Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have challenged legality of judgments dated 02.04.2009 and 05.04.2010 passed by Punjab Labour Court No.9, Multan (hereinafter to be referred as the Labour Court), and the Punjab Labour Appellate Tribunal, Lahore (respondent No.1), respectively.
2. Pithily, respondent No.2 joined the Habib Bank Ltd. As Cashier on 01.09.1968 and was later on promoted as Officer Grade-III in the year 1978 and then Officer Grade-I in the year 1994. On 22.04.2006, he made a written request for his retirement which was accepted and he was retired from service w.e.f. 20.06.2006. As a result all the pensionary benefits were paid to him. He, being dissatisfied with the calculation of his pensionary benefits and non-encashment of his unveiled earned leaves, filed a Grievance Petition under section 46 of the Industrial Relations Ordinance, 2002 (IRO 2002), for determination of his gratuity according to last gross pay and encashment of unavailed earned leaves of 880 days which was partially allowed by the Labour Court, vide judgment dated 02.04.2009, whereby he was held entitled for gratuity at the rate of last gross pay whereas his prayer for leave encashment was turned down. Aggrieved by judgment dated 02.04.2009 both the parties filed independent appeals before respondent No.1 which were dismissed through consolidated judgment dated 05.04.2010; hence this petition.
3. Learned counsel for the petitioners, while opening his arguments, submits that since respondent No.2 had been serving the Bank as Officer Grade-I, he did not fall within the category of a workman, thus, his Grievance Petition before Labour Court was not maintainable; that if for the sake of arguments it is presumed that respondent No.2 was a workman, even then, after his retirement he could not agitate his grievance before the Labour Court; that all pensionary benefits were paid to respondent No.2 as per policy of the Bank, thus, he had no cause of action to approach the Labour Court; that according to section 2(xxxi) of Punjab Industrial Relations Act, 2010 (PIRA 2010), a retired person does not fall within the definition of a workman; that according to section 33 of PIRA 2010 a workman can only approach the Labour Court where any penal action was taken against him as a result of some industrial dispute; that respondent No.2 could approach the Authority under the Payment of Wages Act, 1936 (the Act, 1936) for gratuity while pressing into service the provisions of section 13 of the Act, 1936, as according to section 22 of the Act 1936 in the matters where the Authority has exclusive jurisdiction proceedings before any other forum are debarred; that as respondent No.2 was paid Provident Fund to which the Bank was also a contributory he was not entitled for grant of pension as a matter of right in view of the bar contained under section 12(6) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (the Ordinance 1968) and that since respondent No.2 has received pension in addition to the Provident Fund, he had no cheeks to agitate the matter before the Labour Court.
In support of his contentions, learned counsel has relied upon the cases reported as Dilshad Khan Lodhi v. Allied Bank of Pakistan and others (2008 SCM R 1530), Samad Rubber Works (Pvt.) Ltd.
Through M.D. V. Authority under Payment of Wages Act, 1936 and 2 others (2014 PLC 308), M/s Coca Cola Beverage Pakistan Ltd. Through Authorized Officer/Industrial Relations Manager v. Registrar Trade Unions Sindh and 3 others (2010 PLC 48), Muhammad Ashraf v. Pakistan Railways and others (2007 PLC 240), Taj Din v. Pioneer Steel Mills Ltd. (1984 PLC 403) and Abdus Salam Khan v. Pakistan Railways through Division Superintendent, Lahore (1984 PLC 572).
4. On the other hand, learned counsel representing respondent No.2, while defending the impugned judgments, states that as respondent No.2 was performing duties of manual/clerical nature, he fell within the definition of a workman, thus, proceedings before the Labour Court were competent; that despite his promotion as Officer Grade-I, respondent No.2 remained posted as Cashier in HBL Hussain Agahi Branch, Multan, with only interval of days, therefore, the petitioners cannot claim that respondent No.2 was not performing duties of manual/clerical nature; that to determine status of a person as to whether he is a workman or not the foremost proof is the nature of duties being performed by him; that no pension is being received by respondent No.2, therefore, plea of the Bank that he could not claim gratuity in view of the bar contained under section 12(6) of the Ordinance, 1968, is worthless and that the judgments of both the courts below, being in line with the law on the subject, cannot be interfered with by this Court in exercise of its Constitutional jurisdiction vested under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
5. The learned Additional Advocate General has supported the version taken by the petitioners with the additional submission that since respondent No.2 does not fall within the definition of a workman neither provisions of the IRO 2002 nor those of the Ordinance 1968 were applicable in his case.
