' CH. MUHAMMAD TARIQ, CHAIRMAN.--- Brief facts of the case are that the respondent No,l's appeal under section 17 of the Payment of Wages Act calls in question the order dated 31.12.2014 passed by the Authority under the ibid Act, whereby claim of the respondent No,1 for Rs,241,418/- on account of gratuity amount of Rs,2,04,34-6/- for ten years; leave for 28 days amounting to Rs,19,072/- WPF 5% and ten times fine amounting to Rs,1,90,720/- was rejected.
2. It was alleged that the respondent No,2 served the respondent No,1 concern as CLK from 8th February 2003 till 27th September, 2012. The claim of the respondent No,1 was resisted by the petitioner by maintaining that he was dismissed from service on account of misconduct on 31.10.2012 after necessary ex parte inquiry, whereafter time and again he approached management of the company for pardon and reinstatement, which was refused; he used to 'visit the office frequently and promised to pay back the company funds which were misappropriated by him. He accepted his mistake and undertook to pay back the amount duly used by him vide his request letter, dated 29.11.2012 and eventually he paid the total amount to the company i.e, Rs,201,720/-, as such, the management took lenient view and forgave him after recovery of the amount in question, however, the respondent No,1 asked for the issuance of service certificate showing that he has resigned from the job to enable him to get job somewhere else, as such, keeping in view his request. He was issued a certificate after showing acceptance of his resignation with the result that he got a better job as is evident from his letter dated 13.03.2013. After acceptance of his resignation and issuance of service / experience certificate the respondent No,1 filed the above claim of Rs,241418/- on account of gratuity amount of Rs, 204346/- for ten years, leave for 28 days amounting to Rs,19072/-, WPF 5% and ten times fine amounting to Rs,190720/-.
3. The matter was resisted by the petitioner by filing written reply. Learned Punjab Labour Court No,2, Lahore after framing of formal issues out of divergent pleadings of the parties, recorded. The evidence of the parties and after fulfilment of codal formalities accepted the grievance petition filed by the respondent No,1 in the following terms:- "9. At this stage learned counsel for the respondent has come up with the plea that the Authority had no jurisdiction to decide as to whether the appellant was dismissed or he resigned, as such, the remedy, for the petitioner was to approach this Court through a grievance petition. The contention has no force, in that, the petitioner did approach as per the record of the Authority to this Court through a grievance petition which on the application of the respondent under Order VII, rule 2, C.P.C. Was rejected on 29.05.2014 with a direction to the appellant to approach the Authority and said order has not been called into question before any forum. To add to it, admittedly certificate of service and honesty mark P/1 was admittedly issued by the respondent and the same way filing of the resignation mark P/2 by the appellant has not been denied, as such, it could conveniently be said that letter of dismissal etc. Of the appellant are ante dated as such, after the admission of the appellant, he has availed the leaves, he is only entitled to gratuity of Rs,2,04,346/- WPF 5% amounting to Rs,18,000/-. I may mention that correctness of the said amounts has not been challenged by the respondent except with the objection that since the appellant has resigned he is not entitled thereto."
4. Hence this revision petition.
5. Learned counsel for the petitioner, inter alia, contended that the impugned judgment is based on a misreading and non-reading of evidence produced by the petitioner. While passing the impugned judgment, the learned Presiding Officer, Punjab Labour Court No,2, Lahore completely failed to appreciate the very fact that the respondent No,1 being a dismissed employee is not entitled for any gratuity and other wages as laid down in 1995 PLC 530 and prayed that the revision petition be accepted and impugned judgment be set aside.
6. Conversely, learned counsel for the respondent No,1 has vehemently opposed the arguments and grounds of revision petition and prayed that the impugned judgment be maintained.
7. Arguments heard and record perused.
8. The respondent No,1 was employed in the petitioner factory on 08.02.2003 and worked there till 30.10.2012 when he presented his resignation Exh.P-2. The respondent No,1 claimed gratuity amounting to Rs,204346/- for 10 years, leave for 28 days amounting to Rs,19072, WPF 5% and 10 times fine amounting to Rs,190720/-. The claim of respondent No,1 was rejected by the Authority under the Payment of Wages Act, Lahore vide order dated 31.12.2014 on the ground that the respondent No,1 was dismissed from his services by the petitioner vide order dated 31.10.2012. The respondent No,1 challenged the order of Authority only to the extent of his claim under the Payment of Wages Act, in appeal before the Punjab Labour Court No,2, Lahore who after hearing both the sides accepted the appeal vide judgment dated 10.03.2015 and directed the petitioner to pay Rs,222346/-.
9. Learned counsel for the petitioner has focused his arguments only on the ground that the impugned judgment is not sustainable in the eye of law as it was passed by ignoring the provisions of 12(6) of the Standing Orders Ordinance, 1968.
10. For the disposal of controversy between the parties, the provisions of subsection (6) of section 12 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 is reproduced as under:-
(6) Where a workman resigns from service or his services are terminated by the employer, for any reason other than misconduct, he shall, in addition to any other benefit to which he may be entitled under this Ordinance or in accordance with the terms of his employment or any custom, usage or any settlement or an award of a Labour Court under the Punjab Industrial Relations Act, 2010 (XIX of 2010)], be paid gratuity equivalent to [thirty days], wages, calculated on the basis of the [wages admissible to him in the last month of service if he is a fixed-rated workman or the highest pay drawn by him during the last twelve months if he is a piece-rated workman], for every completed year of service or any part thereof in excess of six months: ' Provided that, where the employer has established a provident fund to which the workman is a contributor and the contribution of the employer to which is not less than the contribution made by the workman, no such gratuity shall be payable for the period during which such provident fund has been in existence [***1 [:] ' [Provided further that if through collective bargaining the employer offers and contributes to an "Approved Pension Fund" as defined in the Income Tax Ordinance, 2001 (XLIX of 2001), and where the contribution of the employer is not less than fifty per cent of the limit prescribed in the aforesaid Ordinance, and to which the workman is also a contributor for the remaining fifty per cent or less, no gratuity shall be payable for the period during which such contributions has been made.]
11. Admittedly, the respondent No,1 was dismissed from service for misconduct on 31.10.2012. The petitioner establishment levelled the allegation of the misappropriation against the respondent No,
1. It was contended in the show cause notice that the respondent No,1 misappropriated Rs,166330/- on account of payment of electricity bill and similarly respondent No,1 did not deposit the amount of token tax i.e, Rs,35390/-. On 30.07.2012, a show cause notice Mark R-1 was received by the respondent No,1 but he did not join inquiry and ultimately, the respondent No,1 was dismissed from service. It is pertinent to mention here that respondent No,1 on receipt of show cause notice deposited the entire misappropriated amount which amount to the confession of guilt by the respondent No, 1.
12. The order of dismissal was never challenged by the respondent No,1 before the competent authority which has attained finality. Thereafter, under the provisions of subsection (6) of section 12 of Industrial and Commercial Employment (Standing Order) Ordinance, 1968 the respondent No,1 cannot claim the amount of gratuity etc.
13. The upshot of above discussion is that the learned Punjab Labour Court No,2, Lahore has not taken into consideration the mandatory provisions of law mentioned hereinabove and passed the impugned judgment which is not sustainable in the eye of law. Hence revision petition is accepted and the impugned judgment is set aside.