The matter to which the reference is made, relates to the claim, for the recovery of the legal dues, through the judicial forum, invoking jurisdiction under section 51 of the I . R.O. On the basis of the Court's decision, dated 1st November, 1982, in the Application No.207 of 1981 by number of workmen, and the agreements subsequent thereto, dated 1-11-1982 arrived by settlement between the management of East Pakistan Enterprise and the office-bearers of the union.
2. Mr. Jeelani, applicant's counsel, has been more precise to prefer the claim of Rs.1,54,851.66 as per schedule submitted before the Court, claiming wages, gratuity, provident fund, bonus and arrears in respect of annual increment. This schedule forms part of the record. It is presented at the time of argument.
3. Para. 5 of the petition has further made more clear claim, when the applicant Ghulam Hussain who is the fireman has explained to the Court, if no appeal was preferred against the order, the order carried full legal consequences and subsequent, thereto of the agreement of 1-11-1982 claiming gratuity, provident fund, wages for the illegal removal, leave encashment etc.
4. Respondent, among variou8 objections raised regarding maintainability of application on the point of jurisdiction limitation, grievance notice as contemplated by law, has further challenged the claim on the factual aspect, to be more vague, too exorbitant, and highly exaggerated, having admitted, at the same time, by an employee that if he resigned on 5th March, 1983, admitting the acceptance of Rs.13,000 towards the final settlement of claim, no claim is due against the respondent, much less than the claim of Provident Fund that in view of the judicial precedents, the claim of gratuity is untenable if the respondent has contributed to the Provident Fund as subscription. The reference is made to case of Buxly Paints v. Izharullah published in 1984 PLC 33.
5. In this decision his Lordship has referred to the added proviso of Standing Order 12(6) which is to this effect: "Provided where the employer has established Provident Fund Scheme to which the workman is contributor the contribution of the employer which is not less than the contribution made by the workman, no such gratuity shall be payable for the period during which such Provident Fund has been in existence."
6. Mr. Mahmood Ghani, learned senior counsel has been of more assistance, in the citation of the judicial authorities, on number of legal questions, whether the applicant was no more aggrieved after the clearance of full and final settlement of claim. Secondly, whether the jurisdiction is properly invoked under section 51, I.R.O., and he is a workman.
7. Mr. Jeelani, senior counsel has also referred, mainly to the factual aspect, referring to the agreement, its clauses, its effect, in the context of the labour law regarding gratuity and the responsibility of the employer of the payment of Provident Fund, furthermore, the binding effect of the agreement reached after conciliatory attitude of both parties to end the litigation, after the Court's order of re--instatement.
8. Parties have filed affidavits in evidence and their effect on the factual points of importance.
9. To put it precisely, whether the jurisdiction of section 51 is rightly invoked? Whether limitation or notice of grievance is the mandatory requirement? In other words if the Court accepts the jurisdiction whether it bars the maintainability by limitation or making it incompetent as a judicial process for that purpose. Firstly, the Court has gone through the order of the learned Judge of Labour Court. Dismissal, of Ghulam Hussain, whose matter the Court refers. He was re-instated as the dismissal being illegal. The order also carried other legal incidents after re-instatement such as back benefits. Likewise, in November 1982, immediately after 2 months, the agreement came to have all classes mutually agreed and acceptable by both the union and the employer to have the legal effect. Mr. Jeelani has referred clauses (g) and (h) regarding gratuity and Provident Fund.
10. The agreement, in title, further made clear reference to the Court's order of re-instatement and the back benefits, superseding the old agreement, with new clauses. Clause(b) reads that the workers re-instated in the case, by the Labour Court will be re-instated with the back benefits, from the date of the commencement of the factory.
