1989 PLP 373 (PLC)

‑‑‑Wages beyond superannuation age‑‑Railway employee facing criminal trial and placed under suspension, reaching superannuation age but not retired due to pendency of trial from which he was ultimately acquitted‑‑Labour Court accepting grievance petition, allowed claim for salary and allowances for suspension period‑-Plea appeal that (i) employee had not worked on account of being under suspension and (ii) he was not retired on account of pendency of criminal trial though he had attained superannuation age, and hence was not entitled to wages for period from which his retirement had become due, repelled‑‑Order of Labour Court was maintained by Appellate Tribunal‑‑ since administration allowed respondent employee to continue in service and did not retire him even though he attained superannuation age he was entitled to wages for such period‑‑Industrial Regulations Ordinance (XXIII of 1969), Ss.25‑A & 38(3). Abdul Majeed Sundhu for Appellants. H.R. Haider for Respondent. Date of hearing: 4th July, 1988. The appeal captioned above emerges from the decision dated 13‑4‑1986 recorded by learned Presiding Officer, Punjab Labour Court No.3, Lahore at Ferozewala whereby the respondent was directed to be paid salary and allowances for the period he remained under suspension due to the pendency of a criminal case against him from which he was ultimately acquitted. Previously the appeal was accepted on the point of jurisdiction following 1985 P L C 1053 and the grievance petition was directed to be returned to the respondent directing that if the Hon'ble Supreme Court held that the persons who were not in service on the date on which they had brought their grievance petitions are covered by the definition of workman given in section 2(XXVIII) of the Industrial Relations Ordinance, 1909 the decision of the learned lower Court would stand confirmed. The appeal was again taken up on a miscellaneous application on behalf of the appellant on the ground that after the Hon'ble Supreme Court had remanded the cases in which the question whether the persons who were not in service on the date on which they had brought their grievance petitions were not workmen, the High Court held that the applications for challenging the order of removal from service were to be deemed as industrial disputes, therefore, the labour Courts were competent to hear such petitions. Since this Tribunal had already directed that if the Supreme Court held that the persons who were not in service on the date on which they had brought their grievance petitions were covered by the definition of `workman' the decision of the Labour Court dated 13‑4‑1986 would stand confirmed, therefore, there was no occasion for the appellant to ask this Tribunal for the re‑decision of the appeal. The appeal stood finally decided vide order dated 19‑10‑1986. While arguing the appeal previously it was submitted by the learned counsel for the appellant that since the respondent had not worked on account of being under suspension, he was not entitled to the wages for that period. Now he has argued that on account of the pendency of the criminal case, the respondent was not retired even though he had reached the age of superannuation, therefore, he is not entitled to the wages for the period from which his retirement had begun. Since this argument was not previously advanced, I feel necessity to answer it. Since the appellant allowed the respondent to continue in service and did not retire him even though he had reached the age of superannuation, he is entitled to the wages of the said period. The argument that since legally the respondent could not continue in service after he had reached the age of superannuation he is not entitled to the wages, has no force. The respondent has remained in service not forcibly or by deceitful means beyond the date on which he had reached the age of superannuation and on the contrary the appellant had not intentionally retired him he is entitled to the wages. Learned counsel has also argued that according to the rules the respondent could not be retired on reaching the age of superannuation since a criminal case pending against him in which he had been suspended. No such rule has been shown to me. The rule is that if during the pendency of any criminal case or departmental enquiry an employee gives his resignation the employer may refuse to accept it and may wait for the final decision of the criminal case or the departmental enquiry. Of course, where an employee seeks premature retirement and some enquiry or criminal case is pending against him, the employer has the discretion to disallow the prayer, but this is not the case here. According to the appellant the respondent had reached the age of superannuation and since he was not retired by the appellant and was retained in service, he is entitled to the wages. The learned lower Court thus in these circumstances of the case rightly, accepted the grievance petition of the respondent.

2. As a result there is no force in the appeal which is again dismissed. A.E./572.Lb.P. Appeal dismissed.