' IRFAN SAADAT KHAN, J.--- This civil revision application has been filed against the Judgment and Decree dated 07.01.2014 passed by learned 3rd Additional District Judge, Mirpur Mathelo, in Civil Appeal No.44 of 2010.
2. Briefly stated the facts of the case are that the respondent joined the Applicant-company on 12.1.1991 on probation, however subsequently was confirmed after completing his probationary period on 01.02.1992. The respondent worked quite satisfactorily with the applicant-company and on 25.3.2006 tendered his resignation as he was to join a service in Saudi Arabia. Thereafter the respondent claimed that since he had served for more than 15 years in the Company he is entitled to be given the gratuity on gross salary basis amounting to Rs.17,37,800. However the respondent was only paid a sum of Rs.6,08,954/-, calculated on the basis of his basic salary. When the respondent inquired from the company as to why the amount claimed by him was not paid to him, it was averred by the applicant-company that since his service fell below 15 years length, hence as per the terms and conditions of the company, he is not entitled to be given the gross salary gratuity rather is entitled to be given gratuity on the basis of basic salary only. Being aggrieved with the said treatment the respondent filed a F. C. Suit No.38 of 2010 before the learned Senior Civil Judge, Mirpur Mathelo claiming therein that he is entitled to be given the gratuity, on the basis of gross salary and not the basic salary. The matter proceeded before the learned Judge, who vide his Judgment and Decree dated 22.5.2010, found the respondent not eligible to the said claim and rejected the same. Against the said Judgment the respondent filed a Civil Appeal No.44/2010 and the learned appellate Court allowed the said appeal by granting the claim of the respondent as prayed vide Judgment and decree dated 07.1.2014. It is against this Judgment/decree, that the present civil revision application has been filed.
3. Mr. Chaudhry Shahid Hussain Rajput, Advocate has appeared on behalf of the applicant- company and submitted that the order passed by the trial Court was in accordance with law as the learned trial Court while passing the impugned Judgment and decree considered various aspects of the case, evidence and other material and thereafter came to the conclusion that the respondent is not entitled for gratuity on gross salary basis. He submitted that a perusal of the judgment and decree passed by the trial Court would reveal that the learned appellate Court has allowed the appeal as prayed without considering the various material aspects of the case.
Learned Counsel while elaborating his viewpoint has invited my attention towards appointment letters, Trust-deed, Company rules and other necessary documents and thereafter submitted that a perusal of the above documents and rules would categorically reveal that those persons, who had worked temporarily on Badli, Trainee and apprentice have been excluded from the term "Member". He further submitted that though the respondent has served the company for more than 15 years but since has only become "Member" when he was confirmed, hence the period for which the cespondent had worked on probation period has to be excluded from the said eligibility period, as provided under the said rules. Learned Counsel thereafter read out relevant portion of such rules and stated that the learned Appellate Court while deciding the matter has simply brushed-aside these aspects and has granted the prayer of the respondent, without any legal and lawful justification. Learned Counsel further submitted that the appellate Court not only granted the gratuity but was so swa yed away in the matter that it also granted the compensation/damages, which were not even quantified. Learned Counsel thereafter submitted that since the judgment and decree passed by the learned appellate Court is a result of misreading and non-reading of the evidence and incorrect application of law, the same may be set-aside.
4. Mr. Raja Basantani, Advocate has filed his Vakalatnama on behalf of the respondent, which is taken on record. Mr. Basantani has vehemently refuted the arguments of the learned Counsel for the applicants and submitted that for all practical purposes, the probationary period has to be considered as regular service and there was no justification available with the applicant-company not to count the said period as regular employment period of the respondent. Learned Counsel submitted that the applicant has presented only one side of the picture and has not read out the entire rules. Mr. Basantani stated that the gratuity payable to the respondent has to be calculated from his probationary period. He also read-out various portions of the rules and thereafter submitted that the order of the learned appellate Court may be affirmed. While elaborating his viewpoint Mr. Basaritani submitted that the respondent had served for more than 15 years and hence is entitled for gratuity calculated on gross salary basis, hence is entitled to be given gratuity to the extent of Rs.17,37,800.00. He stated that the Judgment and decree passed by the appellate Court is based on the evidence and the statements given by various witnesses. He invited my attention to the deposition of one Shaikh Naveed Ahmed, representative of the Company, and stated that perusal of his statement would reveal that he has admitted the claim of the respondent in its entirety. He stated that the respondent was appointed as Trainee Engineer and subsequently his service was confirmed, meaning thereby that he was found capable enough to serve the company and hence no adverse inference could be drawn and the respondent remained in service without any break. Hence according to the learned Counsel the respondent is entitled to be given the gratuity which is to be worked out on gross salary basis. He stated that the terms mentioned in the rules as well as Trust Deed were duly met by the respondent, hence the gratuity amount as claimed by the respondent may be granted to him. In support of his above contentions, the learned Counsel has relied upon the following judgments:- 2002 SCMR 574 [Abdul Ghafoor v. N.H.A] 2013 PLC (C.S.) 1212 [Captain Salim Bilal v. PIA] 1998 SCMR 969 [Dr. Sher Wali Khan v. Dr. M. Masoom Khan] 2005 SCMR 100 [Ikram Bari v. N.B.P.] ' The Counsel for the respondent however conceded that the award of compensation/damages by the appellate Court was not justified since the amount of compensation/damages can only be granted by a Court when the same is quantified. However, in the present case since only a claim was made by the respondent which was not quantified, hence he was not entitled for the same. He, also admitted that the amount of compensation/damages awarded by the appellate Court was not in accordance with law, hence so far as this grant is concerned, he does not support the order of the appellate Court.