Clause (c) further made clear that the management shall pay, in final settlement of the entire period of unemployment which means the six months basic pay and C.L.A. And no other allowance-----. Clause (d) further agreed that the last drawn pay will not be reduced and agreed to allow increase in allowance of C.L.A. If need be, and the unavailed leave. Finally clauses (g) fixed the formula of paying gratuity and the basic pay drawn on 31-3-1980 and further gratuity in the terms of the clause----. Clause (h) further read that the workman who will not resume duty within one month of the re-start of the factory shall be paid compensation on the terms of the wages on 31-3-1979.
11. Clause (i), is very important, it reads that if factory is not started on the 1st of December. 1982. The workers will be entitled to the benefits which are awarded under the decision of the Labour Court , instead of compensation. Then there is classification that this settlement shall be the settlement of worker's claim as the subject-matter of the issue in Applications Nos.207 and 314 of 1981 and the liquidation proceedings will be withdrawn by the union.
12. With this background there is question of the legality of claim, raised by Mr. Mahmood Ghani, that after Mr. Ghulam Hussain resigned on 5th March, 1983, the claim of Rs.13,000 acknowledged by him is the final settlement. Further, if the claim is preferred on the basis of settlement and the benefits received therefrom by mutual consenses, reference is made by him to section 51, I.R.O., which is not applicable.
13. To understand the provision, section 51 is in two parts. Subsection (1), reads that if money is due from employer under settlement, award or decision of the Labour Court or arbitrator may be recovered in arrears of land revenue. Clause 2 reads that if workman is entitled to receive from employer, an benefit, under settlement or decision of the Labour Court----, which is capable of being computed in the terms of money, the amount at which such benefits shall be computed, may subject to the rule be determined and recovered as provided in subsection (1) and paid to the workman within specified date.
14. On the language of subsections (1) and (2), of the provision, this jurisdiction appears to be in the nature of execution proceedings, for the speedy recovery of the claim, distinguishable from the provisions of section 25-A to which rigidity of notice requirements and limitation applies of the cause of action, as in the case of dismissal, removal, retrenchment and discharge and other incidental rights, challengeable in context of section 3 Standing Orders Ordinance. This provision also, in, apparent language, further adds, that those benefits which have accrued under the settlement and under Court's decision other than those rights "guaranteed understood in section 25-A" by the' different language, in the entire context.
15. The view that the learned counsel Mr. Mehmood Ghani has taken, the Court is of the opinion that on the reference of provision of subsection (2), in particular of section 51, I.R.O., the jurisdiction applicant has rightly invoked where no limitation or the notice of grievance is the mandatory requirement. Obviously, the object appears to be of the process of speedy recovery to obviate the hardship This is what the Court understands the provision.
16. The second contention of Mr. Mahmood Ghani is that applicant is not a workman. This objection has no force, in the context of the Court's decision which was not appealed against or any objection raised in the original proceedings, and found mention in the judgment.
17. Third contention of learned counsel Mr. Mahmood Ghani is that applicant is no more aggrieved after the clearance of dues in final and full settlement, after resignation. Indeed the counsel is correct that after the dues are cleared which was the obligation, and as a liability of discharge on the employer, he remains no more aggrieved, if he has accepted the amount which is estoppel by conduct and representation. At the same time, the counsel may be aware that the dues understood in both the legal and judicial sense, carries certain judicial meanings. The legal dues which are admissible by law secondly if the Court of law has directed the back benefits to be awarded as consequence of wrongful dismissal, no agreement subsequent to the Court's decision can bind the employee, contrary to the spirit of decision, which will be otherwise against public policy or against statute. If by mutual consenses the concession of back benefits is granted to the employer, this does not affect the decision. At the same time, if there is no reduction of the terms and conditions contrary, to the Court's order under settlement by mutual consenses and not in accordance with the provisions of labour law or of the applicability of Standing Order 3 or 4, whether has the force of applicability--Such settlement though have been recognized by law of those same legal incidents to arise therefrom. But the Court's decision which is the opinion of law, in the Court's view, is, of high judicial sanctity.
