' One Muhammad Saleem Awan (herein referred to as petitioner) was appointed as Accounts Officer in Haripur Rosin and Tarpentine Factory (HRTF) on 26-7-1980 by the Sarhad Development Authority and later on the HRTF was taken over by the Forest Development Corporation (hereinafter referred to as FDC/respondent) on 1-12-1981, allowing him all the service benefits as admissible to the employees of FDC. On 29-1-1992 his services were transferred from HRTF to Siren Kaghan Forestry Project (hereinafter referred to as SKFP), Abbottabad. It is worth mentioning to note that both the aforesaid Projects i,e, HRTF and SKFP are the sister-projects of the FDC. As a result of agreement/settlement arrived at between the CBAs of HRTF and two others, the Government of N- W.F.P. And the FDC, a number of employees of HRTF and two other projects were retrenched on the basis of Golden Hand Shake (Hereinafter referred to as GHS) as per the terms and conditions settled in the Agreement dated 20-12-1997 (Exh.P.W.1/8). In pursuant to the settlement so arrived at, the petitioner Muhammad Saleem was retrenched from service on 26-3-1998, vide Exh.P.W.1/9. The respondent/FDC paid the service dues to the petitioner which were received by him under protest.
The petitioner was aggrieved that the respondents have not calculated the gratuity on the basis of Gross pay which is against the law on the subject and that the respondents have also failed to pay interest on the CPF for the year 1997-98 and the leave encashment and that me respondents have not counted 15 months service in the GHS for the purpose of payment. To get his grievance redressed, the petitioner filed appeal before the high-ups of the FDC/respondents which was rejected. The rejection of appeal filed by petitioner obliged him to give grievance notice to the respondent which too met the same fate. Therefore, the petitioner filed a grievance petition under section 25-A read with section 51 of the IRO, against the respondent for the recovery of outstanding dues. The respondents contested the grievance petition by filing written statement wherein besides denying the averments made in the grievance petition, they also raised many legal and factual grounds qua the maintainability of the said petition. The learned Labour Court after recording evidence of the parties and hearing the arguments of the learned counsel for the parties, partially accepted the grievance petition and the petitioner's prayers with regard to the inclusion of 15 months towards benefits of Golden Hand Shake and leave encashment were accepted while rest of the prayer was denied, vide judgment/order dated 13-3-2001. Feeling aggrieved, both the parties have approached this Tribunal by tiling separate Appeals bearing No,76 of 2001 (Forest Development Corporation and others v. Muhammad Saleem) and No,77 of 2001 (Muhammad Saleem Awan v. N.-W.F.P. Forest Development Corporation and others). Both the appeals arising out of the same judgment/order of the learned Labour Court dated 13-3-2001, are disposed of by this single judgment/order.
2. The learned counsel for the FDC/respondent assailed the judgment of the learned Labour Court on many-fold grounds, that is:--
(i) That the petitioner was not a workman within the meanings of section 2(xxviii) of the IRO at the time of retrencehment of his service as his job was of supervisory nature and as such his petition before the Labour Court was not maintainable.
(ii) That the grievance petition filed before the Labour Court was barred by time within meanings of section 25-A of the IRO.
(iii) That the learned Labour Court has failed to give its findings on the point as to whether the petition is entertainable under section 25-A or section 51 of the IRO and that the petition under either of the provisions of law was not maintainable.
(iv) That the grievance notice given to the respondents/FDC was barred by time as it was incumbent upon the petitioner to have given such a notice within a period of 3 months of the accrual of cause of action and in the instant case, the cause of action accrued to the petitioner on 28-5-1998 when he received his final payments but he tiled the grievance notice on 27-2-1999 which is beyond the period of three months prescribed by law, and no condonation can be granted to a person who files a grievance notice after three months of the accrual of cause of action.
3. On the other hand, learned counsel for the petitioner Muhammad Saleem Awan (appellant in Appeal No,77 of 2001) while rebutting the arguments of the learned counsel for the FDC,, has contended:--
(1) That the petitioner was workman as his services were retrenched pursuant to the settlement dated 2-12-1997, arrived at between the C.B.As. Of the petitioner's concern and the FDC.
(2) That the findings of the learned' Labour 'Court with regard to the payment of gratuity on the basis of basic pay are against law and in contravention of the provisions of Standing Order No,12(6) of the Standing Order Ordinance.
(3) That the greivance petition is basically under section 51 of the IRO as the recovery of outstanding dues was required. He further contended that mere wrong caption of provision of law while making a petition before the Court, would not deprive a person froth the relief for which he was otherwise entitled under the law.
(4) That as per settlement dated 20-12-1997, the petitioner was entitled to the payment of interest for the year 1997-98 on the CPP but the same has wrongly been denied by the respondent- employer and upheld by the learned Labour Court without assigning any cogent reasons for its denial.
