2009 PLP 378 (SCMR)

ZIA PERWEZ, J.

Leave to appeal was granted by this Court on 22-1-2007 to examine the question regarding the effect of Notification dated 26-9-1997 issued by the Government of Punjab, Labour and Manpower Department, Lahore under section 8 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, hereinafter referred to as "Ordinance, 1968", whereby the Punjab Road Transport Corporation was exempted from the said Ordinance, therefore, the Labour Court and High Court were not justified in granting relief to the respondents in relation to the benefits and dues in all the above appeals.

2. Appellant No.1, Punjab Road Transport Corporation aggrieved by the common judgment, dated 2-11-2006 of the Lahore High Court in Labour Appeals Nos.387 and 388 of 2003 upholding the judgment of the Labour Court No.1, Lahore, whereby application under section 51 of the Industrial Relations Ordinance, 1969, hereinafter referred to as "I.R.O.1969" were accepted with direction for payment of benefits and dues to the respondents in pursuance to collective settlement and benefits accruing therein while deciding petition under section 51 of the I.R.O. 1969.

3. On 26-9-1997, the following notification was issued by the Government of the Punjab, Labour and Manpower Department, Lahore, hereinafter referred to as "the said Notification":

"No.PS(SI&M)5489/97.

In exercise of the powers conferred by section 8 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the Governor of Punjab is pleased to exempt the Punjab Road Transport Corporation from the provisions of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, on the following grounds:

(i) The Punjab Road Transport Corporation was designed to provide transport facilities to citizens. The Corporation has instead suffered huge losses and despite the fact that substantial amount from the public exchequer was provided to the Corporation for the purpose. It has failed to provide services to the citizens. It is also under heavy debt and has become a recurrent liability. It is, therefore, imperative that the Corporation is closed without any loss of time to save the Government from further financial loss and to prevent wastage of public money. Keeping this in view it has been decided to disband the Corporation and give offer of golden handshake to the workers inclusive of commutation and other allowable benefits. Some workers are, however, interested in thwarting the scheme of the Government. The management, therefore, has reasons to proceed against the employees who refuse to avail of the golden handshake being offered to them. (ii) That the Government of the Punjab proposes to establish an alternative Public Transport System to provide immediate relief to the citizens and the observations of procedure laid down in the Standing Order II-A of the Schedule to the "West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968" is likely to cause delay in implementation of the decision. (iii) That it is expedient to allow exemption under section 8 of the Ordinance (ibid) with a view to enable the management of the Punjab Road Transport Corporation to operate as per above. (iv) That the steps taken by the Government with regard to closure of establishment are in public interest." (2) This order will come into force with immediate effect."

4. The termination of services of some of the employees of the appellants was set aside by the Lahore High Court in I.C.A. No.1109 of 1998. The findings were set aside by this Court vide order, dated 16-9-1999 in Civil Petitions Nos.781-L to 785-L and 788-L of 1999.

5. Present respondents along with other employees approached the Punjab Labour Court No.1, Lahore by way of applications under section 25 of the I.R.O. 1969. By common judgment their applications were allowed with direction for payment as prayed, followed by the impugned judgment of the High Court upholding the orders.

6. The contention of Mr. Muhammad Arif Raja, learned Advocate Supreme Court for the appellants is that the applications were prima facie misconceived in view of the said notification which subsequently, came under examination before this Court in the above said referred cases and finally settled the controversy by the order, dated 16-9-1999. The West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 provides for the minimum standard by the Government of the Punjab in exercise of its powers as conferred under section 8 of the Ordinance, 1968 which were withdrawn with respect to the employees of the appellants. As a consequence of the said Notification even the minimum rights of employees protected by law were substituted by the terms of Golden Handshake Scheme. That the minimum rights available under the Ordinance, 1968 conferred upon the employees of the establishments concerned being statutory in nature stand on a higher padestal as compared to contractual obligations arising out of settlement through the collective bargaining which are in addition to such minimum benefits. The said Notification issued according to the provisions of the Ordinance, 1968 which are statutory in nature, as a consequence whereof enforcement of benefits under settlement would no longer be enforceable in the facts and circumstances of the present case, therefore, the impugned orders are liable to be set aside. The learned counsel appearing for the respondents while supporting the impugned judgment of the learned High Court, has contended that the learned High Court has given its decision by appraising the relevant record and law.

7. The basic benefits of the employees working in establishment under the Ordinance, 1968 being statutory in nature are enforceable together with such further benefits as may by conferred by the settlement. However, no settlement can be presumed to have an effect overriding that of statutory rights. As a consequence of the said Notification even the minimum rights of employees protected by law ceased to exist. They were substituted by the terms of Golden Handshake Scheme. That the minimum rights available under the Ordinance, 1968 conferred upon the employees of the establishments concerned being statutory in nature stand on a higher padestial as compared to contractual obligations arising out of settlement through the collective bargaining are only an addition to such minimum benefits. Therefore, the proceedings under section 51 of the I.R.O., 1969 for enforcement of the terms of settlement which become unenforceable cannot be maintained. The question of emoluments and payments in the circumstances of the present case where the claim also included the benefits accruing to the employees in pursuance of the settlement have already been examined by this Court vide order, dated 16-9-1999. The case of the respondents being similar on all fours to those in the aforesaid petitions already decided by this Court except for discrimination with respect to the job and length of service does not call for different treatment. Therefore, following relief granted by this Court vide order, dated 16-9-1999 are also attracted to the present cases and in the manner laid down hereunder:

"(i) The petitioners are allowed to submit their applications on the prescribed form under the Golden Handshake Scheme within fifteen days from today, is so desired. Such applications, if submitted, shall be deemed to have been submitted before the target date as contemplated by paragraph 4 of the Golden Handshake Scheme. (ii) Those petitioners not accepting the Golden Handshake offer shall be deemed to have been retired, subject to their eligibility for retirement as laid down by the rules/regulations/instructions of the Corporation, and while calculating the pension and other payable dues no deduction shall be made on account of late submission of pension papers and also the salary paid to them till 30-9-1997 shall not be deducted. (iii) This order shall not be applicable to those petitioners who have already submitted their pension papers to the Corporation. (iv) The payment due to the petitioners shall be made by the respondent-Corporation as expeditiously as possible but not later than three months from the filing of the requisite papers. (v) This order is confined to these petitions alone."

8. For the foregoing facts and reasons, these appeals are allowed both the impugned judgments are set aside and the above cited appeals are disposed of in above terms. H.B.T./P-9/SC Appeals allowed.