1. ' MUNIB AHMED KHAN, J.---Through these appeals 61 appellants have challenged the order dated 5-10-2004 passed by the Labour Court No,VI Hyderabad on their applications filed before it under section 46 of the I.R.O.
2. 2002. Briefly stated, since the respondent was not making any profit and was going in loss and it had become difficult for the management to effectually carry out the working of the A Company, therefore, it entered into a settlement with the C.B.A. For termination of services of the workers under Golden Handshake Scheme, The said settlement, after negotiation, was entered into on 10- 12-1999 agreeing thereby that all the permanent employees to submit resignation through C.B.A.
3. Under Golden Handshake Scheme and to be paid, besides other dues, additional benefits under the said Scheme. The case of the appellants is that all was done by the management in connivance with the C.B.A. And that the resignations submitted by the appellants in terms of the settlement were conditional to the clearance of their dues and to be effective after their dues/wages are paid, and that the appellants have even opposed the settlement entered between the management and C.B.A. But later on accepted in the larger interest to maintain harmony in the establishment. They have stated that in terms of the Settlement/agreement, the appellants are not paid as provided under Payment of Wages Act, 1936 but were handed over cheques against their outstanding which have been bounced and that some workers have been allotted plots on the land which is even not owned by the respondent. They have further stated that since the legal dues/wages have not been paid, therefore, there is recurring cause and at last, the appellants have filed the cases which were contested by the respondent on the ground that the applications before S.L.C. Are not maintainable in law as the applicants do not fall within the meaning of workman and since there exists no relationship as workman and employer, therefore, the Labour Court has no jurisdiction in the matter. It has further been contested that the application before the S.L.0 is hopelessly time-barred. The learned S.L.C. After recording evidence dismissed the applications on the ground that the petitioners are no more workmen and they are not aggrieved persons nor the Court has jurisdiction to entertain nor there is any cause for the appellants to file applications. Learned counsel observed that the resignation was voluntarily and that all the documents were signed by the appellants and they tendered their resignation which shows that full and final payments of service dues were made and that once the voluntarily resignation is accepted then there remain issue of payment of dues, if any, and that would not revive the question of employment.
4. ' The learned counsel for the respondent submits that the applicants have been paid dues and nothing in the shape of wages is pending and that the appellants after resignation have submitted their clearance certificate from all the departments concerned of the respondent and were also paid their provident fund, gratuity and other dues separately, therefore, appellants have no grievance in terms of section 46 of I.R.O.
5. 2002. He has further submitted that as far as the management is concerned, it, after the settlement dated 10-12-1999, has handed over its land measuring 59-22 acres as well as Rs,1,00,00,000 (Rupees One Crore) to the C.B.A. For its distribution amongst the past employees who resigned. He has further submitted that there is huge property of the company in the hands of C.B.A. And since it was representative of employees, therefore, if the appellants have any grievance then they should approach the C.B.A. He has further argued that every appellant has submitted resignation which was accepted and in terms thereof dues have been cleared and that the Golden Handshake Scheme does not include gratuity, provident fund or any other amount which bring the case of appellants within the purview of section 46 of I.R.O. 2002 and that the presence of C.B.A was necessary before the Labour Court since it was matter of interpretation of settlement executed by the C.B.A. With the management.
6. ' Learned counsel for the respondent has also stated that several employees have been handed over the plots of the company and that certain have been paid amounts and issue has been settled hence appellants have no grievance. He has further pointed out that the company has bona fide intention and that the property which has been handed over by the respondent to the C.B.A. Is worth more than the amount of Golden HandsLke Scheme. He has further stated that although the agreement was executed on 10-12-1999 but it was never challenged and the appellants have filed applications before the Labour Court in the middle of 2003, therefore, the Labour Court has wrongly assumed the jurisdiction.
7. ' The ,learned counsel for the appellants, in rebuttal has argued that the learned Labour Court did not apply its judicial mind to the fact that the resignation was subject to payment of dues and until the dues are paid, the appellant will remain with the respondent/employer. He has further submitted that dues of the appellants or wages and its nonpayment give right to the appellants to move to the Labour Court. Learned counsel has further submitted that in some other cases of employees who have also submitted resignation, were allotted plots in lieu of their dues and when they approached the Labour Court as sale-deeds were not executed then the Labour Court allowed their applications with the direction that their dues be paid within a month and Deputy Director Labour (Conciliation) has been appointed as Commissioner who ensured proper payment of the dues to those employees.
8. ' Learned counsel for the appellant has relied upon 1992 SCMR 26 and 2002 PLC (C.S.) 614 on the point that C.B.A. Cannot be a substitute for right of individual and any payment to the C.B.A. Cannot absolve the employer from payment. He has further submitted that recurring claim of financial nature is not being hit from Limitation and has relied upon PLD 2003 SC 724 = 2003 PLC (C.S.) 796.
9. ' He has further stated that acceptance of dues cannot amount to waiver and even the employee can be reinstated when he returns the amount which he has been paid.
10. ' Rebutting the contention of Mr. Rizvi, counsel for the respondent Mr. Rafique Ahmed has argued that there was no wages outstanding and that at the most if the cheque was bounced then the appellant could go to the competent forum for recovery of amount and could file case under summary proceedings before the District Judge as the cheques were issued by the office-bearer of the C.B.A., therefore, case could be maintained against them but the appellants have wrongly approached Labour Court. He has further pointed out that all service dues have been paid and the appellants themselves have filed copy of cash vouchers and the clearance certificate which they have obtained from the concerned departments of the employer. He has further submitted that the petitioner's case before the Labour Court in the circumstances was not maintainable. He has placed reliance upon 1980 PLC 655, 1982 PLC 652, 2003 PLC 184, 1981 PLC 878 and PLD 2001 SC 355 on the point of limitation and maintainability.
