1976 PLP 171 (PLC)

The petitioner/complainant Qamar Din, who was formerly a bus driver of the Lahore Omnibus Service, Lahore, which is under the administrative control of the respondent authority, namely the Road Transport Corporation, Lahore has instituted this complaint in the present Industrial Court, under Standing Order No. 18(b) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 . The petitioner has stated that he was first employed as a bus driver by the Lahore Omnibus Service, Lahore, on the date 20th of October, 1948. Eventually on the date 20-6-1968 the petitioner was retired from service by the respondent without having been given by one month's notice in writing or one month's wages in lieu of such a notice, and he was also not paid any gratuity by the respondent. At the time of his retirement the wages of the petitioner amounted to Rs. 205 p.m. plus an allowance of Rs. 30 p.m. After a great deal of correspondence had taken place between the petitioner/complainant and the respondent the District Manager, Lahore Omnibus Service, Lahore, passed his office order No. 3670, dated 20-11-1968, by which he decided that gratuity should be paid to the petitioner from the date on which he was first recruited (i.e. 20th October, 1948). Nevertheless, ire actual fact the petitioner was paid his gratuity from the date 1-11-1957 only. The petitioner has further averred that only an amount of Rs. 830 has been paid to him as a gratuity for the period 1-11-1957 to 24-6-1968 although according to the petitioner's calculation the arrears of this gratuity amount to Rs. 3,

170. It has also been pointed out by the petitioner that he had never tendered his resignation from service but had requested the respondent authority to appoint him as a jeep-driver or, alternatively, retire him from service. The respondent authority reacted to this request in the form of retiring the petitioner from service but it terminated the petitioner's service without any notice of one month or one month's wages in lieu of such a notice. Consequently the respondent authority owned the petitioner/complainant an amount of Rs. 205 as one month's wages. On the other hand the petitioner has remarked that he was entitled to 34 days leave per annum of full wages and was also entitled to 15 days' leave per annum on half wages, nevertheless through the period of his service he was never granted leave by the respondent authority who invariably put forward the plea that there was shortage of workmen and it suggested every year to the petitioner to postpone the taking of leaves. As a result of these circumstances the petitioner's health deteriorated, nevertheless at the time of terminating his service the respondent authority had not granted wages to the petitioner in lieu of leave to which he was entitled, but which he was never allowed to avail himself of. According to the reckoning of the petitioner he is entitled to an amount of Rs. 6,560 as arrears of wages in lieu of leave nevertheless the respondent authority indicated to the petitioner that only Rs. 136.87 were due to him and even this small amount was not paid by the respondent to the petitioner. The petitioner claims to have served a notice on the respondent authority on the date 1-9-1969 under Standing Order 18(a) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, nevertheless the respondent did not hold any enquiry into the matter nor did it hear the petitioner in person nor send any reply to his notice. In view of the above-stated facts the petitioner Qamar Din has prayed that this Court might order the respondent authority, i.e. the Road Transport Corporation, Lahore, to pay him in full all the arrears of `gratuity and of wages due to the petitioner/complainant which, according to the petitioner's computation, worked out to an amount of Rs. 10,

