' JUSTICE (RETD . ) TANVIR AHMED KHAN (CHAIRMAN).--- This case has got cheered history. The facts briefly are that the petitioner Ch. Muhammad Yousaf joined respondent Establishment in the year 1960. He was President of Rustam Sohrab Cycle Factory Employees Union, which remained CBA for most of the time. His date of birth according to the record was 15-6-1938. During his service he became Assistant Accountant but remained worker due to the duties performed by him and actively participated in the union activities. According to record he was retired on 14-6-1998. An order was passed on 21-5-1998 No,R.116 by the Manager Personnel of the Establishment to the effect that the petitioner would stand retired from his duties with effect from 14-6-1998 as he would be reaching the age of superannuation. However, before his retiring age, the Board in its meeting held on 5-6-1998 by referring to earlier order No,R-116 dated 21-5-1998 hereunder he was retired on 14- 6-1998 the Board after evaluation of his past working resolved to grant promotion to him to the post of Accountant along with grant of extension in his service for a period of further one year with effect from 14-6-1998 the perspective date of his retirement to 13-6-1999.
2. Thereafter, the Manager Personnel of the Establishment through letter No,B-116, dated 12-6-1998 pointed out ambiguity in the promotion order as Accountant of the-petitioner. The relevant portion is reproduced as under:-- "In Board Meeting No,1208 dated 5-6-1998 above Assistant Accountant has been granted promotion to the post of Accountant in Grade No,9 and also extension for one year, i,e, from 14-6- 1998 to 13-6-1999.
' Your kind attention is drawn that Accountant's superannuation age is 65 years as per relevant Employment Regulation. He is Assistant Accountant at present and as such is due to retire on 14-6- 1998 on attaining Assistant Accountant's superannuation age, which is 60 years.
' By virtue of relevant Employment Regulation on promotion to the post of Accountant, he will attain superannuation age of 65 years hence the question of extension stands nullified.
' The relevant extract of Employment Regulation No,2 which regulate superannuation ages of:--
(a) Workman.
(b) Supervisory staff (other than covered in Grade Nos.8 and 9).
(c) Supervisory/Managerial Staff of Grade Nos.8, 9 and above is attached herewith please.
' The case is resubmitted for clarification in the light of above observation pleas. Meanwhile we are deferring -the issuance of Extension/Promotion letter till clarification for your end."
3. Thereafter a corrigendum was issued on 15-6-1998, which was as under:-- "An amendment is made in I.O.N. S/No,3(1) Board Meeting No,1208, dated 5-6-1998 regarding as under:-- ' Promotion and Extension in service period to Ch. Muhammad Yousaf Assistant Accountant..."
' According to which above said employee was granted promotion and extension in his service period for one year. Please consider and read this declaration that the above said employee Ch. Muhammad Yousaf Assistant Accountant C.No,025172 was approved by the Board for promotion to the post of Accountant. Instead of Promotion along with the grant of extension in service period. "
4. The condition of one year extension was deleted as per Regulation No,2 of the Establishment. He was to retire after being promoted as an Accountant at the page 65 years.
5. Thereafter another order was issued by the Manager Personnel informing the petitioner on 23-6- 1998 that he had been promoted by the management to the post of Accountant with effect from 14-6-1998.
6. The petitioner being President of the Union was apprehending adverse action against the office- bearers of the union who were performing the functions of CBA at that time as such Petition No,4A(467) of 2000-L was filed by the petitioner along with 8 other office-bearers of the union. This petition came up for hearing before the then learned Chairman on 19-12-2000 who issued notice to the parties for 30th of December, 2000. On the adjourned date i,e, 30-12-2000 the management was represented in person by their Personnel Manager Mr. Saeed Azhar and in his presence an interim order was passed by the then learned Chairman in the following terms:- "In the circumstances, the respondents may continue with the disciplinary proceedings initiated against the petitioners and hold the departmental inquiry against them but they will not pass any final adverse order against them till the next date of hearing. Manager Personnel is further directed to produce before this Commission the inquiry findings/report as and when the inquiry is completed."
