The above two petitions - have been filed by Daily Aftab Newspaper Limited and Muhammad Soomar separately challenging an order of Presiding Officer of Labour Court No. 6, Hyderabad dated 22-1-1981. Muhammad Soomar used to work as a composer in the press of the petitioner, that is, Daily Aftab News. On 23-11-1977, Muhammad Soomar ceased to be an employee of Daily Aftab News and joined Sind News, Hyderabad on 24-11-1977. According to him his service was terminated by the Manager of Daily Aftab News, whereas the plea of latter is that Soomar left the service of Daily Aftab of his own accord and joined Sind News because he was offered better pay and emoluments there
2. After about 10 months of leaving Daily Aftab News, Muhammad Soomar sent a notice to the Manager of Daily Aftab of claiming certain amounts as earned wages, payment for unavailed annual leave, gratuity and payment for unavailed weekly holidays. His claim was refused, hence he filed an application under section 15 of Payment of Wages Act before the Authority under the Payment of Wages Act. In his application, Soomar claimed follow--ing amounts from the, management of Daily Aftab :-
(1) Earned Wages for August to 24th November, 1977 amounting to Rs. 3,273.
(2) Payment for unavailed annual leave for 3 years i.e. 42 days Rs. 1,373 and paisas 43.
(3) For unavailed casual leave amounting to Rs. 457.80 paisas.
(4) For unavailed weekly holidays 156 days Rs. 5,101.20.
(5) Gratuity amounting to Rs. 1,700.
Total being Rs. 12,425.60 paisas.
His claim .Was partly accepted by the said Authority vide his order dated 15-9-1980 to the extent of Rs. 11,444. His claim for unavailed sick leave only was disallowed.
3. This order was not challenged by Muhammad Soomar in appeal. However, Daily Aftab Newspaper through its proprietor, filed appeal before the Presiding Officer Labour Court No. VI, Hyderabad who by his order dated 22-1-1981 reduced the claim of Muhammad Soomar from Rs.
11,444 to Rs. 5,609 (Rs. 1.085 on account of unavailed annual leave, Rs: 4,030 on account of unavailed weekly holidays and Rs. 494 on account of earned wages, that is, total amount of Rs.
5,609).
4. Both the parties were aggrieved by this order and have filed these petitions. Daily Aftab Newspaper (hereinafter referred to as the employer) has filed C. P. No.. 12 of 1981, while Muhammad Soomar (hereinafter referred to as the employee) has filed Constitution Petition No. 23 of 1981.
5. In his Petition No. 23 of 1981 the employee has claimed the follow--ing reliefs :-
(1) To hold and declare that the respondent No. 2, illegally denied and disallowed claim of payment on account of unavailed sick as well as casual leaves for 16 and 14 days respectively and to allow the same.
(2) To hold and declare that impugned order dated 22-1-1981 passed by the learned respondent No. 2, in disallowing the claim of the peti--tioner to the extent of Rs. 6,816.43, is illegal, void, without jurisdiction and nullity in the eye of law and to hold and declare that the petitioner is entitled to the claim of his application viz. Rs. 12,425.60.
(3) To hold and declare that both the respondents Nos. 1 and 2 erred in allowing compensation at ten times of the claim and allow the same.
(4) Award cost.
(5) Award any other relief as deemed just and proper.
6. The employer in his Petition No. 12 of 1981 has claimed the follow--ing reliefs :--
(1) Declare and hold that orders passed by respondents Nos. 1 and 2 on 15-9-1980 and 22-1-1981 respectively, are illegal, incompetent and without lawful authority.
(2) Stay the operation of the 2 orders passed by the Courts below till disposal of this petition.
(3) Award cost of the petition and
(4) Award any other relief, which this Hon'ble Court may deem fit in the circumstances of the case.
7. So far as relief No. 1 claimed by the employee is concerned, it may be stated that this was disallowed by the Authority by his order dated 15-9-1980 against which no appeal was filed by him before the Labour Court. Hence he cannot be allowed to claim this relief by this Constitution petition. This claim was not pressed by him even before the Appellate Authority, that is, the Labour Court while defending the appeal filed against him by the employee.