6. I have heard learned counsel for the parties at
7. Considerable length and have also gone through the documents annexed with this petition as well as the case law cited at the bar.
7. While scanning the record, I have observed that respondent No.2 filed Grievance Petition before the Labour Court claiming Gratuity at the rate of last 30 days gross pay in addition to encashment of unavailed earned leaves. His claim to the extent of gratuity was accepted by both the fora below whereas that to the extent of leave encashment was dismissed. As respondent No.2 has not agitated the matter regarding dismissal of his claim for leave encashment, the controversy in the present petition is only confined to the rate of gratuity.
8. A cursory glance over the documents attached with this petition shows that respondent No.2, while claiming himself to be a workman, filed a Grievance Petition before the Labour Court, by invoking the provisions of section 46 of the IRO, 2002. The word "workman" has been defined under section 2(xxx) of IRO 2002 in the following words: "2. Definitions.- In this Ordinance, unless there is anything repugnant in the subject or context, (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." (emphasis provided) A careful look over the afore- quoted provision of law shows that the persons performing managerial or administrative duties have specifically been excluded from the category of workmen. Insofar as the case in hand is concerned, admittedly, respondent No.2 was serving as Officer Grade-I and at the time of his retirement he was posted as Branch Manager. In this scenario, one thing is clear that at the time of his retirement respondent No.2 was not performing duties of manual or clerical nature rather he was supervising a Branch. The question as to whether a person serving as an Officer in a Bank falls within the definition of a workman or not came under discussion before the apex Court of the country in the case of Muslim Commercial Bank Ltd. And others v. Muhammad Shahid Mumtaz and another (2011 SCMR 1475) wherein it has inter-alia been observed as under: - "Interestingly while appearing in the witness-box, the respondent referred to the nature of his work as Officer Grade-II and not that of a Manager. It may be mentioned that it was on account of the inquiry that was to be held against him on the basis of the Auditors report that he was transferred to another Branch not in a managerial capacity. Apparently this was done to facilitate the process of inquiry. It is thus, his capacity as Manager of the Branch, which was relevant for determining the status for the purpose of his standing to approach the Labour Court. We are in no doubt that in view of the aforesaid discussion the respondent was not a workman."(emphasis provided)
According to the afore-quoted judgment even an Officer Grade-II posted as Branch Manager was excluded from the category of workman. Thus, by no stretch of imagination, it is believable that respondent No.2, being Officer Grade-I, was serving as workman at the time of his retirement.
Learned counsel for respondent No.2 has tried to establish that respondent No.2 fell within the category of workman by stating that though he was promoted as Officer Grade-I but he remained posted as cashier in HBL Hussain Agahi Branch, Multan, with breaks of short intervals. In this regard, I am of the view that the application submitted by respondent No.2 for his retirement and the emoluments paid to him show that at the time of his retirement he was serving as Branch Manager. There is no cavil with the preposition that mere designation is not sufficient to determine as to whether a person is workman or not rather duties being performed by him are the determining factor, however, there is nothing on record to show that at the time of his retirement respondent No.2 was performing duties of manual or clerical nature to bring him out of purview of managerial or administrative capacity. In ordinary course, a Branch Manager is considered to be a supervisory officer and the duties being performed by him being of managerial nature cannot be dubbed as workman as held by the apex Court of the country in the case of Muslim Commercial Bank Ltd. And others (Supra) in the following words: - "The import of the above definition came under discussion in another case before this Court in GENERAL MANAGER, HOTEL INTERCONTINENTAL V. BASHIR A. MALIK (PLD 1986 SC 103) and it was held that "The test for determining the question whether an employee is a workman within the meaning of various statutes in the field of labour legislation is well-settled. The consensus of judicial opinion seems to be that it is the nature of the work done by the employee that would be the essential and fundamental consideration for determining the question and not his designation which is not conclusive .........The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted "
9. It is evident from record that the Labour Court, while accepting the claim of respondent No.2 regarding gratuity has mainly relied upon a judgment of this Court whereby a workman was held entitled for gratuity at the rate provided under the provisions of the Ordinance, 1968. In my humble opinion, the Labour Court while doing so has brushed aside the provisions of section 12(6) of the Ordinance, 1968 which for facility of reference are reproduced herein below: - "12. Termination of employment.
