' ABDUL QADIR MENGAL (MEMBER).--- Through this common judgment I have intended to dispose of above two appeals, filed against the order of learned District and Sessions Judge/Presiding Officer IIIrd Labour Court Balochistan dated 12-11-2008, as the facts and law involved in the both appeals are same and common.
2. The facts of the appeals are that applicant Jalal Khan son of Bhawal Khan through application under section 46 of I.R.O. Read with section 12(3) Standing Order, 1968 challenged his termination or retirement from service on 29-11-2004, stating that, the reasons as mentioned in the letter of respondent for retirement are not correct. Actually applicant serving full devotion and with good health. Neither he attended the age of 55 years nor he could be removed after attaining the age of 55 years. Applicant prayed for his re-instatement in service with full back benefits.
3. After serving of notice, respondent filed rejoinder wherein that raised some legal objections about maintainability of the application and on merits, while opposing the application respondent stated that applicant was appointed on 1-11-1991 on the terms of clause 14 of the appointment.
Letter. It was held that he would be retired in age of 55 years. Applicant accepted the said terms and condition of appointment. So at this stage, he could no go beyond the same. Therefore applicant's application having no force same is liable to be dismissed.
4. Initially on conclusion of the case applicant's case was dismissed or rejected however on appeal before the Hon'ble High Court, case was remanded back to dispose of the matter affording both the parties opportunity of hearing including evidence. And after remand, case was concluded, whereafter present impugned order dated 12-11-2008 was passed against which both side have come through present appeals.
The both side have filed their written arguments. Mr. Azam Zarkoon Advocate present for applicant being appellant in Labour Appeal No,50 of 2008 while in cross Appeal No,46 of 2008 representative of company Mr. Zahid Aslam present and he presented the written arguments on behalf of company from the side of the counsel and requested that on the basis of the written arguments matter may kindly be dispose of.
6. Mr. Azam Zarkoon Advocate argued that the company had no right to retire a worker, who being fit to perform his duties as there is nothing in Standing Order 1968 for prescribing any particular age limit. Again learned counsel stressed that applicant would be in age of 54 years and could serve in the company for 60 years, as same is prevailing in many factories or companies. The representative of company while disputing the contention stated that clause 14 of the appointment letter dated 1-11-1991 shows that applicant would be retired in age of 55 years which he has accepted along with other employees of the company, so now he cannot challenge the same on reaching the age of 55 years. The representative of the company further stated that though the real age of the applicant has been mentioned in his appointment letter., However, the court has given him 1 year extra on the basis of medical certificate. The said concession period already has extended to applicant. Therefore, applicants appeal is liable to be dismissed and company version, through this appeal may kindly be accepted.
7. Considering the contentions of both side it appears that, at present bone of contention or point in dispute between the parties is that, whether applicant on basis of the clause 14 of his appointment letter dated 1-11-1991 is liable to be retired from service or he could serve more until attending the age of 60 years.
8. After hearing both side I have no difficulty to concur with the finding of learned District and Sessions Judge/Presiding Officer 3rd Labour Court Hub dated 12-11-2008. The authorities quoted by Mr. Azam Jan Zarkoon, counsel for appellant are not relevant to the facts of the present case, as 2005 PLC page 219, actually is about a case, between Mazdoor Union Nilam Glass Industries and Management of Nilam Glass Industries Limited.
' However on account of conciliatory basis a settlement was agreed between Mazdoor Union and management and after some time agreement was made public in which management has added a clause. {{ URDU TEXT }} ' When this fact came to the notice of the union, union went in to shock and this clause of agreement was later on challenged by the C.B.A. Before the court and the court held that no contrary clause against the benefits of workers could be added, through an agreement which could abridge the rights of the workers, it may be noted in that company the age limit was 60 years.
' The second authority NLR 1999 page 46, in this case initially some workers were appointed on contract basis and they served a considerable period, later on company retired them after giving their full emolument or wages. But soon after that company again appointed them on regular basis, through an agreement. In this case court held that no any agreement could extract from workers to deprive them of their permanent 'position or worker, so this authority also has no any relation to the facts of the case.
