The abovementioned two appeals arise from the decisions dated 15-11-1986 recorded by the learned Presiding Officer, Punjab Labour Court No.4, Faisalabad, whereby the grievance petitions of the appellants for retirement benefits and gratuity were dismissed. As the two appeals involve common questions of fact and law, they are being disposed of together through this single judgment.
2. The appellants were sweepers in the respondent Committee and they were served with notices of retirement dated 2-12-1979 to the effect that they would stand retired on 5-5-1980 on completing the age of superannuation Payara Masih, appellant, was retired on 5-5-1980 and Mst.
Nehamon was retired on 6-5-1980. The reason given by the learned lower Court for dismissing the grievance petitions of the appellants is that the Government has not framed rules under section 42(2) of the Punjab Local Government Ordinance, 1979. Gratuity was claimed at 20 days per completed year, which means that the appellants based their claim on Standing Order 12(6) of Standing Orders Ordinance, 1968. So far as pension and other benefits are concerned, the decision of the learned lower Court is correct and has not been challenged by the representative of the appellants during arguments, but the decision is incorrect so far as the claim of the appellants with regard to gratuity is concerned. In the written statement objections were raised that the respondent Committee was neither a factory nor an industrial establishment and that the appellants were governed by the rules framed under the Punjab Local Government Ordinance and could claim benefits there under only. Besides giving finding on the facts of the case, the learned lower Court has also said that the claim of the appellants was hopelessly time-barred. The learned lower Court on the point of jurisdiction has held that since the definition of workman given in the Punjab Local Government Ordinance is paramateria with the definition given in section 2 of the Industrial Relations Ordinance, 1969, the Labour Courts have jurisdiction.
3. The learned lower Court has not recorded any finding on the point whether the respondent Committee is a factory or industrial establishment. According to the definition of industrial establishment, a factory is included in it. "Factory" is further defined in clause (f) of section 2 of the Factories Act, according to which, the place including its precincts wherein manufacturing process is done and number of workers is ten or more, comes under the definition of factory. It has been argued by the learned counsel for the respondent that the appellants did not produce evidence with regard to the number of workers working at the tube-wells. He further says that Tandlianwala is a very small place where Municipal Committee has only one tube-well for pumping water. Since the objection was raised by the respondent that Municipal Committee Tandlianwala was not an industrial establishment, it had to produce evidence on the point. R.W.1 stated only this much that Municipal Committee, Tandlianwala was neither a factory nor an industrial establishment. He did not say that workers less than ten were employed. No doubt, the learned lower Court has not recorded any finding on the point, but since no cross-objections have been brought on behalf of the respondent, the point cannot be taken up at this stage. Since the grievance petitions of the appellants were dismissed, no doubt, the respondent could not bring appeals, but when the appellants brought appeals, cross objections could be raised on the points either decided against the respondent or had not at all been adjudicated upon. In the absence of evidence it cannot be said that the number of employees is less than ten. Since no evidence was produced on the point, this appears to be the reason that the learned lower Court did not touch this point in its judgment.
Even otherwise the appellants were justified in claiming gratuity under Standing Order 12(6). Even if it be said that the Municipal Committee is not covered by the definition of A industrial establishment, it cannot be ousted from the definition of construction industry defined in section 2(bb) of the Standing Orders Ordinance, 1968, which reads as under:- ---Construction industry' means an industry engaged in the construction, reconstruction, maintenance, repair, alteration or demolition of any building, railway, tramway, harbour, dock, pear, canal inland water way, road tunnel, bridge, dams, sewer, drain water works etc.--- Judicial notice of the fact can be taken that the roads, drains and sewers within the municipal area are constructed, repaired, maintained and reconstructed by the municipal committees. Likewise water works are also constructed, Municipal Committees supply drinking water by constructing and maintaining water works. The appellants being sweepers used to work with their hands and thus are covered by the definition of workman given in section 2(i) of Standing Orders Ordinance, 1968. They are covered by the definition of worker given in section 2(xxviii) of the Industrial Relations Ordinance, 1969 also as they are not covered by Exceptions (a) and (b). Neither they can be said to have managerial nor supervisory powers. They are low paid labourers and their wages do not exceed Rs.800.
