1984 PLP 420 (PLC)

‑‑ Ss. 2 (xxviii) & 25‑A‑Words "is employed" occurring in definition of "workman'‑Do not mean that he should be in service at time of bringing action‑Retired person does not ceas to remain a workman ‑ Proper interpretation of words "is employed"‑He should have once remained in service of employer View taken by Sind Labour Appellate Tribunal that a retired or removed person is no more a workman‑Dissented from by Punjab Labour Appellate Tribunal. Nazir Ahmad Naz for Appellants. Hamid‑ud‑Din for Respondent. Date of hearing : 19th March, 1983. Decision, dated 24th September, 1981 passed by the learned Presiding Officer, Punjab Labour Court No. 9, Multan has been challenged in these appeals, whereby the grievance petitions of the appellants for their reinstatement in service were dismissed. Since common questions of facts and law are involved, both the appeals are being disposed of to gether through this single judgment.

2. The appellants were retired from service on attaining the age of 55 years. Jameel Ahmad, appellant, was retired on 30th June, 1980 and Lal Din, appellant, on 26th April, 1980.

3. The learned lower Court has held that since the order by which age of superannuation was fixed at 60 years was withdrawn in the 87th meeting, the appellants were rightly retired under regulation No. 19, according to which the age of superannuation was 55 years. The learned trial Judge has been mislead by Exh. R‑

1. The Board did not withdraw any order. No order was passed fixing the age as 55 years, but rather rule 33.1 of the 1959 rules was amended in 49th meeting held on 11tL January, 1977. An amendment cannot be withdrawn but can be superseded by another amendment. In the 87th meeting held on 30th June, 1980 rule 33.1 was not amended again but rather regulation No. 19 was only noted down according to which the age of superannuation was 55 years. The Board has in reality caused great confusion for reasons best known to them by making parallel rules. The basic rule is 33.1 of 1959 rules by which provision of retirement was made and the age of super annuation was fixed at 60 years. Before that there was no provision of retirement. In 1969 regulation No. 19 was added to 1965 Regulations fixing the age of superannuation as 55 years. Since already rule 33.1 ex1sted, there was no need of adding regulation No.

19. If the intention was to reduce the age of superannuation to 55 year instead of adding regulation No. 19, rule 33.1 of 1959 rules should have been amended. While making regulations of 1966 the rules of 1959 were not deleted or superseded. Rules of 1959 are more detailed and comprehen sive than regulations of 1965. In December, 1967 rule 33.1 was also amended and the age of superannuation was reduced to 55 years, with the result that the disparity created by adding regulation No. 19 stood removed. Again disparity was caused in 1977 by amending rule 33.1 of 1959 rules by adopting Government Notification No. SOR‑1 (S&GAD) 441/72 (policy), dated 9th December, 1976 whereby the age of superannuation was fixed as 60 years without any rider or qualification. Since the Board had decided to raise the age of superannuation again to 60 years, regulation No. 19 should have been, while amending rule 33.1, deleted. The Governor has for the smooth running of the transport empower the Board by rules of 1972 to make rules but it has created chaos and confusion by bringing about disparity in the rules which is carrying hardship to the employees. By adopting Government notification referred to above by amending rule 33.1 of 1959 rules, regulation No. 19 has become redundant and ineffective. When there are parallel discrepant rules, the one which goes in favour of the workers is to be followed. Since rule 33.1 as it now stands is more rel favourable to the workers, inasmuch as according to it, the age of superannuation is 60 years without any rider or condition Regulation of 1965 is ineffective. In 87th meeting the Board did not amend rule 33.1 but only noted down regulation No.

19. The effect of noting down regu lation No. 19 was not in any manner finish, delete, or amend rule 33.1. There is always a presumption that rule‑making body is aware of the existing laws and rules. So, it cannot be said that at the time of amending rule 33.1 on 11th January, 1977 the Board was unaware of the existence of regulation No.

19. The Board had no intention to delete or amend rule 33.1 in its 87th meeting, otherwise would have, instead of being pleased to note down regulation No. 19, amended rule 33.1, bringing it at par with Regulation No.

19. In the presence of rule 33.1 merely noting down regulation No. 19 had no effect and the provision of age of superan nuation of 60 years stood firm. I, therefore, hold that the age of super annuation for all PRTB employees is 60 years and consequently the appellant could not be retired at the age of 55 years.

4. Although the learned lower Court has not clearly held that the appellants are not workmen but it appears that this point was in the mind of the learned lower Court. There is no force in the contention that a retired person ceases to remain a workman. The words 'is employed' occurring in the definition of workman in the Industrial Relations Ordinance, 1969 do not mean that at the time of bringing an action, he should be in service. Wherever a worker or an employee has been defined present tense has been used such as section 2 (i) of Standing Orders Ordinance, 1968, section 2 (n) of the Workmen's Compensation Act, section 2 of the Civil Servants Acts of 1973 and 1974 etc. If it is held that a retired, dismissed or terminated person stands excluded from the definition of workman or employee or a civil servant, then no employee can challenge the order of his removal in any forum whatsoever. But this is not the intention of law. The proper interpretation of the words 'is employed' is that he should have once remained in the service of his employer. I am aware that the Sind Labour Appellate Tribunal has held that a retired or removed person is no more a workman but with great respect to my learned brother 1, for the reasons mentioned above, disagree with him. I may further make it clear that the provision of section 2 of the Industrial Relations Ordinance, 1969 that a person will stand included in the definition if his termination etc. has led to an industrial dispute or he has been on account of any industrial dispute terminated, has been made for those who, otherwise, do not fall within the definition of workman.

5. As upshot of the observations made above. I accept both the appeals and setting aside the impugned decisions of the learned lower Court, direct the re‑instatement of the appellants in service with all back benefits. A. E. Appeal accepted.