18. The counsel has also examined the points of controversial nature, why the amount of Rs. 13,000 was received by Mr. Ghulam Hussain in final settlement of claim and, therefore, there is nothing to be adjusted or returned when the acknowledgement was voluntary. Thirdly whether all the entitlements, as emphasized in subsection (2) of section 51, I.R.O., were, due to the applicant as a natural consequence of the benefits, received from the Court's decision and settlement When Mr. Ghulam Hussain was paid Rs. 13,000 on his voluntary resignation including all the benefits. These are the lines of directions on which Mr. Mahmood Ghani wants clarification.
19. On the review of evidence as a whole, the Court has found that Mr. Ghulam Hussain, has made unqualified confession that he had received Rs. 13,000 at the time of resignation. If on his part, there is basic omission to tell the truth, in his earlier averments, the Court has taken serious view of his liability on oath which he did not discharge.
20. However, with that background, if the Court further proceeds, another important, but said aspect, has come before the Court what is the truth. Whether the agreement Annexure-B is the genuine document or the copy produced by the respondent with his initials on each page be made as the basis of reliance on the merits. Much has been said on the document's genuineness where in clause (h) the word liquidation proceedings are used, in the hand written lines of the clause. On the other hand Union has claimed that it did not exist, otherwise all other clauses remain intact with no controversy. Simultaneously, there is also no denial of the annexure, in particular in the reply statement if referred in applicant's petition. This issue of omission and denial of the words liquidation proceedings the Court leaves as it is but putting either of the party, of all the legal consequences if subsequently established as a perjury or to say subsequent addition made with ingenuity. This is a fact of the proof. Both parties have led no evidence which position is correct?
21. Presently for the purpose of the merits of this case and the clauses to be read, on the points in issue, for the recovery of the benefits, except the clause of withdrawal of liquidation proceedings, both parties will agree that the agreement as a whole is not disowned, by either party regarding the contents except that aspect.
22. If it is admitted position that applicants, have not worked and the factory is closed since April 1981 till 14-7-1986 which is the date for filing affidavit by the employer, clause (i) is significant which reads as under:- "If the factory is not re-started on or about 1st December, 1982, then the aforesaid re-instated workers would be entitled to benefits awarded under the above directions of the Hon'ble Labour Court , instead of compensation of six months payable in 12 instalments."
23. If clause (b) again is referred in earlier recital it reads: "The workers re-instated by the Fourth Sind Labour Court will be re-instated in service but without back benefits."
24. Clause (c) follows immediately that the management shall pay full and final settlement of the entire period of all the employment, total amount of six months, basic pay including C.L.A. As ex gratia as compensation for the period of the unemployment. No other allowance will be payable.
25. Clause (d) reads that it has been agreed that the last drawn pay will be reduced now to the were rate as existed on 31-3-1980 and then there are other clauses.
25. The Court has examined all the aspects of settlement, the effect of the Court's decision and the clauses and its enforcement.
26. It appears that when the settlement was made both parties had, in view, that factory will re- start, therefore, clause (i) was added, in the case of this eventuality, that if the factory is not started, should the clause (i) operate because the entire recital of the settlement refers the court decision of which the subsequent agreement has been entered into to end the litigation. If Mr. Ishaque Bhagat has made statement in affidavit that Factory remains closed till today the position reverts that all the back benefits which applicant enjoyed under the Court's decision are to be awarded to Mr. Ghulam Hussain at the time of the resignation or the period of service from the, date of dismissal including all entitlements under the labour laws,
27. Regarding gratuity and Provident Fund another controversy has been raised that Books of Account of Provident Fund have not been produced by the employer. The employer has given this explanation that all the document are in possession and the control of the union and made the reference of the letter of 30th January, 1983 to show that management had addressed the letter to Mr. Rahim Baig, President of the Union to hand over the document or the Books of Account. He has also made reference to letter of 9th January as a reminder. The Annexure-A is the letter which has not been replied and there is also information to the Labour Department.