9. The respondent side argued that as in appointment letter the worker has agreed the age of retirement and after acceptance has signed the same, as such he could not go from that his position.
10. No doubt that there is a no any provision in standing Orders Ordinance, 1968, by prescribing any period for retirement which could be agitate as a right. While the terms and conditions which have been accepted by appellant/applicant at the time of appointment does not violate any provision of Standing Orders Ordinance 1968 which could give the right to appellant to challenge the same.
' In this respect, I have relied on 2000 PLC 58 which read as follows: ' Industrial Relations Ordinance (XXIII of 1999)
Ss. 25-A & 37(3)--- Retirement of employ attaining age of 55 years---Employee who was retired from service on attaining age of fifty-five years, challenged order of retirement alleging that since no age limit had been prescribed by any law for the time being in force concerning industrial establishment and that employee was not suffering from any physical disability, as retirement was mala fide and amounted to illegal termination of his service .... Letter of Appointment of employee contained a stipulation to the effect that employee would be retired from service of employer on attaining age of fifty-five years---Age of retirement as fixed at the time of contract of employment, having been accepted by employee, and acted upon by him, employee was rightly released from service on attaining specified age specially when employee remained unable to show that any age limit for retirement of worker had been prescribed under Industrial Relation Ordinance, 1969 or under any other law for the time being in force.
' The relevant portion of the same also reads as follows:-- ' Admittedly the appellant was employed, as a permanent worker in the respondent's establishment vide order of appointment, dated 1-9-1990, which contains stipulation to the effect that he shall be retired from the service of respondent/company on attaining the age of 55" years and vide letter, dated 1-4-1998 issued on behalf of respondent's establishment he has been retired at the age of superannuation i,e, 55 years on 30-4-1998 in terms of specified condition about -the age of retirement contained in the appointment letter, accordingly, the grievance notice has been replied in the terms. Both the parties have herein fore noted admitted the document placed on record and their respective pleadings who accordingly expressed that in order to set at the controversy about the age limit of the appellant for the purpose of retirement, no evidence is required to be led by any of the party in the proceedings, thus the learned Labour Court appropriately struck the point of determination who reproduced hereinabove. The learned counsel for the appellant remained unable to show that any age limit for retirement of a worker has been prescribed under IRO., 1969, or under any other law for the' time being in force to which a worker of the industry concerned is subject hence in my .Considered view the age of 'retirement of a worker will be governed by a.Settlement or by a contract of employment or by the resolution of an industrial Establishment made applicable at the time of the appointment of a worker.
' I have also relied on PLD 1977 Karachi (168) the relevant portion of the authority reads as follows:-- - ' I.R.O. (XXIII of 1969).
' S. 25-A---Retirement---Mala fide---Workman's dismissal held illegal in Labour Court and workman ordered to be re-instated--.Employer. Taking back workman but sending him on special leave with full salary. Meanwhile employer ordering retirement of workman at age of superannuation (55 years) according to long-standing practice---Employer, in ordering such retirement, held, cannot be said to have acted in mala fide manner---Unlimited service not guaranteed by any law, award or agreement nor a commercial or industrial concern under legal obligation to retain an employee beyond age of 55 years---Workman failing to show if any guaranteed or secured right was infringed by virtue of order of his retirement---Application under section 25-A, held, not maintainable in circumstances of case-West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12. [p.172] B et seq.
10. So being it means that the age of retirement fixed at the time of contract of employment and having been accepted by employee and acted upon him, then later-on, he could not change his position. So being the Appeal No,50 of 2008 filed by applicant haying no force same is dismissed, so as appeal filed by the respondent company vide Appeal No,46 of 2008 also fails as prima facie, the order of learned District and Sessions Judge/Presiding Officer 3rd Labour Court, Hub dated 12- 11-2008, having no any illegality impropriety. Therefore, same requires no any interference. Thus both appeals are dismissed with no order as to costs.