4. Now I take up the aforesaid grounds one by one. As regards the contention that the petitioner Muhammad Saleem Awan was a workman or not, though the evidence available on record shows that the petitioner was delegated financial powers vide Exh.PW1/1 yet these powers were never exercised in letter and spirit and to this effect the statement of R.W.2 Sajid Ijaz is very much clear when he stated that all the electric bills, vouchers and statements of accounts etc. Were sent to the petitioner for its onward submission to the Project Director and Project Director used to accord sanction in all matters, meaning thereby that the final authority in each case was the Project Director and not the petitioner. This factor is further supported by the fact that the petitioner in the service career spreading over more than one decade, never terminated or appointed any person which alone establishes that he had no hire and fire powers. Had the petitioner acted upon the delegation of powers vide Exh.PW.1/1, there would have been no reason to send such-like Bills etc. To the Project Director and the respondent's failure to produce any evidence to this effect establishes that the petitioner had no powers of hire and fire and as such mere delegation of financial powers given to him would not oust him from the definition of workman. The evidence produced by the respondents abundantly reveals that the petitioner belonged to the category of workers as most of the duties which he was performing, were manual and clerical in character. I am supported in my view by the dictum of august Supreme Court reported 1998 SCM R 644 = 1998 PLC 172 titled as Mustehkum Cement Ltd. Through Managing Director v. Abdul Rashid and others.
5. So far as the second contention that the grievance petition under section 25-A of the IRO is barred by time, is concerned, suffice to say that the petitioner kept on agitating his grievance before the high-ups of respondents/FDC by moving various applications/appeals and when his appeal for the consideration of his plea was turned down, he, as a lost resort, gave the grievance notice and soon after its rejection on 10-3-1999, he filed the grievance petition before the Labour Court on 5-4-1999 which is in time within the meanings of section 25 of the I.R.O., if it is taken under the aforesaid section.
6. The next ground that the learned Labour Court has failed to give its findings on the point as to whether the petition was maintainable under section 25-A of the IRO or under section 51 of the I.R.O., is concerned, it is vividly clear from the crux of the petition itself that the petitioner prayed for the recovery of the outstanding dues which were denied to him in disregard of 'the settlement/agreement dated 20-12-1997 and the relevant law on the subject, and his such prayer solely attracts section 51 of the I.R.O. Besides, both sections i,e, sections 25-A and 51 of the I.R.O. Did find mention in the headings of the grievance petition and as such mere wrong addition or caption of a provision of law while making a petition before the Labour Court would not disentitle or deprive him from the relief for which he was entitled under the law. The Honourable Supreme Court in a case reported as PLD 1993 Supreme Court 109 titled Pakistan Fisheries, Karachi and others v. United Bank Ltd." has held:- "As long as the power to hear and decide a matter vests in a Court, mere reference to a wrong provision of law, for invocation of that power is not a bar to the exercise of that power."
' Reliance is also placed at cases reported as 1994 SCM R 771 and 1999 M LD 595. In view of the above discussions, the learned Labour Court has rightly entertained the grievance petition under section 51 of the I . R .0.
7. As regards the petitioner's contention that his gratuity should have been calculated on the basis of gross wages and not on the basis of basic pay as maintained by the Labour Court, Standing Order 12(6) of the Industrial and Commercial Employment (Standing Orders) Ordinance, clearly lays down that the gratuity should be paid on the basis of "Wages" and wages means gross wages including fringe benefits which are on permanent basis and are part of basic pay i,e, wages. The terms "Wages" in the Black's Law Dictionary means:- "Every form of remuneration payable for a given period to an individual for personal services, including salaries, commissions, vacation pay, dismissal wages, bonuses and reasonable value of board, rent, housing, lodging, payments in kind, tips, and any other similar advantage received from the individual's employer or directly with respect to work for him."
' The Honourable Supreme Court 'of Pakistan in a case reported as 1994 SCM R 2222 (Zain Packaging Industries Ltd. v. Abdul Rashid and two others) has held:-- "if a workman is receiving certain payments on a permanent basis, regularly not dependent upon any contingency or existence or otherwise of certain conditions then notwithstanding the fact that such payment may be described as an allowance of some kind, will be treated as part of his wages. However, if it can be shown that certain payments made to a workman are dependent on existence of certain contingency or conditions and such payment could be discontinued when the contingency or the condition disappears. The payment cannot be treated as part of the wages of a workman. Therefore, the question whether a particular payment to the workman is a part of his wages or not, is to be decided with reference to the facts and evidence in each case."
In view of the aforecited judgment' of the apex Court apart, in order to advance the cause of a workman, the labour laws are to be construed liberally and generally being beneficent and benevolent laws as held by the august Supreme Court in reported case as PLD 2000 Supreme Court 207, petitioner . Muhammad Saleem Awan is entitled to the calculation of gratuity on the basis of gross wages.
8. As regards the contention with regard to payment of interest on the G.P. Fund for the year 1997- 98, suffice to say that as per the settlement/argument dated 20-12-1997, the respondents are bound to pay the interest as the funds were lying with the respondents/FDC for the period in question. Therefore, I hold that petitioner Muhammad Saleem Awan is entitled to the payment of interest on the G.P. Fund as per rate prevalent at that time.
' In nutshell, the appeal filed by the FDC is dismissed while that of Muhammad Saleem Awan is accepted as prayed for.