1988 PLP 261 (PLC)

‑‑‑S. 23‑‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38(3)‑‑Invalidity pension‑‑Petition for‑‑Competency of petition under section 23 of Act XIV of 1976, held, could be brought even without exhausting remedy of appeal. Jehangir Khan for Appellants. Ch. Ghulam Qadir Cheema for Respondent. Date of hearing: 16th March, 1987. This is an appeal directed against the order dated 23‑11‑1986 recorded by learned Presiding Officer, Punjab Labour Court No.6, Rawalpindi whereby the grievance petition of the respondent for being allowed invalidity pension in accordance with section 23 of the Employees Old‑age Benefits Act, 1976 was accepted.

2. The facts are that the respondent was on the basis of the report of the medical board constituted by the employer, declared invalid for service and so was retired. He claimed retirement benefits under section 23 of Employees Old‑Age Benefits Act, 1976, Although the petition was under section 23 of the Employees Old‑age Benefits Act, 1976, yet the learned lower Court treated the same as a petition under section 25‑A of Industrial Relations Ordinance, 1969. It was also held that grievance notice was given since in the written statement non‑service of the same was not contended.

3. The appellant did not allow retirement benefits on the ground that the board constituted by it for the determination of the percentage of inability, found that the respondent lost earning capacity to 30 persons only whereas according to the rules retirement benefits can be allowed where the percentage is 67$ or more. The learned lower Court has relied upon the report of the medical board constituted by the employer and has not relied upon the report of the board constituted by the appellant for the determination of the loss of earning capacity.

4. The argument of the learned counsel for the appellant is forceful, that the learned lower Court had no jurisdiction. Needless to say l that Labour Courts have jurisdiction to adjudicate upon industrial dispute or petitions brought under section 25‑A of Industrial Relations. Ordinance 1969. The petition of the respondent was not brought under section 25‑A but was under section 23 of the Employees Old‑Age Benefits Act, 1976. Since the respondent could sue the appellant under section 23, therefore, he had brought the petition against the appellant otherwise he would have sued the employer under section 25‑A of Industrial Relations Ordinance, 1969. A dispute between ail employer and employee is competent under section 25‑A and Labour Courts can adjudicate upon only such disputes which are either between the workmen and employers, between the employers and workmen and between employer and employee. Since the present dispute is not between the employer and the respondent, the Labour Court had no` jurisdiction.

5. This finding of the learned lower Court is also wrong that grievance notice was given. Since the petition was not brought under section 25‑A of Industrial Relations Ordinance, 1969, therefore, it was not necessary for the appellant to contend in the written statement that no notice as required by section 25‑A of Industrial Relations Ordinance, 1969 had been served. The absence of such a plea in the written statement, therefore, was not sufficient for holding that grievance notice had been served. In reality no question of service of grievance notice could arise since the petitioner was not brought under section 25‑A of Industrial Relations Ordinance, 1969. I do not find any force in the arguments of the learned counsel for the respondent that the petition has been rightly treated by the learned lower Court as one brought under section 25‑A of Industrial Relations Ordinance, 1969. As mentioned above, since the petition was not against the employer it could not be treated as an application brought under section 25‑A of Industrial Relations Ordinance, 1969. I, too, do not find any force in the arguments that the findings of the learned lower Court about the service of grievance notice is correct. In the petition there is no mentioned of the fact that any notice or any application which may be treated as a notice was given after the grievance arose to the respondent.

6. However, I do not find any force in the arguments of the learned counsel for the appellant that without exhausting the remedy of appeal the respondent could not bring an application under section

23. There is no provision that without bringing an appeal the door of the Court cannot be knocked.

7. As a result, the appeal is accepted and setting aside the impugned decision the petition brought under section 23 of Employees Old‑Age Benefits Act, 1976 is returned for want of jurisdiction. M.Y.H/313/Lb.P Appeal accepted.