' The case was accordingly adjourned to 19-1-2001. On the said date an interim order was passed that the interim order shall continue. On 20-2-2001 the management stated that some of the petitioners have been reinstated and the charge against them had been withdrawn as such their names were deleted. However, the stay order earlier passed on 30th of December, 2000 remained intact respecting other petitioners.
7. In the meantime, petitioner Ch. Muhammad Yousaf filed another Petition No,4A(15) of 2001/L, whereby he took exception to the order, dated 23rd of December, 2000 issued on 3-1-2001 whereby his services were terminated/retired with immediate effect. The parties produced their evidence and the said case remained pending for a considerable period. Ultimately an order was passed by me on 4th of March, 2005 disposing of the Petition No,4A(15) of 2001-L, in view of the statement of Mr. Abdul Sattar Malik, Director Stores and Supply, Rustam Sohrab Cycle Factory, Shandra, Lahore that in case the petitioner withdrew his petition and approached the establishment his case would be considered sympathetically so as to redress his grievance.
8. Accordingly the petition was disposed of directing the petitioner to move an application and the Board of Directors were to decide the case sympathetically within a period of 2 months. It was also made clear that in case the grievance of the petitioner was not redressed he would be at liberty to move a simple application for resurrection of his Case No,4A(15) of 2001-L.
9. It is pertinent to mention here that Mr. Abdul Sattar Malik Director of the Establishment played a very pivotal role in cementing the cordial relations between the management and the workers earlier. The petitioner who was President of the Union also played the similar role in bringing peace and production in the establishment. It is to be pointed out that a litigation was going on between both the sides which was pending before the Honourable Lahore High Court as well as before the Honourable Supreme Court for the last more than two decades. The respondent-Management filed Petition No,4A(124) of 2004/L making grievance against the objectionable behaviour of the workers and go-slow which was causing great loss to the Establishment. The present petitioner being President of the Union played dominating role in bringing congenial atmosphere in the factory. In my order, dated 23-12-2004 while disposing of above said petition I appreciate the part played by Mr. Abdul Sattar Malik, Director Establishment and the petitioner Ch. Muhammad Yousaf in the following manners:- "Before parting with this order I highly appreciate the efforts of Malik Abdul Sattar whose participation has made valuable contribution towards the settlement. Mr. Nasir Hussain Shah, Admin. Manager fully cooperated with the workers in reaching the goal. Mr. Abdul Rashid Randhawa, learned counsel appearing for the Management, Mr. H.R. Haider, learned counsel as well as respondent No,1, Mr. Muhammad Yousaf also played a valuable role in persuading the workers to give up go-slow and cultivate better relationship with the Management." (underline is mine).
10. After successfully bringing the cordial relations in the establishment wherein the petitioner Ch. Muhammad Yousaf as already stated played pivotal role and the same is reflected in my order, dated 23-12-2004 passed in Petition No,4A(124) of 2004-L, I disposed of Petition No, 4A(15) of 2001-L on 4-3-2005. I directed the petitioner to approach the Establishment and the Board of Directors were in turn to decide the matter sympathetically. It is appropriate to reproduce the concluding paragraphs of my order, dated 4-3-2005 whereby I directed the petitioner Ch. Muhammad Yousaf to move an application to the Establishment:--- "Grievance of the petitioner, Ch. Muhammad Yousaf is that his services have been abruptly terminated without any reason on 23-12-2000, which letter was issued on 3-1-2001. It was received by the petitioner on 4-1-2001, during the currency of the restraint order. He has also pointed out that other persons namely Nasrullah Malik and Faqir Muhammad have performed their duties up to the age of 65 years while as already stated he has been discriminated and shunted out because of trade union activities. It is pertinent to mention here that Ch. Muhammad Yousaf played a dominated role in resolving the long standing dispute between the workers and the Establishment.
' Mr. Abdul Sattar Malik, Director Stores and Supply Rustam Sohrab Cycle Factory, Shandra, Lahore who had played a pivotal role in earlier dispute stated in the court that if the petitioner withdraws his petition and approaches the Establishment his case would be considered sympathetically, so as to redress his grievance.