28. The Court has examined the state of the mind of the respondent and in view of the state of mind if no letter is from the Union to show that the Books of Accounts is not in their possession but property of employer, it is serious aspect. The Court also further referred the affidavit of Mr. Ghulam Hussain where he has made unqualified admission of the claim of Rs.17,633.66 being a Provident Fund including the contribution, from the employer, Mr. Mahmood Ghani has referred to the decision of Buxly Paint v. Izharullah. His lordship referred to added proviso of section 12(6) of the Standing Order which is to this effect: "Where the employer has established Provident Fund to which workman is contributor, the contribution of the employer which is not less than the contribution made by the workman no such gratuity shall be payable for the period during which such Provident) Fund has been in existance."
29. In view of this legal position, firstly how Union came in possession of these figures which shows that they are in possession of the Accounts Books. If the legal position is seen that if Provient Fund is contributed there will be no gratuity. Further, gratuity means the basic pay and the C.L.A. And not the allowances. When the Court refers to clause (h) where it is said that those employees who shall not resume duty within one month of the restart of the factory shall be paid compensation and gratuity and wages on the basis of the wages as are 31-3-1979. But if the factory has not started the gratuity obviously will follow of the last pay drawn what is in Standing Order 12(6). Similarly clause (g) which is above clause (h) gratuity has been calculated to be paid to the workers by mutual consensus for the different periods. Since all those clauses were interdependent subject to clause (i), in the Court's opinion the gratuity which should be paid, what the Court's decision, gave as back benefits, that is it will be now according to law, means, a gratuity, equal to 20 days, wages, calculated on the basis of the wages admissible to him, in the last month of service. Consequently the worker cannot have two choices if the law has made clear demarcating line that if Provident Fund is contributed, no such gratuity shall be paid. But at the same time the regard be had, that gratuity will not be payable during the period, Provident Fund has been in existence. So, on this principle, also both parties are to take note of this that disentitlement of gratuity is only upto the date where Provident Fund --was being deducted for the purpose of Standing Order 12(6).
30. It is unfortunate aspect that Books of Account have not been produced of Provident Fund by the Union or by the employer. They are shifting responsibility on each other. No reply was given of the letters by the Union. No compliance was made by the employer of the Court's directions for the production of the Accounts Books but the explanation given that record is in control of the Union, in his additional affidavit directing Mr. Rahim Baig to produce the scord. The Court has also examined another aspect, that both parties did not touch this aspect of the Accounts Books regarding custody in the cross-examination. With whatever backgrounds of the evidence, if the amount of Provident Fund has been shown by Ghulam Hussain it confirms the Court believes that record is in possession of the Union and they are in better position to show what was the contribution of the employer which they have so stated. The amount of Provident Fund, therefore, shall be considered as final, if no evidence is led upto the date of the deduction.
31. In the result the applicant is entitled to the back benefits granted the Court from the date of dismissal and all the entitlements which permanent workman enjoys will be availed till the rest nation. Regarding bonus if the factory is not working there is neither production nor the profit to share with the employer under 10(c) of the Standing orders. If no Provident Fund is being deducted gratuity is payable.
32. However, the Court is to add further in this decision that number of cases of the East Pakistan Enterprise are before the Court, pending since long time. The Court expects that the both parties to maintain the spirit of the ordinance for early disposal and to end the litigation with no end.
33. The Court is also of the opinion that if the worker or the employee has earned his legitimate living by the sweat of his brow if not the moment delay, in the remuneration of his services for the earned labour, the Court will call it as a trust. Likewise, if the employee has made no legitimate earnings of which, he is not entitled according to law, there is equally obligation on him to demand what is just. If the employee imposes a false claim and conceals the facts from the Court or from the employer that no dues were paid which he had otherwise received partly, it is also mental dishonesty. The human dignity of the labour is a universal concept. Equally there is obligation on him to demand what is just and due to maintain the equity of the relationship I of master and servant.
Order accordingly.
M.Y.H. /912/ Lb