8. The second item of relief claimed by the employee is regarding disallowance of his claim of Rs.
6,816 by the Authority. This reduction was result of disallowance in whole or in the part the claim in respect of gratuity, earned wages for 3 months and weekly holidays of the empolyee. The third item of relief claimed by the employee in his Petition No. 23 of 1981 is that respondents Nos. 1 and ?, had wrongly disallowed his claim of compensation at ten times of his claim. This was also not agitated before the first Appellate Court, that is, respondent No. 1 by the employee. Hence. He cannot be allowed to urge this point in this Court either.
9. The question whether the Appellate Authority was. Competent to reduce the claim of the employee by Rs. 6,816 as stated above will be answered while discussing the petition of the employer. .
10. The employer in his Petition No: S-12 of 1981 has challenged the entire order of respondent No. 1 whereby the claim of the employee to the extent of Rs. 5,609 was allowed. The break up of this amount decreed against the employer by the Appellate Court is as under :-
(1) Rs. 1,081 on account of unavailed annual leave.
(2) Rs. 4,030 on account of unavailed weekly holidays and
(3) Rs. 494.17 on account of wages of November, 1977. Total Rs. 5,609.
11. Out of the above items of compensation, claim of Rs. 4.94.17 has already been accepted by the employer. This was the amount of salary which the employer was entitled to for his work during November. 1977 for 23 days. Learned counsel for the employer has conceded that he has no objection to the giant of this amount to the employee as unpaid earned wages. Now the question is whether the employee was entitled to any compensation on account of unavailed annual leave and unavailed weekly holidays.
12. Learned counsel for the employer has relied on section 49-B of the Factories Act in support of his plea that unavailed annual leave cannot be converted into cash compensation. The relevant provision is contained in subsection (3) of section 49-B of the Factories Act. However for the sake of convenience it will be proper to reproduce the entire section 49-B which is as under :- "49-B. Annual Holidays.-(1) Every worker who has completed a period of twelve months continuous service in a factory shall be allowed during the subsequent period of twelve months holidays for a period of fourteen consecutive days, inclusive of the day or days, if any, one which he is entitled to a holiday under subsection (1) of section 35.
(2) If a worker fails in any one such period of twelve months to take the whole of the holidays allowed to him under subsection (1), any holidays not taken by him shall be added to the holidays to be allowed to him under subsection (1) in the succeeding period of twelve months, so however that the total number of holidays which may be carried forward to a succeeding period shall not exceed fourteen.
(3) If a worker entitled to holidays under subsection (1) is discharged by his employer before he has been allowed the holidays, or it, having applied for and having been refused the holidays, he quits his employ--ment before he has been allowed the holidays, the employer shall pay him the amount payable under section 49-C in respect of the holidays.
From plain reading of subsection (3) it would be apparent that the employee is entitled to cash payment in lieu of unavailed annual holidays if he quits employment before availing the same.
According to subsection (2) annual holidays shall not accumulate for more than two years at the rate of 14 days per year. The employer has not specifically denied the claim of the employee that he did not enjoy annual holidays prior to his quitting the service. In this view of the matter the learned Appellate Court was quite justified in awarding him compensation for unavailed annual leave but this will be for 28 days at the rate of 14 -days per year for the preceding two years of the employee;s quitting of his service. The plea of the learned counsel for the employer that no cash compensation is payable to an employee who does not apply for leave, or whose leave application has been rejected or h abandons the service, is not tenable. In view of the clear provisions o section 49-B of the Factories Act, the employee shall be entitle' to such compensation even if he quits the job of his own accord. His claim is not dependent upon making application for leave. Subsection
(3) of section 49-B does not qualify the claim of an employee for cash payment in lieu of annual holidays, by any such condition as is pleaded by the learned counsel for the employer. The compensation for 28 days of unavailed annual leave is, there--fore, payable at the rate specified in section 49-C of Factories Act. According to this section the compensation shall be paid at the rate of average daily wages. The learned appellate Court has awarded compensation for 42 days amounting to Rs. 1,085 at 14 days pay for three years. However according to subsection (2) of section 49-B, annual leave does not accumulate fort more than two years. Hence the appellate Court apparently erred in granting B cash compensation for unavailed annual leave for the accumulated period for three years instead of two years. At the' average rate of daily wages the compensation for 28 days of annual leave for two years would come to Rs. 782. The amount of Rs.
