' As the facts and law points involved in the two appeals captioned above are common, they are being disposed of together through this single judgment.
2. The appellants were retired at the age of 55 years, vide orders, copies of which are Exhs. P. 3 and P. 6, respectively. The orders of retirement have been tendered in evidence in respective cases of the appellants. The case of the appellants is that they were employed in 1949 and at that time C. S. R. Were applicable to them. In 1952 the government converted the transport establishment into non- Government. Body and added section 43-A in the Motor Vehicles Act, which gave powers to the Government to make rules and the Government accordingly promulgated Punjab Road Transport Rules, 1952. Rule 18 of the said Rules empowered the P. R. T. B. To lay down terms and conditions of service which were framed and enforced with effect from 1st June, 1954, but no provision of retirement was made and no age of superannuation was fixed. Even no instructions were in this respect issued as none has been brought on the file. On 14th August, 1955 the whole of Pakistan was converted into one unit and the Government framed West Pakistan Road Transport Board Rules, 57 in supersession of 1952 Rules. The rules of 1957 were superseded by the rules of 1963 and the latter rules were superseded by 1972 Rules (Exh. P. 10) framed by the Government. Neither in the rules of 1952, nor 1957, nor 1963, nor 1972 there is any provision of retirement because the question of retirement constitutes one of the terms and conditions of service, so the Board had to make such a provision. There was no provisions of retirement in the rules of 1954 framed by the P. R.
T. B. For the first time the condition of retirement was included in the rules of 1959 framed by the P.
R. T. B. Under section 12 of 1957 Rules. The rule is 33.1 and age of superannuation was fixed as 60 years, but provision was made in rule 33.2 that the competent authority may review the case when an employee was about to complete 25 years' service or was about to reach the age of 55 years, for his further usefulness in service and if the authority was not satisfied, the employee may be compulsorily retired on the completion of 25 years' service or on reaching the age of 55 years, as the case may be. A rider was placed upon rule 33.2 that the case of those employees would be examined only once for further usefulness on reaching the age of 58 years who had been employed before 20th September, 1961. Rule 33.1 was further amended on 6th December, 1967 reducing the age of superannuation to 55 years, but empowering the P. R. T. B. To retain in service any employee in special circumstances beyond 55 years upto 60 years of age. Parallel Regulations called Road Transport Workers/Workmen Service Regulations, 1965 were framed under rule 15 of the Road Transport Rules, 1963 approved by the R. T. C. On 18th November, 1965. These regulations did not contain any provision of retirement or age of superannuation. Regulation 19 was added to the Regulations on 15th November, 1967 fixing the age of retirement as 55 years empowering the appointing authority to grant extension at a stretch or in instalments upto the age of 60 years after obtaining fitness certificate from the Board's Medical Officer. The Regulations referred to above were not made in supersession of 1959 Rules, therefore, the latter rules exist. In its 49th meeting held on 11th January, 1977 the Board amended rule 331 of 1959 Rules and adopted Government Notification No, SOR-1 (S & GAD-4th January, 1972), dated 9th December, 1976 raising the age of retirement of all Board's employees to 60 years. The order is Exh. P. 6 dated 4th February, 1977. This is noteworthy that while amending rule 33.1 on 4th February, 1977 in 49th meeting, no provision was made that the appointing authority shall have powers or discretion to examine the question of usefulness of an employee to retire him either on completing 25 years' service or on attaining the age of 55 or 58 years.
3. Before rule 33.1 was amended on 4th February, 1977 it stood amended by amendment of 4th July, 1974, according to which, it has been splitted into two parts, i. e. (a) and (b), which read as under :- "Rule 33.1 (a) The competent authority himself or through a committee constituted by him will review the case of a Board employee to determine his further suitability/retention or otherwise when :-
(1) The employee is about to complete 25 years' service, or
(ii) When the employee is to complete 55 years of age.
