1. Muhammad Farooq filed the present Petition on I1-3-71 under section 34 of the Industrial Relations Ordinance, 1969 (hereinafter called I. R. O.) for enforcement of his right of payment of gratuity admissible under Standing Order No. 12 of the West Pakistan Industrial 8c Commercial Employment (Standing Orders) Ordinance of 1968 (hereinafter called the Ordinance).
2. The admitted facts are that the petitioner was a permanent driver with the respondent concern whose services were termi--nated on medical grounds with effect from 20-3-70. He was, however, not allowed gratuity under Standing Order No. 12 of the Ordinance. He made application to the respondent on 27-3-70 for a claim for gratuity which was finally rejected by order dated 8-6-70. He made subsequent applications dated 3-7-70 and 9-11-70 for a claim which were not replied. The petitioner, therefore, filed the present petition on 11-3-1971.
3. When notice was served on the respondent he admitted the facts but raised a preliminary objection that the application under section 34 of the 1. R. O. Was not maintainable as the same lay under Standing Order No. 18 of the Ordinance and that the application was the-barred.
4. The statement of the representative of the petitioners, Mr. A. M. Qureshi, was recorded on 31-3-71 wherein he admitted that the petitioner has not complied with the provisions of S. O. 18 of the Ordinance. In view of this statement and the objection raised on behalf of the respondent, arguments were heard to determine if the objections raised were valid or not.
5. The first thing to be considered is whether the petition under section 34 of the I. R. O. Is maintainable or not for a claim of gratuity admissible under S. O. 12 of the Ordinance Section 34, of the I. R. O. Reads as follows: - "34. Application to Labour Court.-Any collective bargain--ing agent or any employer or workman may apply to the Labour Court for the enforcement of any law right guaranteed or secured to it or him by or under any law or any award or settlement."
6. A perusal of the above Provisions of section 34 shows that a workman can apply to the Labour Court for the enforcement of any right guaranteed or secured to him by or under any law. The Ordinance is in force. S. O. 12 of the Ordinance under its sub-clause (5) provides for payment of gratuity to permanent workman at the the of termination of service. It is not denied that the petitioner was a permanent workman. This would show that gratuity could be paid to the petitioner under subsection (5) of S. O. 12 if there was no other bar for the payment of the same. It is, therefore, apparent that payment of gratuity is a right of a workman under S. O.
12. As such, the same can be enforced under section 34 of the I. R. O. The objection of the respondent that no application under section 34 for payment of gratuity under S. O. 12 of the Ordinance is maintainable cannot be accepted. The application for payment or gratuity maintainable under section 34 of the I. R. O. Read with S. O. 12 of the Ordinance.
7. The next question to be considered is whether a claim under S. O. 12 is admissible or not without compliance with the Provisions of S. O. 18 of the Ordinance' which provides how a workman is to proceed for the redress -of his grievance. S. O. 18 of the Ordinance is as follows: - "18. Grievance procedure.-Any individual workman who has a grievance in respect of any matter under this Ordinance intends to seek redress thereof, shall observe the following procedure :--
(a) the workman concerned shall bring his grievance to ` the notice of his employer, in writing, within fifteen days of the occurrence of the cause of such grievance, and the employer shall, within thirty days of such grievance being brought to his notice, inquire into the matter, giving the workman concerned an opportunity of being heard, and com--municate his decision, in writing, to the said workman;
(b) if the employer fails to give a decision within the period specified in clause (a), or if the workman is dissatisfied with such decision, the workman may make a complaint to the Industrial Court having jurisdiction, within thirty days from the date of the decision, or where the employer fails to give a decision, within sixty days of the workman bringing the grievance to the notice of the employer, unless the grievance has already been raised or has otherwise been taken cogniz--ance as in industrial dispute under the provisions of the West Pakistan Industrial Disputes Ordinance, 1968: Provided that no complaint shall be against an order of termination of employment of a workman unless the workman concerned is an officer of a registered Trade Union and his employment 14 alleged to have been terminated for his Trade Anion activities or unless the workman concerned, whether an Officer of a registered Trade Union or not, has been deprived of the benefits accruing to him under this Ordinance;
(c) .
(d) .
8. A perusal of opening words of S. O. 18 shows that any work--man who has a grievance in respect of any matter under the Ordinance and intends to seek redress shall observe the procedure laid down therein. Since the petitioner has alleged that he asked for payment of gratuity under S. O. 12 which has been refused to him by the respondent, it is obvious that he wants to seek a redress of a claim admissible to him under the Ordinance (S. O. 12) and will, therefore, have to observe 111: procedure provided in S. O. 18 of the Ordinance. In this connection reference may be made with advantage to the provisions of section 3 of the Ordinance which is to the following effect:- In every industrial or commercial establishment, conditions of the employment of workmen and other incidental matters shall subject to the other provisions of this Ordinance, be regulated in accordance with the Standing Orders."
9. The above provisions of section 3 clearly show that the condition of employment of workmen and other incidental matter shall be regulated in accordance with the Standing Order. Payment of gratuity a workman is a condition of employment, It has therefore, to be regulated in accordance with the Standing Order under the Ordinance. In view of the provision of section 3 of e the Ordinance read with the opening words of Standing Order 1 of the Ordinance, no room for doubt is left that a worker who has been denied the right of payment of gratuity has t observe the grievance procedure as laid down in Standing Order -No. 18 of the Ordinance to get redress.
10. It was contended on behalf of the petitioner that section 36 subsection (7) of the I. R. O. Provides that a Labour Court shall be deemed to be a civil Court for the purpose of adjudicating anal determining any industrial dispute so the procedure applicable for the redress of grievance of non- payment of gratuity will be, regulated by the Civil Procedure Code and not by the provisions of Standing Order 18 of the Ordinance. The contention is devoid of any force because section 36 regulates the conduct of the Labour Court in deciding matters of civil nature. The presence of a provision as to how a Labour Court is to work in a set of circumstances cannot absolves the worker of his liability as to how he is to conduct and what procedure he has to adopt in getting a relief under specific provisions of the Ordinance. Since the petitioner claims relief of a right which is guaranteed under S. O. 12 of the Ordinance, he has to comply with the provisions of S. O. 18 for the redress of that grievance otherwise he cannot given any redress. Section 34 of the I. R. O. Has provided a forum to him to get relief available to him under S. O. 12 of the Ordinance but before getting the relief, he has to comply with the Provisions of S. 0. 18 of the Ordinance for the admissibility of that relief.
11. Keeping in view the above principles of law, we have now to examine the facts of the case whether the petitioner has complied with the provisions of S. O.
18. The statement of his representative is that he has not complied with those provisions. The 'petition itself shows his services were terminated on 20-3-70. He made an application for payment of gratuity on 28-3-70 well within 15 days as provided in Clause (a) of S. O. 18 of the Ordinance. The claim of gratuity was refused to him by letter dated 8-6-70. Clause (b) of S. O. 18 provides that the worker has to apply to the Court within 30 days from the date of the adverse decision. In this case, the present petition was filed before the Court more than 8 months after the adverse decision was given by the respondent refusing to admit the claim of the petitioner for gratuity. The petition is, therefore, hopelessly the- barred, as such, the petitioner cannot be given any relief by this Court even if it be held that he was entitled to the payment of gratuity, though his right of payment of gratuity is contested by the respondent.
12. The result of the above discussion is that the present petition is dismissed. In the circumstances of the case, however, I leave the parties to bear their own cost.