2015 passed by the Punjab Labour Court No-2, Lahore had been challenged whereby order dated 13.08.2010 passed by the authority has been set aside.

2. Brief facts giving rise to the filing of this writ petition are that the petitioner was working as Senior Chief Accountant in the respondent-company since 19.09.1992 to 17.11.2008 for a period of 16 years. He resigned on 18.11.2008 due to intimidation, harassment and unworkable environment as claimed by the petitioner and the company made the following payments:-

1. Salary for the month of November, 2008.

2. Pending Medical Bills.

3. Bonus for the year, 2008.

4. Service Gratuity only for the year 2008. At the assurance of making the balance payment the petitioner received Rs.88645/- vide cheque No.9504352 on 05.12.2008 and issued the receipt with the following writing. "I have received cheque No.9504352 amounting to Rs.88645/ -against full and final settlement of all outstanding dues from M/s Engineering General Consultants (Pvt.) Limited dated 05.12.2008 and nothing is outstanding now and no other claim against the company". However, the demand of

1. Payment of Gratuity for remaining 15 years for the period starting from 1993 and ending on 2007.

2. Payment of Leave Fare Assistance (LFA) for 16 years.

3. Payment of pending Bonuses up to year 2007 as per Financial Statements of the Company. was refused by the Company vide letter dated 05.12.2008 which, according to the petitioner, the company has already received in the shape of Over Head and Social Charges and has already been paid to many persons of same status. A grievance notice was therefore, served upon the Managing Director of the respondent-company on 06.01.2009, and on 08.04.2009, a claim was filed before the authority under section 15 of the Payment of Wages Act, 1936 for payment of Rs.1,279,358/- under the following brake up figures:- a. Fifteen Gross Salaries as Gratuity Rs.538,050/- b. Sixteen Basic Salaries as LFA. Rs.382,608/- c. Ten Gross Salaries as Bonus of last Rs.358,700/- 15 years The claim was resisted by the respondent-company and after recording of evidence, the Authority, on 13.08.2010 partly accepted the claim of the petitioner to the extent of Rs.6,09,790/-. This order was assailed by the respondent-Company before the Punjab Labour Court No.2, Lahore under its appellate jurisdiction which was allowed on the ground that the petitioner was not a workman but the Court held that under section 1(4) of the Payment of Wages Act it applies to person employed in a Factory, (Industrial Establishment or Commercial Establishment), etc., but allowed the appeal. This order was further upheld by the Labour Appellate Tribunal vide order dated 27.06.2016, hence this writ petition.

3. Arguments heard. Record perused.

4. After hearing the learned counsel for the petitioner as well as the respondent, it is noted that the question before this Court is as to whether the petitioner was entitled only to the amount he has received on 05.12.2008 as full and final settlement or under section 23 of the Payment of Wages Act, 1936 any payment received under duress can be considered as final payment. It is, therefore, appropriate to reproduce the said section:- Section.23: Contracting out.

Any contract or agreement, whether made before or after the commencement of this Act, whereby an employed person relinquishes any right conferred by this Act shall be null and void in so far as it purports to deprive him of such right. It shows that any adjustment/settlement compulsorily depriving an employee of any right under the Act will be void. While interpreting this section, the Supreme Court of India in Divisional Engineer, G.I.P. Railways v. MAHADEO reported as [AIR 1955 SC 295] held that there is no question of relinquishment of right to claim allowances payable to an employee by the Rules through an agreement between the employer and the employee. Besides, this Court has the jurisdiction to adjudicate upon matter such as the present one in view of Ghulam Mustafa and another v. Pakistan Industrial Gases Ltd. and others [2002 PLC (C.S.) 52] in which it was held as follows:- "It may also be mentioned that the order passed in appeal by the Labour Court under the Payment of Wages Act, 1936 would be subject to review by the High Court under Article 199 of the Constitution. It may also be stated that Labour Court for the purpose of adjudicating and determining any industrial dispute is deemed to be a Civil Court within the meaning of section 36 of Industrial Relations Ordinance, 1969."

5. The petitioner claims gratuity, LFA and bonuses outstanding towards the respondent- Company. To appreciate his claim it is found in evidence that respondent-Company/Engineering General Consultants (EGC) Pvt., 49/D-1, Gulberg-III, Lahore has been in the consultant business having 80 or above persons as employed and therefore, the Company pays the contribution to EOBI under EOBI, Rules, 1976. Besides, the record shows that it is neither charitable nor social services establishment but in business activities for profit. It is amenable to the Labour laws. It encourages and is indulged in human activity other than casual, recreational, or a part time, therefore, is a commercial establishment. It can therefore, be safely concluded that under the Payment of Wages Act, 1936, the Authority under section 15(1) had the jurisdiction to decide.

6. As far as the resignation followed by signing of receipt is concerned; suffice it to say that in evidence it has come that receipt was signed on 05.12.2008 (Mark-2) under protest as the fee of the children of the petitioner was required to be paid immediately, therefore, he was compelled to sign another receipt (Exh.P.2) written and signed by him with his hand.

7. The evidence of the respondent- company also shows that the petitioner was paid bonuses and gratuity meaning thereby that status of the petitioner is that of a workman. Under the law as held by the authority, a bonus of 3 years only in proportionate to the monthly wages could be paid to the petitioner. If he was paid the bonus for 2008, he cannot be deprived from the bonuses for the years 2006-2007 as the record does not show that the establishment did not earn any profit. Obviously, the evidence on the amount paid at the time of Eid-ul-Azha or Eid-ul-Fitr are not the regular bonuses. The Authority therefore, had rightly granted Rs.71,740/- as bonuses for the years 2006-2007, LFA of Rs.3,82,608/- was rightly deducted and as such an amount of Rs.6,09,790/- was lawfully awarded to the petitioner.

9. In view of what has been stated above, this writ petition is allowed to the extent that order of the Labour Appellate Tribunal and Labour Court are set aside and that of authority is restored amounting to Rs.6,09,790/- in favour of the petitioner. ZC/Z-12/L Petition allowed.