' In view of this candid statement these petitions are disposed of for the time being referring the matter to the Establishment. The petitioner in the circumstances is also directed to move an application with the orders of this Court to the Establishment and the Board of Director shall decide this matter sympathetically within two months. Outcome of the exercise shall be submitted to the Deputy Registrar of this Court on or before 4th of May, 2005. It is made clear that if the petitioner grievance is not redressed he would be at liberty to move a simple application for the resurrection of this case."
11. However, the respondent-Management through order, dated 3-5-2005 rejected the plea of the petitioner. Thereafter the petitioner made an application by appending order, dated 4-3-2005 whereby the Establishment was requested to pay him benefits for the period of two and a half year 4-1-2001 to 14-6-2003 which the Management denied vide fetter dated 3-5-2005 on the ground that he did not serve the organization for the said period. Both the parties have argued this matter at length. The only point taken by the learned counsel appearing for the respondent is that the petitioner after his promotion as an Accountant secured/attained the post of supervisory nature as such this commission has got no jurisdiction as he was no more workman. He has also stated that the services of the petitioner were terminated through order, dated 23rd of December, 2000 before the passage of restraint order dated 30th of December, 2000.
12. I have given my anxious consideration to the entire facts of this case. As already stated in the preceding paragraphs, the atmosphere because of the agitated attitude from both the side was not normal in the Establishment. Even there was go slow in the Factory respecting which the Management filed Petition bearing No,4A(124) of 2004-L. However, as already stated that the outstanding dispute lingering on between the Management and the union for the last 20 years was resolved due to the candid efforts demonstrated by both the sides. In this regard at the cost of repetition I would say that Mr. Abdul Sattar Malik, Director Rustam Sohrab played a very pivotal role in solving outstanding dispute, which was lingering on for the last more than two decades causing great loss to the respondent-Establishment. Muhammad Yousaf petitioner also prayed valuable role in persuading the workers.
13. As far as the question of jurisdiction is concerned the Management produced two witnesses in support of its stand but none of them had categorically described the duties performed by the petitioner. On the contrary the petitioner himself appeared and was cross-examined. He was not at all questioned respecting the duties which he mentioned in his affidavit which he also owned during the course of proceedings as such I am of the considered view that the petitioner remained in the category of workman even after his promotion as he was performing the duties which he was earlier performing as an Assistant Accountant.
14. The said point which cannot be condoned by this Commission is that the Management has floated the order, dated 30-12-2000 of the then learned Chairman whereby the Management was restrained from passing any adverse order against the petitioner. The parties may tell a lie but the record would never do the same. In this case admittedly the termination letter did not see the light of the day till 3rd of January, 2001 when the same was sent to the petitioner on the said date through registered post. The plea of the Management that the letter of termination was sent on 23rd of December, 2000 loses all its force as Rehmat Ali who according to them was entrusted with the service of the termination letter was never produced in the witness-box. The alleged termination letter was sent through registered post on 3rd of January, 2001. Furthermore when the petitioner approached the respondent functionaries for the redressal of his grievance consequent to the direction of this Court dated 4-3-2005 made in Case No,4A(15) of 2001-L the Management rejected his claim through letter dated 3-5-2005. In that letter the Management itself has mentioned the period for which he was denied the benefits from 4-1-2001 to 14-6-2003. This certainly is an admission on the part of the Establishment that he was retired with effect from 4-1- 2001. It would be appropriate to reproduce the important contents of the Management letter dated 3-5-2005 which are in the following terms:- "3. You have demanded for payment of service benefits, bonus, five per cent and leave encashment till your 65 years of age, i,e, upto 15-6-2003, whereas you were separated from your services on 4-1-2001. In this way you are asking for benefits for the period of 2-1/2 years (4-1-2001 to 14-6-2003) which you have not been served the organization. It is unjust to ask for benefits without service. However, in order to settle the matter, the Management takes lenient view and allowed you the following amount:-
(I) Total dues of Provident Fund Trust Rs.2,84,949
(II) Full and Final Settlement Bill Rs.3,9,059 Total Rs.3,24,008
15. Apart from this the interim restraint order was passed in the presence of Personnel Manager Mr. Saeed Azhar on 30th of December, 2000. He never pointed out about the order of 23rd of December, 2000 to the then learned Chairman. Thereafter, the case was listed on 19-1-2001 and then on 20th of March, 2001. Even on that date nothing was stated about the petitioner Ch. Muhammad Yousaf by the Personnel Manager.