5. I have heard both the learned Counsel for the parties at some length and have perused the decisions relied upon by the Counsel for the respondent and the record.
6. Before proceeding any further, I deem it expedient to Firstly reproduce the definitions of various rules of the Trust Deed.
"As per Trust Deed 'MEMBER' shall mean a permanent employee of the Employer who is admitted to membership of the Fund under the Rules.
' As per Rules 'MEMBER' Shall mean a permanent employee of the Employer who is classed by the Employee as being in the Management cadre and including a whole time working director but excluding persons working as temporary, badli, trainee or apprentice employees. As per Rule 2.
2. ELEGIBLE SERVICE
(I) A member's Eligible service means all periods of continuous service with the Employer, including: (a).....................................
(b)...........................................
(c)................................................
(d)any period of service with the employer on probation provided that, at the end of the period of probation, the employee was confirmed in the Employer's service.
(e).........................................
(f)...................................................
(g) all service with the Employer prior to the commencement date, including such service so defined in (a) to above.
(2) Unless specifically provided to the contrary elsewhere in these presents, Eligible serve shall be calculated and expressed in year and factions of a year to the nearest month and any reference to the number of years of Eligible service shall mean the period of Eligible service so expressed.
"ELIGIBLE SERVICE GRATUITY.
Voluntary Resignation Less thanNo gratuity payable.
5 years.
5 years or more but less than 15 years.One month's basic salary for each Year of eligible service.
15 years or more. One month's gross salary, for each year of eligible service, subject a maximum of 20 months gross salary".
From the above definition, as per Rule-2, eligible service means a period of continuous service with the employer. It has also been mentioned that any period of service with the employer on probation subject to the condition that the employee was confirmed in employer's service is also included in eligible service. It is an admitted fact that the respondent remained in service without any break, including the probationary period, for a period of more than 15 years but the crucial issue which requires determination in the present case is whether the period of probation is to be considered for claim of gratuity or not? It is seen from the above definitions that a Member means a permanent employee who was admitted to membership of the fund. Here again it is not the case of applicant that the respondent was neither a permanent employee nor was admitted to membership fund rather it was admitted that the respondent was not only a permanent employee but was admitted as a member of the fund. Though as per rules a person working on temporary basis or badli, trainee or apprentice has been excluded from the term Member but equally true is the fact that once he becomes a Member his period of probation/training would be included towards his eligible service. In the said rule it is further clarified that eligible service would include at the end of probation if the employee is confirmed hence in my view the entire period of service of respondent falls within the definition of the term 'Eligible Service' as specifically provided in the said rule. Hence how the respondent's probationary period could not be considered as service is beyond comprehension and against the rules of the company. Moreover, it is also an admitted fact that the respondent became a member of the Trust, which does not impose any embargo or puts any discrimination with regard to the permanent employee or otherwise, hence in my view if the said Trust Deed is read in conjunction with the rules of the company it would become evident that only those employees who subsequently become a permanent employee fall within the definition of the term 'Eligible Service' and hence the benefits as available to a Member could be extended to those employees also. Hence I do not find any force in the arguments of the learned counsel for the applicant that the probationary period of the respondent under the given circumstances could not be counted for calculating the gratuity.
8. It is also noted that in the appointment letter dated January 7th 1992, it was categorically mentioned that the respondent is eligible to participate in the company's contributory/non- contributory plans effective from May 01, 1991, which period was a probationary period. Hence, how could the company now approbation and reprobate as on one side they are saying that the respondent is eligible to participate in the company's contributory/non-contributory plans effective from May 01, 1991 and on the other hand refused to grant him gratuity by excluding the probationary period? No explanation about this aspect is available with the counsel for the applicant. Since in my view the respondent has been found to be eligible and has been made a Member hence, the I respondent is entitled for the said benefit.
9. In the Trust Deed it has been mentioned that the employer i.e. Respondent is eligible in certain conditions to pay gratuity to some of its employee in accordance with its terms. It is therefore, incumbent upon the company to pay the due gratuity, as per the prescribed terms and conditions, to its employees. Moreover, perusal of the rules further clearly state that these rules are subject to the Trust Deed meaning thereby that these rules are subservient to the Trust Deed. Hence in case of any controversy between the Trust Deed and the Rules, the Deed has to be given preference over the rules. Hence, I am of the view that the applicant company has made an incorrect interpretation of the term Member and the respondent is entitled to be paid the gratuity, which is to be calculated on gross salary basis. I agree with the contention raised by learned counsel for the respondent that the exclusion of certain employees from the definition of 'Member' was only with regard to the eligibility criteria of those employees who could not become a Member of the said trust. However the moment these employees are confirmed and become a permanent employee than in such case eligibility criteria as mentioned in the Rule-2(d), would be met.
10. The upshot of above discussion is that this revision is partly allowed. So far as calculation of gratuity is concerned the same is to be made on the basis of gross salary and the order passed by the applicant authority is hereby upheld and the Revision on this aspect is dismissed. However, the order of the appellate Court in so far as the grant of damages to the tune of Rs.2.5 million is concerned the same is hereby set-aside being not based on any cogent material/ground.
' Instant civil revision stands disposed of in above terms along with the listed application.