2016 PLP 247 (PLC)

ASAD MUNIR, MEMBER.

The Respondent, Muhammad Yousaf, filed an application under section 15(2) of the Payment of Wages Act, 1936, for recovery of Rs.113,400/- on account of gratuity claiming that he had served the Petitioner Company for a period of 18 years from May 1989 till 31.07.2007 when he resigned as Production Clerk. The Petitioner Company resisted the Respondent's claim through its written reply wherein it took the stand that the Respondent was not a workman nor was any gratuity payable as only 18 workmen were employed in the Petitioner Company as well as that the Respondent remained in the service of the Petitioner Company for seven years only and that a sum of Rs.10,000/- was due to the Petitioner Company on account of loan taken by the Respondent. The Authority under the Payment of Wages Act, 1936, Gujranwala, accepted the Respondent's claim by its order dated 06.08.2012 which has been upheld in appeal by the learned Labour Court through its judgment dated 26.04.2013.

2. Assailing the legality of the Authority's order dated 06.08.2012 and the learned Labour Court's judgment dated 26.04.2013, the learned counsel for the Petitioner Company contended that no gratuity was due to the Respondent as he does not fall within the definition of a workman given in section 2(i) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and that in any case the Petitioner Company, having employed less than 50 workers, is not liable to pay any gratuity in view of the second proviso to section 1(4) of Industrial and Commercial Employment (Standing Order) Ordinance, 1968. Learned counsel also argued that there was no proof that the Respondent had rendered 18 years' service to the Petitioner Company and that at the most, the Respondent was entitled to gratuity for 7 years' service. In response, the learned counsel for the Respondent submitted that the Petitioner Company's plea of having employed less than 50 workers cannot be accepted as in its written reply it took the stand that it employed 18 workmen which was contradicted by R.W.1 as he stated that 45/47 workmen were employed in the Petitioner Company.

3. Since the right to receive gratuity is provided by Standing Orders 12(4) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, it has to be discussed first whether or not the Respondent was a workman as defined by section 2(i) of the Ordinance. In para-1 of his application, the Respondent stated that he was employed as a Production Clerk at a monthly salary of Rs.6300/- but in his cross-examination, the Respondent deposed that he was working as a Dispatcher when he resigned from service. However, RW-1 and RW-2, appearing on behalf of the Petitioner Company, stated that the Respondent was a Quality Supervisor and also had the power to hire and fire. No question or suggestion was put to the Petitioner Company's witnesses to dislodge their statements that the Respondent had worked as a Quality Supervisor. In this view of the matter, it needs to be determined whether as a Quality Supervisor, the Respondent fell within the definition of a workman or otherwise. In Muhammad Farooq Textile Mills Ltd. v. Muhammad Yaqoob (2007 PLC 472) a Quality Checker in a textile mills, assisted by two weavers, was declared as a workman in terms of section 2(i) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The nature of work performed by the Respondent appears to be quite similar to that performed by the Quality Checker with the difference that former worked in a woolen mills whereas the latter was employed in a textile mills. In view of the law laid down in Muhammad Farooq Textile Mills Ltd. v. Muhammad Yaqoob, supra, the Respondent's status as a workman as contemplated under section 2(i) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, cannot be disputed but has to be recognized. The argument that the Respondent had power to hire and fire cannot be considered as no documentary evidence was produced to show that such power was ever exercised by the Respondent. As such, I agree with the finding of the learned Labour Court as well as the Payment of Wages Authority that the Respondent was entitled to receive gratuity as he was a workman in terms of section 2(i) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

4. The second issue involved in this case is the length of service of the Respondent. According to the Respondent, he remained employed in the Petitioner Company from 1989 to 2007. The Respondent could not produce his appointment letter but produced his Social Security Card dated 24.01.1996 and Employees Old-Age Card dated 01.08.1994 which show that he was in employment at least with effect from 01.08.1994. Even though the Social Security Card and Employees Old-Age Card do not bear the name of the Petitioner Company, a strong presumption was raised that the Respondent was employed in the Petitioner Company since 01.08.1994. However, the Petitioner Company could have but did not produce any documentary evidence to rebut this presumption. In this regard, the Petitioner Company did not produce the Respondent's appointment letter nor did it produce the record of the social security and employees old age contributions paid by it in respect of its workmen employed during the period in question. In view thereof, it would not be wrong to say that the Respondent remained employed in the Petitioner Company at least with effect from 01.08.1994 till 31.07.2007 wherefor he was entitled to receive gratuity for 13 years' service.

5. Finally, the number of workmen employed in the Petitioner Company is also in issue. In his application as well as his affidavit in examination-in-chief, it was asserted by the Respondent that the total number of workmen employed by the Petitioner Company was in excess of

50. No question or suggestion was put to the Respondent in cross-examination to shake his statement that more than 50 workmen were employed by the Petitioner Company despite the Petitioner Company's stand in its written reply that the total number of its workmen was

18. At the same time, the Petitioner Company's witness, RW-1, contradicted its stand by stating on 30.04.2009 that the number of the workmen employed by the Petitioner Company was 45/47. Such a contradiction exposes the Petitioner Company's stand as to the number of workmen employed by it. Reference may also be made to the Petitioner Company's witness's statement in another case where also a claim for gratuity was made by another employee Israr Ahmed, In the said case, the Petitioner Company's witness, R.W-1, deposed in cross-examination that in addition to 35 workmen employed by it, the Petitioner Company had a number of workmen, employed through contractor, who were working in the Petitioner Company's premises. This statement, having been made on 14.04.2009, cannot be ignored while determining the number of workmen employed by the Petitioner Company as the workmen, employed through a contractor, cannot be excluded when they are working in the same establishment. Keeping in view these facts, it cannot be doubted that the Petitioner Company had more than 50 workmen in its employment wherefor it cannot claim exemption from payment of gratuity under the second proviso to section 1(4) of the Ordinance.

6. For what has been stated above, this revision petition is disposed of in the terms that the Respondent is entitled to gratuity for 13 years' service from 01.08.1994 to 31.07.2007. The impugned judgment/order stands, accordingly, modified. HBT/3/PLT Order accordingly.