1977 PLP 226 (PLC)
EASTERN EXPRESS Co. LTD. Versus FIFTH SIND LABOUR COURT, KARACHI AND ANOTHER
| Citation | 1977 PLP 226 (PLC) |
| Forum / Court | Karachi |
| Bench Members | M. A. Rashid, J |
| Parties | EASTERN EXPRESS Co. LTD. Versus FIFTH SIND LABOUR COURT, KARACHI AND ANOTHER |
| Primary Law | (b) Industrial Relations Ordinance (XXIII of 1969)., (a) Constitution of Pakistan (1973) |
Q1: What are the key laws and sections cited in 1977 PLP 226 (PLC)?
This judgment primarily cites: (b) Industrial Relations Ordinance (XXIII of 1969)., (a) Constitution of Pakistan (1973) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1977 PLP 226 (PLC)?
The case was heard and decided by the Karachi bench comprising: M. A. Rashid, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1977 PLP 226 (PLC) (EASTERN EXPRESS Co. LTD. Versus FIFTH SIND LABOUR COURT, KARACHI AND ANOTHER). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- A. A. Sharif for Appellant.
- M. L. Shahani for Respondent No. 2.
- Dates of hearing: 28th and 29th September 1976.
- But before I deal with the contentions raised by the petitioner firm it is necessary to examine an important objection taken by Mr. M. L. Shabanl, who, though not on the roll of Advocates of this Court, was specially permitted to represent respondent No. 2 by orders dated 29th March, 1976. The objection is in relation to the first contention raised by the learned counsel for the petitioner. Mr. Shabani's contention is that this Court, while sitting in writ jurisdiction has not to act as a Court of appeal. He relies upon Muhammad Hussain Muni v. Sikandar (1) P L D 1974 S 0 139, which lays down the dictum that the phrase `without lawful authority and of no legal effect', as used in Article 98 of the 1962 Constitution is an expression of art and refers to jurisdictional defects, as distinguished from a mere erroneous decision whether of fact or even of law. It is further held that it is well settled that where a Court or Tribunal has the jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law. This dictum of their Lordships of the Supreme Court, with greatest respect, is to be followed. But the question raised in the present petition is not of disturbing a finding of fact merely on the ground of different appreciation of evidence on record. On the contrary the contention raised before me is that the Tribunal below has failed to take into consideration the evidence on record when it came to the conclusion that there was no practice or usage in the petitioner firm of retiring employee attaining the age of 55 years. In cases where the facts brought on record have been Ignored, or where there is misreading of evidence, or it is a case of no evidence, or even where inadmissible evidence has been made the basis of findings of facts, the interference in writ jurisdiction is within the competence of the High Court. Reliance in this regard can be placed on commissioner v. Sher Mohammad (1) 1972 S C M R 395, and Chief Land Commissioner v. Nazar Hussain (2) 1975 S C M R 353, The question would, therefore, be if the finding of fact arrived at by the Tribunal below suffers from any of such defects.
Headnotes / Summary
Art.199-Writ jurisdiction - Finding of fact - Cases where interference with findings of facts in writ jurisdiction is within competence of High Court. In cases where the facts brought on record have been ignored, or where there is misreading of evidence, or it is a case of no evidence, or even where inadmissible evidence has been trade the basis of findings of facts, the interference in writ jurisdiction is within the competence of the High Court. Commissioner v. Sher Muhammad 1972 S C M R 395 and Chief Land Commissioner v. Nazar Hussain 1975 S C M R 3 52 rel. Muhammad Hussain Muni v. Sikandar P L D 1974 S C 139 not applicable.
