1979 PLP 332 (PLC)

5. In the case of Messrs Luxury House (Firm), Dacca v. First Labour Court, East Pakistan, Dacca and others (P L D 1969 Dacca 410) it was observed : ‑

. "Evidently section 22 bars a Court to entertain any suit for the recovery) of wages and the "Court" referred to appears to us to be a "Civil Court" and not a Court of the special description as the Labour Court ''The proceeding before the Labour Court under section 25 of the Stand ing Orders Act is not a suit. In our opinion, therefore, section 22 of the Payment of Wages has no application to the present case."

6. In the case of Americano Dry Cleaners, Karachi v. Abdul Karim (1976 P L C 575) it was observed; "Mr. S. H. Chishti, the learned representative for the Respondent, con tends that an application under section 25‑A of the Ordinance cannot be said to be a suit for recovery of wages. There is much force in this contention. Labour Courts are not civil Courts. They have only certain powers of a civil Court in certain matters. I would hold that the application under section 25‑A of the Ordinance was maintain able."

7. In the case of General Steel Tools Company, Gujranwala v. Presiding. Officer, Punjab Labour Court No. V, Lahore and 2 others (1976 P L C 397) it was held that the Labour Court is not barred to entertain the claim for payment or wages.

8. In view of the above, I find no force in the preliminary objection raised by the learned counsel for the respondent, which is hereby rejected.

9. Now the next point for determination is as to whether the appellant joined service on 15‑4‑1961 or 21‑5‑1969. In this connection the appellant, besides himself, examined Muhammad Yousaf and Abdul Majid. Muhammad Yousaf stated that the appellant had joined service of the respondent in 1961, that there were service books maintained of every employee and that there was also service book of Muhammad Sharif, appellant. He further stated that a register was kept in which there was a date of employment of an employee his photograph and his signatures or thumb impression. In other words, all the entries of the service book are eetered in that register. The photograph of the appellant is in his service book and there are also his signatures in it. In the register the date of employment of Muhammad Sharif was 21‑5‑1969. At the time when the service book was given to the appel lant there was discrepancy in the date of employment of the appellant and of one Muhammad Rafiq. The respondent, however, undertook. to go into the matter. The service book was received by the appellant on 23‑4‑1973. It appears that no application was given by the appellant to correct the date.

10. Abdul Majid stated that the appellant joined service in 1959 and that the service books of all the employees had been prepared. The appellant stated that he joined service in 1961 and resigned with effect from 31‑8‑1977. He admitted that his service book was prepared during his employment but his date of appointment mentioned in the service book was wrong by eight years. He produced two leave cards Exhs. P. 2 and P. 3 maintained under the Factories Act. In one card the date of appointment was given as 11‑4‑1963 and in the other it was given as 15‑4‑1961. None of these cards bear the signatures of anybody. He admitted that he did not submit any application in writing to correct the date of entry in his service book. He also admitted that leave cards Exhs. P. 2 and P. 3 did not bear the signatures of any officer of the Management.

11. In rebuttal Habib‑ur‑Rehman stated that the appellant had joined service on 21‑5‑1969 and that forms Exhs. P. 2 and P. 3 were not issued by the Management, because the forms issued by the Management are always signed by the officers of the Management. According to him, these forms could be obtained from the Bazar.

12. The evidence produced by the appellant regarding his joining of service is discrepant. Muhammad Yousaf stated that the appellant had joined service in 1961, whereas Abdul Majid stated that he had joined service in 1959. According to the appellant himself, he had joined service in 1961.. Moreover, I also find that the appellant, who had received his service book on 23‑4‑73, should have taken concrete steps to have the date of entry of his employment corrected. He admitted that he did not make any application in this respect. In any case the cards Exhs. P. 2 and P. 3 produced by the appellant have no evidentiary value because they did not bear the signatures of anybody. Thus I am satisfied that the appellant joined service on 21‑5‑1969 and not on 15‑4‑61 and would be entitled to gratuity from that date.

13. Now the last point for determination is as to whether the appellant is entitled to gratuity at the rate of fifteen days wages prior to the amendment on 16‑11-1972 and thereafter at the rate of twenty days' wages.

14. The learned counsel for the appellant contended that according to Standing Order 12 (6) of W. P. Industrial and Commercial Employment (Standing Orders), Ordinance, 1968, the appellant would be entitled to gratuity equal to twenty days' wages calculated at the basis of the wages admissible to him in the last month of service if he was a fixed rated workman or the highest pay drawn by him during the last twelve months if he was a piece rated workman, for every completed year of service or any part thereof in excess of six months. Prior to 16‑11‑1972 instead of twenty days wages he was entitled to gratuity equivalent to fifteen days wages without Cost of Living Allowance. From 16‑11‑1972 to 30‑4‑1977 he was entitled to gratuity equivalent to twenty days wages without Cost of living Allowance. From 1‑5‑1977 to 31‑8‑1977 he was entitled to gratuity equivalent to twenty days wages with Cost of Living Allowance for each completed year of service or any part thereof in excess of six months. According to the learned counsel, the amendment by Ordinance LI of 1972, which came into force on 16‑11‑1972 fifteen days wages were changed to twenty days wages and this had no retrospective effect. In this connection he relied on the judgment of the Peswawar High Court in the case Colony Sarhad Textile Mills Ltd., Nowshehra v. Secretary‑cum‑Director Labour, Directorate of Labour, N.‑W. F. P., Peshawar and 3 others (P L D 1976 Pesh. 114) wherein it was observed :‑-- "Now by examining the language of Ordinance 1972, there is nothing in it to show that the Legislature had, expressly or by necessary intend ment, intended to apply it retroactively. Not only this, but in sub section (2) of section 1 of the Ordinance, it is said that "it shall come into force at once". And from this, it would follow that it was intended to be applicable prospectively with effect from 16‑I1‑1972 on which date the Ordinance was promulgated."

15. This ruling, however, was overruled by the Full Bench of the Supreme Court in the case Secretary Labour Deptt., N.‑W. F. P. Government, Peshawar and 2 others (P L D 1978 S C 302), wherein it was observed :‑‑ "As the direction that a workman "shall in addition to any other benefit to which he may be entitled .be paid gratuity equivalent to twenty days wages ..is clear beyond any doubt I would again quote here a passage from Maxwell (p. 28). The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning, if they have acquired one, and otherwise in their ordinary meaning, and the second is that the phrases and sentences are to be construed according to the rules of grammar." As the words "to be construed" in Standing Order 12, as it now stands, are not technical words, we must construe them according to their ordinary meaning, and the ordinary meaning of the words "shall .........be paid gratuity equivalent to twenty days wages .." is very clear. They mean that a gratuity has to be paid at the rate of twenty days wages for every year of service. There is no ambiguity about these words, therefore, we cannot curtail or modify their, ordinary meaning by reference to presumptions for construing ambiguities in Statutes Accordingly, with the utmost respect, I am unable to agree with the view of the Peshawar High Court and I would accept the contention of Mr. Sardar Hussain that all workmen whose services are terminated after the promulgation of the amending Ordinance are entitled to a gratuity at the rate of twenty days wages for every completed year of service as prescribed in clause 6."

16. In view of the above, I hold that the appellant is entitled to gratuity equivalent to twenty days wages for each completed year of service or any part thereof in excess of six months with effect from 21‑5‑1969.

17. The appeal is, accordingly, accepted to the above extent. Appeal party accepted.