4. The other point argued by the learned counsel for the respondent is that according to section 4 of the Punjab Local Government Ordinance, the said Ordinance overrides other laws. The section reads as, "The provisions of this Ordinance shall take effect notwithstanding anything inconsistent therewith contained in any other law".
5. It has also been argued that according to section 45 of the said Ordinance, a local council can establish and maintain a provident fund and pay gratuity, therefore, according to this section read with section 4 supra, Standing Order 12(6) is not applicable. The Punjab Local Government Ordinance overrides other laws notwithstanding any inconsistency but not when there is omission.
A careful consideration of section 45 would show that no power has been given to the local council to pay gratuity on retirement. Subsection (3) directs the payment of special pension or gratuity to the family of the servant in case the servant dies of disease or injuries contacted or suffered in the discharge of his official duties. It does not provide that on retirement the employee will be entitled to gratuity. So there is no inconsistency between section 45 of the Punjab Local Government Ordinance and Standing Orders 12(6) of Standing Orders Ordinance, but rather section 45 does not make any provision of payment of gratuity on retirement. So, the appellants are entitled to get benefit of Standing Order 12(6) and sections 45 and 4 of the Punjab Local Government Ordinance do not create any bar. Apart from it, section 45 enables the local councils to make provision of the provident fund etc, but the learned counsel has not cited any rule, whereby any provision of the payment of benefits contained in section 45 may have been made.
6. The other point argued by the learned counsel for the respondent is that Standing Order 12(6) is not applicable, because it provides payment of gratuity in case of termination and not in cases of retirement. He says that retirement does not mean termination of services. The argument has no force. In cases where the employee himself asks for retirement, it may be said that his services were not terminated, but where the employer retires an employee, retirement is a mode of termination of service. In the present case the respondent had served notices upon the appellants that on 5-5-1980 they would stand retired on account of completing the age of superannuation On 5-5-1980 Payara Masih and on 6-5-1980 Mst. Nehamon were relieved from their duties. Such a relieve from duty amounted to termination of their services, therefore, they are entitled to the benefit of Standing Order 12(6). There is no provision in the said Standing Order in the negative stating that the said Standing Order would not apply in cases of retirement.
7. So far as the point of limitation is concerned, the learned lower Court has wrongly held that the grievance petitions were time-barred. The grievance notices were sent on 22-5-1982 and the previous grievance petitions were brought on 6-6-1982, thus, they were within time. Those petitions were withdrawn on the statement of the parties on 15-7-1985 with permission to bring fresh ones and the fresh grievance petitions were lodged on 5-6-1986. The previous grievance petitions were withdrawn since the matter was referred to the Government. The question was not decided by the Government and since finally the relief was refused, therefore, under the permission given by the Court previously, the present petitions were brought. Since on the statements of both the parties, the previous grievance petitions were withdrawn with permission to bring fresh ones, no objection with regard to limitation could be raised by the respondent. The rule of estoppel applies. By agreeing that fresh petitions may be brought, if needed, the respondent gave an impression to the appellants that no objection with regard to limitation would be raised upon the fresh petitions. The respondent has not brought on the record any document to show that the Government had finally refused the resolution passed by the Committee and did not allow pension and gratuity to the appellants, therefore, after waiting for a considerable time when they felt disappointed, they rightly brought D fresh petitions. The learned lower Court has not said in its judgment anything about the second grievance notices but actually the appellants had sent fresh grievance notices on 20-5- 1986, which were vide A.D. Receipt Exh.P.4, received on 22-5-1986. Fresh grievance petitions were lodged on 5-6-1986 and thus were within two and a half months of the service of grievance notices. Therefore, fresh grievance petitions were within time and competent.
8. As a result, the appeals are accepted and setting aside the impugned decisions of the learned lower Court, the grievance petitions of the appellants are accepted and the respondent is directed to pay to them gratuity at the rate of 20 days per completed year of service on basic pay as well as on permanent allowances, except those allowances which have been excluded from the definition of wages given in section 2 of the Payment of Wages Act. The appellants are entitled to gratuity on cost of living allowance allowed under the Employees Cost of Living (Relief) Act. However, dearness allowance not being a permanent allowance, cannot be considered, for the calculation of gratuity.
It is not a permanent kind of allowance because if dearness increases, dearness allowance may be increased and vice versa. If dearness comes to an end, this allowance may be discontinued. Nemo for the parties.
A. E. /269/Lb.P