16. These aspects bring me to an irresistible conclusion that the impugned order of termination was passed after the passage of the restraint order. As far as the impugned order, dated 23rd of December, 2000 is concerned it was in this nature.
"Sub. Termination/retirement from services.
' It is regretted to inform you that your services are no longer required by the Management and therefore, the same are terminated/retired with immediate effect; reasons:--
(1) According to your documents regarding your date of birth you are more than 60 (sixty) years and drawing pension from Employees Old-age Benefits Institution and at present you are working at supervisory nature of job and drawing pay more than Rs,800 (Rupees eight hundred' only) per month and you are not a workman as defined in Industrial Relations Ordinance as well as Standing Order Ordinance, 1968, and you are surplus on the reason mentioned above. You are entitled to receive one month notice pay in lieu of notice period.
' You may collect your dues, if any, from our cash office on production of clearance certificate.
(Sd.) Manager (Personnel)."
17. I fail to understand how the petitioner could be retired/ terminated on 23rd of December, 2000 on the ground of superannuation on reaching the age of 60 years when prior to his superannuation, the Management itself promoted him as an Accountant. His date of superannuation according to the learned counsel for the Management after his promotion was 65 years in view of Management's Regulation. This shows that the Management has passed this order abruptly in -a mechanical manner simply to keep away the petitioner from his union activities in which he was playing very pivotal role being the President of the Union . No opportunity of hearing whatsoever was provided to him before the issuance of the impugned order. Furthermore the respondent Management in its letter No,B-116 dated 3-5-2005 stated as under:- "3. You have demanded for payment of service benefits, bonus, five per cent and leave encashment till your 65 years of age, i,e, upto 15-6-2003, whereas you were separated from your services on 4-1-2001. In this way you are asking for benefits for the period of 2-1/2 years (4-1-2001 to 14-6-2003), which you have not been served the organization. It is unjust to ask for benefits without service. However, in order to settle the matter Management takes lenient view and allowed you the following amount:--
(I) Total dues of Provident Fund TrustRs.2,84,949
(II) Full and Final settlement Bill Rs.3,9,059 Total Rs.3,24,008
18. In this letter too it was the stance of the Management that the petitioner was separated from his job on 4-1-2001 while the restraint order was passed by the Commission on 30-12-2000. This aspect clearly demonstrates that the impugned order of termination allegedly passed on dated 23-12- 2000 was issued on 3-1-2001 after the passage of the restraint order. The Establishment/Management has flouted the order of this Commission in an unethical manner as quoted above. The record of the Management itself does not support the stance of the Establishment that the termination order was passed on 23-12-2000 prior to the issuance of restraint order.
19. The plea of the respondent-Establishment that the petitioner is getting the Old Age Pension in view of section 22 of the Employees Old Age Benefits Act (Act No,XIV of 1976) as such he is not entitled to any pay/benefit is devoid of any force. The Old Age Pension is given under the law to every insured person who reaches the age of 60 years. It does not say' hat it would be applicable only to those employees who retired from their jobs. This Old Age Pension is not subject to the retirement of an employee from his job. The only condition according to section 22 is that the employee must be an insured person and the contribution respecting him has been paid for a period not less than 15 years. Furthermore as stated in preceding paragraphs, the respondent- Establishment itself promoted the petitioner to the post of Accountant. The superannuation of the same would be 65 years age according to the Regulation. Now it does not lie in the mouth of the respondent to say that since he was taking old age benefits as such he was not entitled, to any remuneration for the post against which he was promoted.
' The above stated resume clearly demonstrates that the impugned termination letter legally passed on 23rd of September, 2000 which was issued on 3rd of January, 2001 is hereby set aside as having G been passed during the currency of the restraint order of the Commission as well as in clear violation of principle of natural justice. It is directed that the petitioner be paid all his benefits from 4-1-2001 till the date of his superannuation, which according to the Management itself was 65 years.