035. A reply was filed on behalf of the respondent to the petitioner s com plaint under consideration. In this reply a preliminary objection has been raised to the effect that the petitioner is barred by time hence it is not maintainable under the law. No provision of the law was, however, cited in support of this objection, and no facts were brought to the notice of this Court from which the validity of such an objection could be inferred. On the other hand as far as the fact of the case are concerned the respondent stated in the reply that the petitioner himself had applied for retirement from service because he had attained the age of retirement and this request of the petitioner was accepted and be was retired from the service of the respondent authority. According to the respondent the petitioner was paid whatever gratuity was due to him in accordance with law. (In this context it may again be mentioned that no law was cited by the respondent in support of this assertion). The respondent also submitted that there was no provision of the law under which the respondent authority was bound to pay the petitioner his gratuity from the date of his first appointment, hence the respondent had paid the petitioner his gratuity from the date 1-11-1957. The respondent also maintained that there was no provision in any relevant rules for giving the petitioner any wages in lieu of a notice or of any leave. On all these grounds the respondent prayed for the dismissal of the petitioners' complaint. I have heard the arguments of the petitioner's Representative in support of this complaint and the counter-arguments of the respondent's Representative. The Representatives of both parties also submitted their detailed written arguments, which have been placed on the relevant record. The original application of the petitioner Qamar Din, which has been regarded by the respondent authority as an unqualified request for his retirement, is Annexure A on the record of this case. The relevant portion of this application is worded as follows: The above-cited application of the petitioner does not bear any date but some officers of the respondent authority has initiated it on the date 13-8-1968 and recorded a note to the effect that the petitioner should be retired as requested. It is abundantly clear from the above-cited working of the application that be made an unqualified request to the 'respondent authority for his own retirement from service and he himself did not consider it necessary to give a one month's notice to the respondent under Standing Order No. 12(1) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 regarding the termination of his employ ment. Furthermore although no complaint lies under Standing Order No. 18(b) against an order of termination of the employment of a workman who is not an officer of a registered Trade Union yet even such a workman is entitled to file such a complaint under Standing Order No. 18(b) of that Ordinance if he feels that be has been deprived by his employing authority of any benefits accruing to him under the West Pakistan Industrial and Com mercial Employment (Standing Orders) Ordinance, 1968. It is now, there fore, to be determined in this case whether, or not the respondent authority has deprived the petitioner of any benefits accruing to him under this Ordinance. The provisions of clause (1) of Standing Order No. 12 of the above-mentioned Ordinance are worded as follows: (1) For terminating employment of a permanent workman, one month's notice in writing shall be given either by the employer or the work man. One month's wages calculated on the basis of average or wages earned by the workman during the last three months shall be paid in liue of notice. On the other hand the provisions of clause (5) of Standing Order No. 12 of the same Ordinance contains the following imperative provisions (5) Where the services of a permanent workman are terminated for reasons other than misconduct, he shall, in addition to the wages payable to him under clause (1) be paid gratuity equivalent to fifteen days wages for every completed year of service or any part thereof in excess of six months; provided that no such gratuity shall be payable in case where the employer has established a Provident Fund to which such workman is a contributor, and the contribution of the employer to such Fund is not less than the contribution made by the workman. The case of the petitioner has to be considered impartially in the light of the above-cited respective provisions of clauses 1 and 5 of the Standing Order No. 12 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 . At this stage I consider it proper to produce the relevant portion of the order passed on 21-6-1968 by the District Manager, L. O. S., Lahore. under the authority of the respondent, i.e. the Road Transport Corporation, Lahore regarding the retirement of the peti tioner Qamar Din. That order was worded as follows: Mr. Qamar-ud-Din Driver/T/724 of L. O. S. Lahore, has attained the age of superannuation i.e. 55 years. He is, therefore, retired from this service under serial No. 33 2 of R. T. C. Service Rules on his own request with effect from 24-6-68 (F. N). Even a cursory glance at the above-quoted order of the District Manager, L. O. S. Lahore, is enough to show that the officer who passed the order dial not care to comply with the mandatory provisions of clause 1 of Standings Order No. 12 of the above-mentioned Ordinance inasmuch as he did not appreciate the fact that retirement of a permanent workman was one of the form in which his employment could be terminated by his employing authority and in view of this circumstance it was incumbent on the terminating authority to give ,q a one month's notice in writing to that workman or to pay that workman one month's wages calculated on the basis of the average of the wages earned by him during the preceding three months. The mere fact that a workman has suggested that he might be retired from his employment does not absolve the employing authority from complying with the requirements of the law as enunciated in Clause 1 of Standing Order 12 of the relevant Ordinance. In view of these facts I order the respondent authority to pay to the petitioner Qamar Din, ex-driver, in lieu of the one month's notice that should have been given to the petitioner in writing by the respondent one month's wages calculated on the basis of the average of the wages earned by the petitioner Qamar Din during the three months that immediately preceded the date of his retirement from service (24-6-1968). That amount shall be calculated exactly by the respondent authority and paid to the petitioner within at most thirty days from today. There is no indication in the West Pakistan Industrial and Commercial. Employment (Standing Orders) Ordinarce, 1968 , that a workman is entitled to any sort of leave or any wages in lieu of such leave. Even if the petitioner Qamar Din was entitled to any such benefits under the Service Rules yet according to the provisions of Clause (b) of Standing Order No. 18 of the Ordinance he is entitled to complain to this Industrial Court only against his deprivation of the specific benefits accruing to him under this Ordinance. In view of these plain facts the present Industrial Court cannot legally order the respondent authority to pay to the petitioner/complainant Qamar Din any amount of money as arrears of wages in lieu of any leave to which the petitioner might be entitled under his Service Rules during the period of his service, as he has requested in paragraphs 7 and 8 of his complaint under consideration. However the provisions of Clause 5 of Standing Order No. 12 of the above-mentioned Ordinance, which has been reproduced above, are obviously binding upon the respondent authority. According to those provisions of the law whenever the services of a permanent workman are terminated by the appropriate authority for any reasons other than misconduct that authority is under a legal obligation to pay to that workman in addition to whatever wages might be payable to him under Clause 1 of Standing Order No. 12 the full amount of the gratuity that has fallen due to the workman concerned during the entire period of his service at the rate of 15 days wages for every completed year of service or any part thereof in excess of six months. The respondent's Representative has explicitly admitted that the petitioner was first employed by the Lahore Omnibus Service, on the date 24th of October, 1948. The West Pakistan Road Transport Corporation is undoubtedly the legal successor of the old Lahore Omnibus Service, which C first employed the petitioner Qamar Din on the date 24th of October 1948 and the Lahore Omnibus Service Lahore is at present under the control o the Road Transport Corporation. In view of these circumstances there is no substance whatsoever in the contention of the respondent that the respondent is required to pay gratuity to the petitioner at the prescribed rate only from the date the Road Transport Corporation came into existence. The service of the petitioner Qamar Din from the date 24th of October 1948, until 24-6-1968 is obviously of a continuous nature and is without any gaps of time. It is, therefore, in the fitness of things that the respondent authority should pay to the petitioner Qamar Din his arrears of gratuity of his entire service from 24th October 1948, until the 24th June 1968 until the 20th of June 1968 ' at the rate of 15 days' wages for every completed year of service or any part thereof exceeding six months. The exact amount of these arrears shall be calculated by the respondent authority and paid to the petitioner Qamar Din within the maximum period of 40 days from today. The complaint of the petitioner Qamar Din has been accepted by me to the extent specified above. The respondent, i.e. the Road Transport Cor poration, is hereby directed to comply with the above-recorded order of/ this Court within a period of 30 days from today. Order accordingly.