' SYED AKHTAR NAQI NAQVI (SENIOR MEMBER).--- The petitioner is a retired DISTE Pakistan Railways.
He had earlier applied for his premature retirement w,e,f, 29-6-2002 through applications,' dated 16-1-2002 and 18-5-2002. However, the said applications were rejected by the respondent- establishment through their letter, dated 24-5-2002 due to the pendency of a show-cause notice against him. However, the petitioner through his application, dated 17-1-2003 again modified his date of premature retirement to take effect from 30-6-2003. With regard to the show-cause notice, the petitioner applied to the respondents for supplying the copies of the relevant record/documents resulting in the show-cause notice but the same was declined on account of non-availability of the same hence an application filed by the petitioner. This Commission directed the respondents vide order, dated 4-9-2002 passed in petition No,4A(101)/03-L to supply the said copies. However, the DS Pakistan Railways Peshawar of his own issued a notice of premature retirement of the petitioner on 8-3-2002 effective from 30-6-2003 and withheld the leave encashment for amount 180 days. The petitioner assailed this action of the respondents before this Commission by means of a petition bearing No,4A(101)/03-L which was disposed of by this Bench vide order, dated 1-9-2004 and whereby the date of retirement of the petitioner, was determined as 30-6-2003 instead of 29-6-2002 or 8-3-2003 as directed by means of the impugned order. The petitioner was also served with a notice to pay a sum of Rs,38,970 which was also challenged by means of the aforesaid petition about which the petitioner's contention was that the same had been waived off by the competent authority but this contention was not accepted by this Bench by means of the aforesaid orders and it was observed that it was to be seen by the respondents whether the General Manager was competent to waive off the said amount and if so, was it actually waived off or whether it was refused as averred by the respondents and for this purpose it was observed that the petitioner might move the concerned department and in that case the latter was directed to dispose of the issue. The petitioner has now contended that he moved applications in compliance with the aforesaid directions but of no avail and instead, vide letter, dated 19-7-2005 based on an illegal opinion it has been directed to deduct/recover Rs,38,970 with interest from the pensionary benefits of the petitioner. This letter has been assailed by means of this petition:
2. The respondents instead of submitting the reply to the petition opted to file an application under section 1(4)(d) of the IRO, 2002 read with Order VII, Rule 11, C.P.C. For dismissal of this petition on the ground that the petitioner being a retired civil servant could not approach this Commission for redressal of his grievance, if any, that he has not annexed any certificate of trade union activities along with the petition and that this Commission has no jurisdiction to entertain the instant petition in view of the bar contained in section 1(4)(b) of the IRO, 2002. It was also contended that on same cause of action the petitioner's case was dismissed by this Commission on 1-9-2004 passed in petition bearing No,4A(101)/03-L against which order the petitioner had preferred an appeal which is still sub judice. It was also contended that the petition has, been filed with mala fide intention just to blackmail and harass the respondents as the petitioner wants to get implemented the order of some other Court through this Commission and that retired persons could not become members of trade union hence allegations of victimization and trade union activities are frivolous and concocted. This petition was also contested by the petitioner. This order shall dispose of the aforesaid petition. I heard arguments addressed at the bar and have perused record.
3. In this application under Order VII, Rule 11, C.P.C. The respondents have mainly raised a legal proposition that the petitioner being a retired employee cannot invoke the jurisdiction of this Commission. All other grounds taken in the petition are connected with question of facts or are not relevant keeping in view the requirement of Order VII, Rule 11, C.P.C. However, it is an admitted position that the petitioner has been retired from service on the basis of his own offer made to the respondents for this purpose. There was some dispute with regard to the date of retirement and for this purpose the petitioner filed a Petition bearing No,4A(101)/03-L. The petitioner had filed this petition for the reasons that he was not retired from service on the basis of this offer which was incumbent upon the respondents to have either declined his application or to have accepted the same in letter and spirit. Initially the respondents declined the offer of the petitioner for his premature retirement but thereafter he was retired by the respondents for their own reasons w,e,f, a date earlier to the date for which the petitioner had requested. He approached this Commission and by means of order, dated 1-9-2004 passed in the said petition his plea was accepted to the extent of his voluntary retirement w,e,f, the date that he had given in his offer for retirement and not w,e,f, the date that the respondents decided. At that time the petitioner fell under the definition of workman as given in the IRO, 2002. The petitioner's contention in that petition was also that a claim of Rs,38,970 had been waived off by the Railways Administration and that the matter was also adjudicated upon by the learned Special Judge Central in whose Court this amount was deposited and the learned Court had returned that amount to the petitioner. This part of the petitioner's relief was declined by means of the aforesaid order and the petitioner was directed to move a petition to the concerned authorities and, get the matter resolved. It was thereafter that the petitioner has been asked to pay the aforesaid amount by means of the impugned letter, dated 19-7-2005 or the same amount has to be recovered from his pensionary benefits which has been assailed by means of this petition.