(b) Continuation beyond 25 years of service/55 years of age will be governed by the recommendations of the competent authority/committee who may recommend:-
(i) Yearly/two-yearly/three-yearly extension, as the case may be : and the extension will be further reviewed in a similar manner, or
(ii) The retirement of the employee if he is not considered suitable fit for further employment."
4. Now, the question is whether while amending section 33'1 on 4th February, 1977, clauses (a) and
(b) were retained. The answer is 'No,' The conditions laid down in clauses (a) and (b) apply if the age of superannuation is 55 years. The question of extension arises when the age of superannuation has been reached. Before the amendment of 4th February, 1977 the question of extension did arise since admittedly the age of superannuation was 55 years but when by the amendment dated 4th February, 1977 the age was fixed at 60 years, adopting the Government notification supra, no question of considering the case for extension beyond 55 years could arise. If one is to retire before the age of superannuation then that retirement is called compulsory retirement. I am supported in my view by the phraseology used in unamended rule 331 of 1959 Rules. When in 1959 the said rules were framed under section 12 of the 1957 Rules the age of superannuation was fixed at 60 years and the provision was made in rule 33.2 to compulsorily retire an employee on completing 25 years' service or on reaching 55 years of age, if he was not found useful for further service of the Corporation. So if the intention of the amendment of 1977 had been that the employee of the respondent could be retired compulsorily at the age of 55 years or on completing 25 years' service, rule 33.2 since deleted by the amendment of 1967 would have been reviewed.
5. It has been argued by the learned counsel for the respondent that according to the Regulations of 1965, as amended, the age of superannuation is 55 years, therefore, the appellants were rightly retired. There is no force in this argument. Regulation 19 was added, as mentioned above, on 15th November. 1967, Whereas rule 33.1 of 1959 Rules was amended on 4th February, 1977. It shall be presumed that the Board was aware of the existence of Regulation No, 19 when it had on 4th February, 1977 amended rule 331 of 1959 Rules and adopted Government Notification raising the age of superannuation to 60 years. The Board, therefore, intentionally ignored Regulation No, 19.
Even otherwise amendment of rule 33'1 of 1959 Rules being latest would apply in preference to Regulation No, 19 of 1965 Regulations. I am aware of the fact that the Board in its 87th meeting held on 4th June, 1980 made reference to Regulation No,
19. But this is noteworthy that in 87th meeting rule 331 of 1959 rules was not amended. The Board only noted the provision of Regulation No, 19 but mere noting of it would not make rule 33.1 as ineffective. A rule-making body is presumed to know all existing rules. It cannot be said that while amending rule 331 on 4th February, 1977 the Board had failed to note Regulation No, 19 and noted it on 4th June, 1980 in its 87th meeting. Without amending rule 33.1 the age of superannuation could not come down to 55 years.
6. It has also been argued by the learned counsel for the respondent that rules of 1959 are not applicable to the appellants, inasmuch as according to rule 3, the said rules do not apply to those employees whose appointment and terms and conditions of service are governed by a special provision made by law e. g. The establishment covered by Standing Orders issued under the Industrial (Standing Orders) Act of 1946. There is no evidence that the P. R. T. B. Employees' conditions of service were made under any Standing Orders issued under Industrial Establishment (Standing Orders) Act of 1946. No Standing Orders are on the record. If at all any Standing Orders had been issued under Act XX of 1946, this is not known if any age of retirement had been fixed therein. Relevant portion of rule 3 of 1959 Rules reads as under :- "Any person in respect of whose appointment and conditions of service, special provision is made by or under any law for the time being in force e. g. The establishment covered by Standing Orders issued under the Industrial Employment (Standing Orders) Act, 1946."
' The requirement of the rule is that firstly there should be Standing Orders issued under the Industrial Employment (Standing Orders) Act of 1946 and secondly establishment concerned should be covered by the said Standing Orders. In other words the said Standing Orders should have been extended to such establishment. As observed above, firstly there is no evidence if any Standing Orders were ever issued under Act XX of 1946 and secondly whether by way of condition of service, was any provision of retirement and age of superannuation. If there had been existing any Standing Orders issued under Act XX of 1946 and they had provided any age of superannuation, they must have been produced. Simply the promulgation of Act XX of 1946 and its provision that within six months draft Standing Orders be put is not sufficient to show that actually the Standing Orders were issued. This is a question of fact which could be proved only by the production of the said Standing Orders.