S. 25-A-Retirement-Mala fide--Workman's dismissal held illegal by Labour Court and workman ordered to be re-instated-Employer taking back workman but sending him on special leave with full salary-Meanwhile employer ordering retirement of workman at age of superannuation (55 years) according to long-standing practice.- Employer, in ordering such retirement, held, cannot be said to have acted in mala fide manner-Unlimited service not guaranteed by any law, award or agreement nor a commercial or industrial concern under legal obligation to retain an employee beyond age of 55 years Workman failing to show if any guaranteed or secured right was infringed by virtue of order of his retirement-Application under S. 25-A, held, not maintainable in circumstances of case-West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 0. 12. Workmen of K. B. & Co. v. Kettlewell Bullen & Co. 1964 L L C 684 not applicable.
Judgment & Decree
(a) All permanent employees of Forbes, Forbes Campbell & Co. Ltd, and its Associate Companies would be retired on their 55th birthday. (8) The Board decided that should it consider necessary in the interest of the Company to retain the services of any of its Managerial Staff, the case would be considered strictly on merit and necessity, in which case the company would enter into a contract on a yearly basis to be decided each year, three months before the expiry of the contract. Dealing with the resolution the learned Presiding Officer came to the following conclusions "The passing of this resolution in October 1970, clearly indicates that prior to that, there was no age limit fixed for retirement, and there was also no evidence produced by the respondent on record that they used to retire the employees on reaching 55 years, prior to the passing of the resolution:" The learned counsel for the petitioner vehemently challenges these conclusions. He contends that there was enough evidence brought on record, both through cross-examination of the contesting respondent and by the petitioners themselves to prove the practice as alleged, which evidence has not been taken into consideration. It is presumptuous to hold, merely on the basis of passage of the resolution, that there was no past practice of retiring the employees at the age of
55. In his cross-examination the respondent had given the names of the following persons, claiming that they had retired long after attaining the age of 55 years :
1. Mr. Simpers. 6., Mr. Nihal Chand.
2. Mr. Haji Hashim.
7. Mr. Abdul Rabb.
3. Mr. Nadir Shah.
8. Mr. Ustad Agha.
4. Mr. Capadis.
9. Mr. Nina.
5. Mr. Wasim. On the other hand the petitioners, through their director K. E. Bankwalla, filed a counter-affidavit claiming that most of them bad retired 15 years previous to the passage of the resolution referred to above, and all of them had retired five years previous to it: and that their retirement came about at the age of
55. It is also claimed that persons at S. Nos. 1 and 5 were never in the employment of the petitioners firm. It was conceded by respondent Fernandes in his cross-examination that all of them had retired prior to the passage of the resolution. The record of these employees was not available with the petitioner firm as according to the affidavit of Bankwalla, all record of the Company which is older than five years is destroyed. At the same: time the petitioner firm filed service documents of the following personnel, showing their retirement at the age of 55:- Name Retired on At the age