11. ' After going through the R&P and the arguments advanced by the learned counsel for the parties, I have noticed that the appellants approached the Labour Court with the following prayers:-- "In these circumstances, it is earnestly prayed that this Honourable Court may be pleased to direct the respondent to pay the earned wages of the applicant from 31-12-1999 onwards saddling it the cost also and or pass any order as deemed just and proper."
12. ' In the above prayer, there is no mention of reinstatement in service which shows that the appellants themselves were confident and have assumed that the settlement between C.B.A. And the management dated 10-12-1999 was proper and in consequence thereto they have submitted their resignations, therefore, they have not asked for reinstatement but have specifically mentioned 31-12-1999 which is a date of settlement.
13. ' Now for the purpose of appreciating the legal objection raised by the learned counsel for the respondent in respect to the maintainability of the petition before the Labour Court, the wording of section 46 of of the petition before the Labour Court, the wording of section 46 of I.R.O. 2002 is as follows:--
46. "Redress of individual grievances.---(1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his Shop Steward or collective bargaining agent, within one month of the day on which cause of such grievance arises."
14. ' In terms of section 46 of I.R.O. 2002, the grievance can be made by the worker who has been defined under section 2 (xxx) of the said Ordinance as under:--
(xxx) "Worker" and" workman" means any and all persons not falling within the definition of employer who is employed in an establishment or industry for remuneration or reward either directly or through a contractor, whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off or removal has led to that dispute but does not include any person who is employed mainly in a managerial or administrative capacity."
15. ' According to above definition of worker, a person who has resigned is not included in that category and the appellant admittedly has submitted his resignation which could not be denied as in pursuance to that he obtained clearance from all the departments of the employer and received certain amounts toward provident fund and other dues while towards the benefit under the Golden Handshake Scheme he was paid through cheque which could not be encashed, therefore, non-encashment of the cheque cannot rebut all the factual positions which were never agitated and by efflux of time have become fait accompli.
16. ' In the circumstances, the appellant was not workman and could not maintain application before the Labour Court on that ground. It has also been seen that even if worker, if, he falls within that definition then he can go to the Labour Court in respect of his rights, guarantee or secured to him by or under any law, award or settlement. Herein the case, the appellants have no right guaranteed under the law as entire dues were paid to them and additional payment by way of Golden Handshake Scheme, does not fall within the meaning of wages as defined under section 2(vi) of the Payment of Wages Act as all other dues including provident fund etc. Were paid to the appellants separately while the cheque amount was for additional benefits. Said section of P.W Act is reproduced as under:-- 2(vi) "wages" means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable, whether conditionally upon the regular attendance, good work or conduct or other behaviour of the person employed or otherwise, to a person employed in respect of his employment or of work done in such employment, and includes any bonus or other additional remuneration of the nature aforesaid which would be so payable and any sum payable to such person by reason of the termination of his employment, but does not include--
(a) the value of any house accommodation, supply of light, water, medical attendance or other amenity, or of any service excluded by general or special order of the 3 *** 4 (Provincial Government);
(b) any contribution paid by the employer to any pension fund or provident fund;
(c) any travelling allowance or the value of travelling concession;
(d) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or
(e) any gratuity payable on discharge.
17. ' In the light of above definition as well as evidence which has come on record in respect to payment of dues regarding the service benefits, the claim of additional benefits under Golden Handshake Scheme does not fall within the meaning of wages because it is an extraordinary type of payment agreed by the parties under some settlement.
18. ' As far as the question of any right accrued under the settlement, the appellants have neither gone for enforcement of those rights nor they have approached the Court in proper time as the settlement was executed on 10-12-1999 and they remained satisfied after obtaining a cheque for their outstanding. The application before the S.L.C. Have been filed in 2003 i,e, after more than three years, therefore, it could not be maintained on the point of Limitation.
19. ' As far as the ground of the appellants that certain other applications have been allowed by the Labour Court wherein instead of cheques, the allotments of plots have been made while on the basis of same facts, application of other employees, who have been issued cheques, have been dismissed. The arguments in respect to above, have no force as this Court could give its finding in these appeals, filed by M/s Zeal Pak Cement Factory, on merit, but before arguments in detail, and decision thereof, the parties agreed for certain terms to solve the problem, therefore, that ground is not available now. The authorities referred to by the appellant's counsel are not relevant to the issue involved as no question of non-payment of additional benefits under Golden Handshake Scheme or in pursuance thereto acceptance of cheque by the employee is involved. In the above circumstances, appeals have no force.
20. ' Anyhow, since respondent in other appeals (99/2003 and others) which it has filed against the order of the S.I. C., has agreed to appointment of Deputy Director Labour (Conciliation) to act as Conciliator and to pool up all the property given to the C.B.A. Under Settlement dated 10-12-1999, therefore, in these appeals, it is also ordered that the appellants may approach the Deputy Director Labour (Conciliation) and present their claim to him who should try his best to settle the claims of the appellants from the property which comes to his hand or the appellants may take up the matter in accordance with law on the basis of cheques issued to them and remain unpaid.
21. ' With this observation, these appeals are dismissed.