1992 PLP 1118 (PLC(CS))

Date of hearing: 29th November, 1990. This is a Revision Application under section 38(3a) of I.R.O., 1969, against the order, dated 20-5-1985 passed by learned Presiding Officer, Sindh Labour Court No. VI at Hyderabad whereby he dismissed the petitions under section 51 of I.R.O., 1969, filed by Rafee Mohammad and Abdul Hakeem. Rafee Mohammad has not pursued the matter any further whereas Abdul Hakeem. filed this Revision Application on 29-7-1985. It appears that this Revision Application was not brought to the notice of my learned predecessor and was kept pending till it was brought to my notice. When notices were issued to the parties. It transpired that Abdul Hakeem had also died in the meantime. As such by order, dated 12-9-1989, the LRs were ordered to be joined as parties and `Amended Application' was filed on 21-11-1989.

2. Both the learned counsel of the parties have filed `Written Arguments' which I have perused. I have also gone through the record and proceedings of the case.

3. Admittedly deceased applicant Abdul Hakeem was `Jamadar Guard' of the National Bank of Pakistan at Hyderabad. He was retired on 12-2-1983 on reaching the age of superannuation. On his retirement he was allowed only provident fund but was denied the benefits of pension/gratuity which were payable to him under the Wage Commission Award of 1975. He therefore, filed petition for recovery of Rs. 28,140.

4. The respondents resisted the petition on the ground that in pursuance of the `Press Note' dated 8-7-1975, issued by Government of Pakistan, Ministry of Finance, the applicant asked to `opt' for either `Old Retirement Benefits' or `New Retirement Benefits' under the Wage Commission Award. The applicant exercised the option by opting for `Old Retirement Benefit Rules' under which the National Bank of Pakistan had to contribute to the Provident Fund an amount equal to the amount contributed by the employee. It was also contended that the applicant was not a workmen.

5. The learned Labour Court decided the issue with regard to the status of the applicant as workman in favour of the applicant and no cross-appeal or cross-objection were filed against the said finding. This finding of learned Labour Court had therefore attained finality.

6. It is not disputed that under the Wage Commission Award of 1975 the employees, of the National Bank of Pakistan were given the right of pension/gratuity. It is also not disputed that in pursuance of the aforementioned `Press Note' the applicant was asked to give his option and that he had signed the option form opting for the benefits under the `Old Rules'. The contention of the applicant that he had signed the form of option without knowing what its contents were has rightly been disbelieved by the learned Labour Court for valid reasons and I see no reason to disagree with the learned Labour Court.

7. The next question that requires consideration is whether the National Bank of Pakistan could have circumvented the Wage Commission Award with regard to pension/gratuity by asking its employees for option. Para 252 of Wage Commission Award, 1975 provides that:- "It has been decided to introduce Pension and General Provident Scheme. The pension scheme also includes the benefit of family pension to the employee's wife and or to his children in case of the demise of the pensioner. The existing scheme of pension in the case of National Bank of Pakistan, Contributory Provident Fund and Gratuity shall be discontinued." Section 38-G of I.R.O., 1969, provides that "the decision of the Wage Commission shall be binding on all the employees concerned with the decision in relation to their workers and every such worker shall be entitled to be paid the wages and governed by the terms and conditions determined by the Wage Commission:"

8. The learned Labour Court has referred to Paras 26 and 27 of Wage Commission Award of 1978. These paras, however, refer to Disciplinary Rules and Service Rules and not to the Pension Rules.

9. However reference may be made to paras 189 and 190 of the Wage Commission Award, 1984 under which` the aforesaid `Press Note' asking for the option of the employees was impliedly approved and the employees were given a second and final option either to opt for the Old Contributory Provident Fund Rules or new Pension Rules and option was to be exercised within three months of the publication of the Award: The Wage Commission had approved the decision of the National Bank of Pakistan to give option to its employees to exercise option as to whether they opted for the pension scheme under the Wage Commission Award or the Contributory Provident Fund Schemes under the Old Rules. There also appears to be force in the contention of the respondents that there was contract of service between the employees and the Bank and the terms and conditions of service existing at the time of the employment of the employee, would form the terms and conditions of contract of his service. The terms and conditions of service of an employee under the contract cannot be changed without his consent specially when these terms and. conditions of service were regulated by Statutory Rules viz. National Bank of Pakistan (Staff) Service Rules. Besides under Section 38-G of I.R.O., 1969 the decision of Wage Commission was binding on the employers only and not on the employee. It was therefore all the more necessary to ask for the consent of the employee with regard to the change of the terms and conditions of his service. Under the circumstances after the applicant had exercised his option in favour of the Old Contributory Provident Fund Scheme and also accepted the dues under those rules, he cannot claim benefits under the New Pension Rules.

10. I find no reason to interfere with the decision of the learned Labour Court in exercise of the Revisional Powers of this Tribunal. The Revision (C Application is, accordingly, dismissed. M.Y.H./1801/Lb. S Petition dismissed.