1,085 awarded by the learned appellate Court on account of unavailed leave, being in contravention of section 49-B(2) is, therefore, reduced to Rs. 782 which would be pay of the employee for 28 days at the rate of his average daily wages. .
13, The next item which has been challenged by the employer is of Rs. 4,030 awarded by the appellate Court to the employer on account of unavailed weekly holidays. This amount has been awarded by the Appellate Authority under section 35 of the Factories Act. Learned counsel for the employer Mr. Ch. Rashid Ahmed has vehemently argued that section 35 of the Factories Act does not make any provision for cash payment in lieu of weekly holidays which might not have been enjoyed by an employee. Learned Appellate Court has allowed Rs. 4,030 as compensation for 156 weekly holidays of the three years service of the employee. He has not discussed whether section 35 entitles the employee to such cash payment under section 35. Reference in this connection has been made by learned counsel of the employee to section 35-A of the Factories Act which provides for compensatory holidays to an employee in lieu of weekly holidays he has been deprived of. Thus if the Employee did not enjoy any weekly holiday then he could have at the most claimed compensatory holidays under section 35-A. If there had been any violation of the provisions of section 35 or 35-A of the Factories Act on the part of the employer then the employer could have been prosecuted under section 60(b)(i) of the Factories Act. Had the employee not enjoyed weekly holidays during the entire period of his three years services, he would not have waited for such a long period to claim compensation for the unavailed holidays.
14. Learned counsel for the employee has failed to point out any provision of law which entitles the employee to cash compensation in lieu of weekly holidays not. Enjoyed by him under section 35 of the Factories Act. The orders of the Authority and the Appellate Court, that is, Labour Court awarding cash compensation to the employee for weekly holidays cannot be therefore be maintained. The same will be contrary to section 35-AA of the Factories Act.
15. So far as the claim of the employee regarding gratuity is concerned the learned Appellate Court has held that under S. O. 12(6) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordi--nance, 1968, it is admissible only if the worker/employee either resigns or his service is terminated for any reason other than misconduct. He. Was of the further view that since the employee had neither resigned nor his services were terminated, therefore, S. O. 12(6) did not apply in the case. The view of the learned Appellate Court does not appear to be correct. The employer itself has alleged in his petition that the employee left its employment of his on 23-11- 1977. The exact language in which this fact has been stated by the employer in para. No. 2 of its petition are as under :- "He left employment of his own on 23-11-1977 and joined another Newspaper namely Sind News on 24-11-1977."
From the above statement of fact it would transpire that the employee had left the service of the employer on 23-11-1977 voluntarily. Resignation is not distinguishable from leaving a service voluntarily. There is no provision in any of the labour laws which requires that resignation of a worker should be in writing. Hence if the employee left service of the employer voluntarily it would amount to resignation. The learned Appellate Court was, therefore, not justified in rejecting the claim of the employee as to gratuity. His order is, therefore, liable to be set aside so far as its relates to the amount of gratuity claimed by the employee. The First Court, that is, Authority had allowed an amount of Rs. 1,700 to the employee under the item of gratuity. As the employee is legally entitled to this amount. Hence his claim for the same is upheld.
16. In the result both petitions are partly allowed, and the employee is held to be entitled to the following amounts Rs. 494 as earned wages Rs. 782 in lieu of annual holidays and Rs. 1,700 as gratuity, total Rs. 2,976. Both the petitions stand disposed of accordingly. In the circumstances of the case there sball be no order as to costs.