(1)......
(2)......
(3)...... (4)...... (5)......
(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" (emphasis) A cursory glance over the afore-quoted provision, especially the proviso thereto, shows that when the employer is also contributing towards Provident Fund not less than the contribution of a workman, the workman is not entitled to gratuity as a right. Learned counsel for the petitioners, while producing certain documents, has argued that since respondent No.2 was paid Provident Fund at the time of his retirement, he had no vested claim for gratuity.
Admittedly, at the time of retirement of respondent No.2 Pension Rules amended in the year 1998, relating to the pensionary matters of the employees of the Bank were in vogue. It is not the case of respondent No.2 that the said rules were not applicable to him. If the plea raised by the learned counsel for respondent No.2 that he was entitled for gratuity at the rate of last gross pay as per the provisions of the Ordinance 1968 is acceded to then section 12(6) of the Ordinance 1968 would impede his way to claim gratuity after receipt of Provident Fund. On the one hand, respondent No.2 has received the amount of gratuity at the rate determined by the Bank authorities on the basis of aforesaid rules and on the other he is clamoring for fresh counting of the same on the basis of provisions of the Ordinance, 1968. Respondent No.2 cannot be allowed to invoke the provisions of the Ordinance 1968 which are beneficial to him and to bypass the others which run contrary to his claim. If for the sake of arguments it is presumed that pensionary benefits of all the persons serving in various Banks of the country are to be reckoned according to provisions of the Ordinance, 1968 perhaps there would be no end to litigation by unscrupulous persons. Moreover, when respondent No.2 did not fall within the category of workman the provisions of the Ordinance 1968 were not applicable to him.
10. Though a specific objection qua locus standi of respondent No.2 to agitate the matter after his retirement before Labour Court was raised by the petitioners before the fora below but the same was not appreciated in its true perspective. In number of cases the apex Court of the country has held that prior to entering into arena of factual controversy or dilating upon merits of the case the forum concerned should decide the question of its jurisdiction first but the verdicts of the fora below being violative of the law laid down by the apex Court of the country cannot be blessed with stamp of authenticity rather deserve to be deprecated. Further the contents of the judgment rendered by the Labour Court shows that the same does not qualify the test of a speaking order.
The Labour Court instead of stating facts in a sequence and then to discuss the respective pleas of the parties opted to decide the matter in an entirely technical manner which being against the spirit of the principles laid down for a judicial verdict cannot be approved rather deserves to be nipped in the bud. Moreover, respondent No.1 instead of applying its independent mind has toed the line of the Labour Court and upheld findings of the forum below without discussing law on the subject.
11. Generally this Court does not interfere in the concurrent findings of the facts arrived at by the fora below, however, the jurisdiction of this Court to take care of orders passed by administrative tribunals/ courts cannot be abridged in the cases where a Court, forum or tribunal assumed jurisdiction in a matter which otherwise does not fall within its purview. Dealing with a similar question, the apex Court of the country, in the case of Muhammad Iqbal and others v. E.D.O.
(Revenue) Lodhran and another (2007 SCM R 682) has inter-alia observed as under: "7. There may be no cavil with the preposition that the question of promotion rests within the jurisdiction of competent authority, which would not be ordinarily interfered with by a Court of law but where the authority competent to award promotion or to appoint to a particular post acts in violation of law, in excess of jurisdiction, without jurisdiction or in colourable exercise of powers conferred on him, extraordinary jurisdiction of the High Court in terms of Article 199 of the Constitution can always be invoked for redressing the wrong. We are, therefore, not inclined to agree with the learned counsel that this was not a fit case for interference by the High Court in the exercise of constitutional jurisdiction. Admittedly High Court has not substituted its own decision for the act of the respondent, therefore, the submission is preposterous and not relevant."
12. For what has been discussed above, I have no hesitation to hold that at the time of filing of Grievance Petition before Labour Court, respondent No.2 did not fall within the category of a workman thus his Grievance Petition before the Labour Court was not competent. Consequently, instant petition is accepted and the impugned judgments of both the fora below are set aside. As a result the Grievance Petition filed by respondent No.2 before the Labour Court shall stand dismissed. There shall be no order as to cost.