' This writ petition calls in question the validity of the judgment dated 16th March, 1981 of the Punjab Labour Court No, 1, Lahore.
2. The facts relevant for the disposal of the writ petition may be briefly stated. Respondent No, 3 was employed as an Accountant by the petitioner. His services were terminated on 14th October, 1974.
Thereafter, respondent No, 3 made an application' under section 15 (2) of the Payment of Wages Act, 1936, before respondent No, 2 for the payment of gratuity and bonus. The application was disposed of by order dated 10th December, 1977 hereby the claim of respondent No, 2 for gratuity was turned down but he was allowed Rs, 1,082 as bonus. On appeal, the Punjab Labour Court No, 1, Lahore, by order dated 16th March, 1981, modified the order of respondent No, 2 to the extent that an amount of Rs, 7,574 towards gratuity shall be paid to the employee. The Appellate Court observed that the number of employees in the petitioner's establishment in April 1973 was 59, but this number was reduced between 35 to 40 in November, 1973. It was further observed that once the law of gratuity became applicable to any employee, he had a vested right to receive the gratuity irrespective, of the fact that the number of workers was reduced in any subsequent year. It was held that respondent No, 3 was employed in 1973 and, therefore, he had a right to receive gratuity notwithstanding reduction of the number of employees in the petitioner's establishment in 1974.
3. Learned counsel for the petitioner has assailed the validity of the impugned order on the ground that in view of the provisions of second proviso to section 1(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 ; Standing Order 12(6) was not applicable to the establishment of the petitioner, as the number of employees at the time of termination of services of respondent No, 3 or any day during the preceding twelve months was less than fifty.
4. Learned counsel for the contesting respondent submits that the second proviso to section 1 (4) of the Standing Orders Ordinance applies to industrial establishments and not to commercial establishments. This being so, it is contended that since the establishment of the petitioner is a commercial establishment, therefore, the contesting respondent has a vested right to claim gratuity from the petitioner under the Standing Order 12 (6). The question whether the establishment of the petitioner is an industrial establishment or commercial establishment is a mixed question of fact and law. Learned counsel for the contesting respondent has frankly conceded before me that this question was never raised or urged either before the Authority under the Payment of Wages Act or before the Appellate Court. This being so, respondent No, 3 is estopped by his conduct to raise this disputed question for the first time in writ jurisdiction.
5. As regards the applicability of the Standing Order 12 (6), a bare perusal of section 1 of the Standing Orders Ordinance would show that in the case of an establishment wherein not more than forty-nine persons were employed on any day during the preceding twelve months, the provisions of clause (6) of the Standing Order 12 would not be applicable. The relevant date for the applicability of the Standing Order 12 (6) is not the date on which a workman was employed in an establishment, but the date on which the right to receive the gratuity matures. In terms of clause
(6) of Standing Order, gratuity is payable when a work man resigns from service or his services are terminated by the employer, for any reason other than misconduct. In the instant case, the total number of workers admittedly did not exceed fifty at the time of termination of the services of respondent No, 3 in the year 1974 or on any day during the preceding twelve months and, therefore, in view of the second proviso to section 1 (4), respondent No, 3 was not entitled to receive any gratuity on his termination from the employment of the petitioner. The scope of second proviso to sub-section (4) of section 1 of the Standing Orders Ordinance has been authoritatively determined by the Supreme Court in Messrs N. J. Silk Industries v. Presiding Officer, IVth Sind Labour Court and another (I). The relevant portion reads as under :- "Plainly read the above provision relates to the extent of, the application of the Ordinance. The second proviso qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment a portion which, but for the proviso, would fall within the main enactment. This being so it, has, to be given full effect and, therefore, Standing Order No, 15 which had been explicitly excluded could not be pressed into service irrespective of the consideration that the termination of service was for misconduct. If, as the single Judge has held that clause (5) of Standing Order No, 12 has not been excluded, hence the procedure prescribed in Standing Order No, 15 must be followed, does not appear to us to be realistic as Standing Order No, 12 (5) cannot operate in vacuum in the absence of 'Standing Order No, 15 whose application has been excluded by the second proviso. Needless to say that as the second proviso occurs in this section, relating to the extent application of the enactment, it must, therefore, be regarded to override the other provisions inconsistent therewith. The Labour Appellate Tribunal, Sind, in Messrs Lucky Silk Mills v. Khaliqur Rehman has also held that Standing Order No, 15 was not applicable to the case of an establishment which did not have more than 50 workers. The same view was taken in Abdul Hai v. Messrs S. N. M. Industries and another but in both the decisions, there is no consideration of section 12 (5) of the Ordinance. The decision turns on the interpretation of the second proviso to section (1) (4) of the Ordinance.
' For the reasons given above, we would approve the view taken by M. A. Rashid, J. In the case of Shafquat Silk Factory v. Presiding Officer, Second Sind Labour Court, Karachi and others in preference to his latter view taken in the case under consideration which we disapprove."
' Respectfully following the aforesaid interpretation, I hold that the petitioner was not liable to pay any gratuity to respondent No,
3. In consequence, the order dated I6th March, 1981 of the Punjab Labour Court No, 1, Lahore, is declared to be without lawful authority and of no legal effect.
6. Be that as it may, the learned counsel for the petitioner has agreed on compassionate ground to make ex gratia payment, of 50% of the disputed amount i. e. Rs, 3,786 to respondent No, 3 on or before 22nd April, 1982. The petitioner is, therefore, directed to make this payment to respondent No, 3 in the light of the undertaking given by the learned counsel for the petitioner.
' With these observations, the writ petition is disposed of with no order as to costs. {{FOOT NOTE}}
(I) PLD 1980 SC 283 {{FOOT NOTE}}