7. The Industrial Employment (Standing Orders) Rules, 1946 also do not make any provision of retirement, For the first time provision of retirement was made in the rules of 1959. If the argument of the learned counsel is accepted then it would mean that the appellants cannot be retired at any age so long so they are capable of doing their work. Before the rules of 1959 this was the position and the appellants could not have been retired but after the rules of 1959 were enforced, they became bound by them and as the age of superannuation according to amended section B 331, as amended in 1977, was 60 years, they are entitled to remain in service till they reach the said age.
When there are two kinds of parallel rules, the ones which favours the workers are to b applied.
Since the appellants were illegally retired, they are entitled to the benefits for the period they on account of the order of retirement remained out of service. Since the learned lower Court did not advert to this aspect of the case discussed above and did not consider the various amendments putting rules of 1959 and Regulation of 1965 in juxtaposition, he fell in error.
8. It has been argued by the learned counsel for the respondent that retired persons are not workmen, so the applications under section 25-A do not lie. Reliance has been placed upon PLJ 1979 Tr. C. (Lab.) 238 and 1980 PLC 514. The former ruling is of this Tribunal and the latter -f Sind Appellate Tribunal. In both the rulings no ground is given for holding that a retired person ceases to remain a workman. In the former ruling my learned predecessor has merely reproduced the definition of workman given in section 2 (xxviii) of the Industrial Relations Ordinance, 1969. So far as the ruling of Sind Labour Appellate Tribunal is concerned only reference has been made to a ruling of Karachi High Court. The Karachi High Court's ruling does not appear to have been reported because the Sind Labour Appellate Tribunal has not given the citation. So this is unknown on what ground his Lordship of the Karachi High Court held that a retired person could not bring an application under section 25-A. The learned Sind Labour Appellate Tribunal has in a different case interpreted the words 'is employed' occurring in section 2 (xxviii) of the Industrial Relations Ordinance, 1969 and has held that a person out of service is not a workman. I regret I am not in a position to cite the said authority but it does exist. I have in many cases interpreted the words 'is employed' differently from the interpretation made by the learned Sind Labour Appellate Tribunal.
These words do not mean that the person bringing an action under section 25-A must be in service. They actually mean that the person concerned should have remained once in service. In order to give expression to the intention of the Legislature, necessary addition can be made in the words actually used by the Legislature. The intention of the Legislature becomes clear if we add the words `or has been' after the word 'is' and before `employed'. Now let us see whether actually the intention of the Legislature is that those persons can also come to the Labour Courts who are no longer in service for any reason. Not only in section 2 (xxviii) of the Industrial Relations Ordinance, 1969 but even in other enactments in the same manner present tense has been used while defining a 'worker' or a 'servant'. The other enactments for example are Standing Orders Ordinance, Factories Act, Workmen's Compensation Act, Railways Act, Civil Servants Act, 1973 (Central) and Civil Servants Act, 1974 (Provincial). In all the enactments present tense has been used. It the words 'is employed' are interpreted to mean only those persons who are in service at the time of bringing any action, then all the persons who have for some reasons ceased to remain in service would have no remedy to challenge the removal or retirement and only remedy will be to claim damages by means of a civil suit. The remedy of claiming of damages is already available under the ordinary law of the land, then what was the necessity of promulgating of special laws and the creation of special tribunals. I, therefore, hold that the persons removed from service or retired, are still workmen if otherwise they are covered by the definition and can bring their grievance to the Labour Courts for redress.
9. As a result of the observations made above, I accept the appeals and setting aside the impugned decisions of the learned lower Court, direct that the appellants should not be retired from service till they reach the age of superannuation i. e. 60 years. They are entitled to back benefits also, if any. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.