1. E. S. Mehta 10-12-1974. 55 years
2. H. A. Ahmedi 18-3,1974.
3. B. P. Chadiali 19-5-1975.
4. Baboo Khan Sadatyar Khan. 7-1-1975.
5. Hussain Syed Zafar. 8-8-1975.
6. U. Menezes. 31-12-1975.
7. Mohammad Suleman. 31-1-1975.
8. Leslie F. D. Sdva. 29-3-1974. All these facts have not been taken into consideration by the learned Presiding Officer of the Labour Court. The inesecapeable conclusion that can be drawn from this evidence is that the long-standing practice of the petitioners firm was to retire its employees at the age of 55, and the resolu tion of 14th October 1970, merely gave concrete expression to such policy. The documentary evidence filed by the petitioner firm establishes it beyond doubt that since the passage of the resolution the consistent policy is to retire employees at that age. The respondent has failed to bring on record any evidence. to show if a different retiring age was the rule at the time he joined the petitioner firm. No employee has a vested right to indefinite continuance in service. Mr. Shahani also conceded that it is for an employer to determine the age of superannuation of its employees. Rules of superan npation, in the absence of any contract to the contrary, would always apply to all existing employees. The Indian ruling reported as Workmen of K B. & Co. v. Kettlewall Bullen & Co. (1) 1964 L L G 684, does not apply to the facts of the present case because the observation in that case was that in the absence of any satisfactory evidence that the rule or retirement at 55 was actually enforced as against prior employees, it could not be said that prior employees accepted such rule. The contention regarding male fide in the order of retirement is urged on the grounds of earlier litigation between the parties. Respondent Fernandes had, in October 1972, reported against one Lal Hussain, an officer of the petitioner firm, alleging that he had been indulging in acts of smuggling etc. That officer was interrogated by the police, but was not proceeded against as his goods, seized by the Customs authorities earlier, were released. This conduct of Fernandes was calculated to amount to misconduct and he was dismissed after the formalities of Inquiry etc. This dismissal was challenged by Fernandes before the Junior Labour Court, who held it illegal and he was ordered to be re-instated. Appeal having failed, he was taken back by the petitioner firm but was asked to go on special leave with full salary. On the basis of us treatment it is contended that the retirement is male fide, solely to get rid of tie respondent. The conduct of the petitioner firm in sending respondent Fernandes on special leave may be highly objectionable, but the respondent had acquiesced in it. He accepted the arrangement and lived under it for more than one and a half year. He did not complain to the Labour Court, because in case such conduct was found to be in violation of the Court's orders the petitioner firm could be prosecuted. But where the retirement takes place at the age of superannuation, according to a policy being followed with respect to all employees of the firm, it cannot be claimed, merely on the score of such conduct of the petitioner firm that in ordering the retirement of the respondent at the age of 55, it aced in a mala fide manner. The learned counsel for the respondent has contended that the respondent is quite fit physically, and that the petitioners have brought no evidence on record to show if his physical condition is otherwise this factor is totally irrelevant so long as a firm age of retirement is fixed. In such cases the presumption drawn by the employers, fixing such age for superannuation. is that their employees cease to remain economically productive or useful to their concerns after attaining such age. For excep tional case the provision of re-employment is made, which was also made by the petitioner firm in the case of its employees holding managerial posts, as is evidenced from the resolution of 14th October, 1970, quoted above. The main objection of the petitioners is that the application under section 25‑A of the Ordinance was not maintainable as no right guaranteed or secured under any law, award or‑ an agreement was infringed. In reply the learned counsel for the respondent contends that Standing Order 12(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (Ordinance VI of 1968) provides him a right to seek redress from a Labour Court. But this provisio‑1 merely states that in case a workman is aggrieved by termination of his service he may take action in accordance with the provisions of section 25‑A of the Ordinance. This means that the workman has to be an aggrieved person in terms of that section. This does not mean that such workman, if he merely dislikes his termination, he may agitate the matter before the Labour Court. The learned counsel for the respondent readily conceded that in order that a person be aggrieved he has to show infringement of any right as contemplated by section 25‑A of the Ordinance. This is also clear from the language of Standing Order 12(3) of Ordinance VI of 1968 where there is specific reference to section 25‑A of the Ordinance. In order that the provisions of this section be attracted it has to be shown that a right, guaranteed and secured by any law, award or agreement has been infringed. No law, award or agreement guarantees an unlimited period of service ; none lays down that an employee of a commercial or industrial concern shall be retained beyond the age of 55 or otherwise fixes any date of retirement. On the other hand an employer has always the right under Standing Order 12(1) of Ordinance VI of 1968 to terminate the services of a workman after giving one month's notice. The only condition is that such termination should be for reasons other than misconduct. In the payment case the employer firm has, in order to clear any doubts in the matter, fixed a firm date of 55 years, as the age of retirement. The respondent No. 2 having failed to show if any such guaranteed or secured right bad been infringed by virtue of the order of his retirement I would hold that an application under section 25‑A of the Ordinance was not maintainable. I would therefore accept the petition and direct that the order of the Labour Court being without lawful authority is set aside. Parties to bear costs. Q Petition accepted