4. In the light of the aforesaid discussion one thing is proved, that the petitioner is a retired employee of the Pakistan Railways. He voluntarily retired from service w,e,f, 30-6-2003 whereas the impugned letter has been issued after about two years of his voluntary retirement. The learned counsel for the respondents has contended that the petitioner is no more a workman hence there is no question of any unfair labour practice on the part of the respondents against him or his victimization on account of his trade union activities which are connected with his service which is no more in the field and a retired civil servant cannot approach this Commission. The learned counsel for the petitioner placed reliance on two judgments cited as 1977 PLC (C.S.) at page 87 and PLD 1981 SC at page 172. However, when confronted with the situation that both these judgments do not help him in determining that the petitioner still can claim his victimization on account of his trade union activities, has submitted his written arguments whereby he has referred to as many as 49 cases but has contended that no law was laid down with regard to a retired workman. He has however, contended that the instant petition relates to an allegation of unfair labour practice committed by the respondents when the petitioner was in service and was a workman. It was then argued that the pension and retirement benefits are the terms and conditions of service under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and Section 63(c) of the IRO, provides that discrimination against any person in regard to any condition of employment is unfair labour practice. Same way in section 63 subsections (1)(a) to (j) in most of the clauses the word "any person" has been used instead of a workman and that the petitioner falls under the definition of a workman as provided under section 2 subsection (xxx) of the IRO, 2002 as the petitioner was discharged from service by way of retirement obtained by the petitioner as a result of industrial dispute raised before this Commission by way of filing petition bearing No, 4A(101)/03-L.
5. For convenience I would like to reproduce the definition of worker and workman as given in section 2 subsection (xxx) of the IRO, 2002 which reads 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."
' A bare perusal of this section indicates that a worker/workman is one who is either in service or dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or his dismissal etc. Has led to that dispute. The petitioner has tried to confuse the situation. A perusal of the earlier petition bearing No,4A(101)/03-L and copy of the order passed by this Bench, dated 1-9-2004 (available on record) would indicate that for his own reasons the petitioner had applied for his voluntary premature retirement w,e,f, a certain date.
His only dispute was the date of retirement and not any hostile act of the respondents in that regard and his date of voluntary retirement as offered by him was determined by this Commission as the date of his retirement. That retirement was not a result of any industrial dispute. In other words the dispute was not his retirement but the date that he had offered for retirement. It is perhaps for this reason that section 2(xxx) of the IRO, 2002 has not used the words retirement along with the modes of removal from service like "dismissed, discharged, retrenched, laid off or otherwise removed from employment". Even otherwise the aforesaid retirement of the petitioner was not by way of punishment like compulsory retirement. It was instead a voluntary retirement as discussed earlier. In such situation the employee severs all his relations with the management which relation continues by way of a grievance in matters of dismissal, discharge or retrenchment against the wishes of an employee or workman. It is far this reason that the learned counsel for the petitioner has not been able to give any instance or a single citation where a retired employee or a retired workman might have been allowed to move this Commission for the redressal of his grievance, since commission of acts of unfair labour practice is a condition precedent for approaching this Commission and which is possible only if there is a relation of employer and workman in existence.
6. So far as the petitioner's contention that word "any person" has been used in some clauses of section 63, I would absolutely not agree with the learned counsel for the petitioner. The use of this word does not mean that a farmer can agitate his claim before this Commission against his land owner. In view of the interpretation of statutes the philosophy of a law shall have to be looked into and the word shall have to be construed in the light of that philosophy. IRO, 2002 has been promulgated and for that matter the earlier IRO to consolidate and rationalize the law relating to formation of trade union, regulation and improvement of relations between the employers and the workmen and avoidance and settlement of any differences of disputes arising between them. This is opening line of the Ordinance itself which clearly means that all matters in this law relate to employers and workmen and vice versa. The use of word "any person" would also be interpreted in the background given above. Even otherwise section 49 of the IRO, 2002 under which this petition has been filed, provides the functions of this Commission and subsection (4)(e) of the said section provides that it deals with cases of unfair labour practice specified in sections 63 and 64 on the part of the employer, workmen, Collective Bargaining Agent, Industrywise trade unions or either of them or persons acting on behalf of any of them whether committed individually or collectively.
This section itself, indicates that the matters of dispute between employers andworkmen have to be taken to this Commission. The word "any person" in sections 63 and 64 has thus been clarified in this section under which this petition has been filed. It is therefore, an admitted position that the petitioner is no more a workman and is a retired civil servant. He has therefore, to take his grievance to the competent forum. So far as the petitiorter's contention that this petition relates to an allegation of unfair labour practice which was committed at the time he was in service and was workman, is not tenable since relief against that action has already been repelled by this Bench vide order, dated 1-9-2004. Now the order in dispute is dated 19-7-2005 which was passed after two years of the petitioner's voluntary retirement. It cannot be adjudged as a result of unfair labour practice because there is no existence of any unfair labour practice in the absence of any service of the petitioner as workman.
7. For all the foregoing reasons I find that the petitioner is not competent to raise his grievance before this Commission as he is no more a workman and he being a retired civil servant, this.
Commission has no jurisdiction to adjudicate upon his claim. The petition under Order VII, Rule, 11, C.P.C. Is therefore, accepted, with the result that this petition bearing No,4A(136)/05-L under section 49(4)(e) of the IRO, 2002 is beyond the jurisdiction of this Commission, hence the same is dismissed. File be consigned to record.