' One Abdul Karim was appointed as Supervisor Foreman in the petitioner-Company, S. Muhammad Din and Sons (Rahim) Limited. His services were terminated with effect from 1st of January, 1982. A notice under section 25-A of the Industrial Relations Ordinance, 1%9 demanding payment of gratuity was served on the petitioner-Company and as the amount of gratuity was not paid, Abdul Karim filed a petition before the Punjab Labour Court No. 2, Lahore under section 25- A(4) of the Industrial Relations Ordinance, 1969 for recovery of the amount of gratuity. During the pendency of the petition Abdul Karim died and the learned Presiding Officer impleaded the legal heirs in place of the deceased petitioner.
2. The petitioner-Company contested the grievance petition with the assertions that Abdul Karim deceased was not a "workman" or "worker" within the meaning of the definitions of the term contained either in the Industrial Relations Ordinance, 1969 or the Industrial and Commercial Employment (Standing Orders) Ordinance 1968, and that in any case the legal heirs, the substituted petitioners being not "workman" could not be allowed to prosecute the petition by the Labour Court.
' The Presiding Officer of the Labour Court No. 2 after holding the necessary inquiry and recording the evidence held that Abdul karim deceased was a "workman"; he was entitled to the gratuity under Standing Order 12(6) and that the legal heirs were entitled to be substituted in the petition brought by a worker as the right to receive the dues is heritable. The direction to pay the amount of gratuity was thus passed vide judgment dated 10-6-1984 by the Labour Court. The petitioner- Company challenged the judgment of the Labour Court by filing appeal before the Labour Appellate Tribunal. The appeal was then dismissed vide judgment dated 13-3-1985. This led to the filing of the present Constitution petition.
3. Learned counsel for the petitioner-Company in support of the petition contended that:
(a) Abdul Karim deceased was Supervisor drawing Rs,1,235 as monthly wages and was not a "worker" under I.R.O. 1969 and the finding to the contrary recorded by the Labour Court and the Appellate Tribunal is arbitrary and illegal.
(b) That the Labour Court has no jurisdiction to entertain and adjudicate upon the claim for payment of gratuity under section 25-A of the I.R.O. 1969 and such a claim could only be made before the Authority appointed under the Payment of Wages Act, 1936. It was added that appeal against the order of the "Authority" lies to Labour Court which as such has no original jurisdiction in the matter.
(c) That in Any case on the death of Abdul Karim, his heirs could not be substituted as relief available under section 25-A is personal to the "worker" or "workman" and the heirs cannot be treated "worker" under the I.R.O. 1969 and granted relief thereunder. According to the learned counsel, the heirs could not be allowed to prosecute the petition.
4. The question whether Abdul Karim was a "worker" was gone into by the Labour Court on the basis of the evidence produced during the enquiry held by it. This finding was upheld in appeal by the Appellate Tribunal. Thus, the concurrent finding that Abdul Karim was a "worker" is primarily a finding of fact and the same cannot be interfered with in extraordinary Constitutional jurisdiction as neither any misreading nor any non-reading of any material piece of evidence was pointed out.
Both the Presiding Officers were right in observing that in the circumstances of the case the onus was on the petitioner-company to prove that wages including the allowances that formed part of the wages exceeded Rs,800 per month. The view that not the designation but the duties performed by a person are relevant for the decision of the question of "workman" is also well-based. The concurrent finding thus merits no interference.
5. The question of mode of enforcement of claim of gratuity came up for consideration in the case of General Steel Tools Company, Gujranwala v. Presiding Officer, Punjab Labour Court No. 2, Lahore and two others PLD 1976 Lah.
528. Nasim Hasan Shah, J. (now Judge of the Supreme Court) in this judgment traced the legal history of the right to gratuity and the mode of enforcement through Labour Court in the context of the provisions contained in the Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968, the I.R.O. 1969 and the Payment of Wages Act, 1936. Learned Judge observed, "the right to obtain gratuity was conferred by the Standing Orders Ordinance, its enforcement was initially provided for in the said Ordinance by Standing Order 18, but after its omission, on 13-4-1972, the enforcement of the said right was only possible under the provisions of section 25-A of the Industrial Relations Ordinance, which were inserted in the said Ordinance on the same day by the same Ordinance (IX of 1972). Thereafter, the Payment of Wages Act was amended on 26-10-1972 by the Payment of Wages (Amendment) Ordinance, 1972 and workmen could move the Authority created under the said Act not only for the enforcement of their claims to wages, but also for the enforcement of their claims towards the payment of provident fund or gratuity, to which they might be entitled under any law. As from 25-10-1972 the workman was provided with two remedies in the matter of recovery of provident fund, namely, either to approach the Authority user the Payment of Wages Act or to move the Labour Court under the Industrial Relations Ordinance. It may, however, be noted, that some difficulty could arise in obtaining relief from the Authority under the Payment of Wages Act, because even though under subsection (1) of section 15 matters relating to non- payment of wages and provident fund payable under any law could be taken cognizance of by the Authority appointed under the said Act, the corresponding amendment was not made in the succeeding provisions of section 15". Section 15 of the Payment of Wages Act, 1936 as it stood in 1976 was quoted and the conclusion reached was recorded as under:- "It may further be noted that in the definition clause of the Payment of Wages Act the term "wages" has been defined (in sub-clause (vi) of section 2) but it has been made clear therein that gratuity payable on discharge is not included in the expression "wages". The perusal of subsection (2) and subsection (3) of section 15 of the Payment of Wages Act shows that it provides for the procedure for recovery of "wages" only and not for recovery of gratuity, because section 15 has not been properly amended to deal with the question of payment of gratuity and the procedure in this respect has not been specifically laid down. There is no mention of the direction that the Commissioner can issue in this respect. The mere conferment of power under subsection (1) of section 15 to deal 'with the question of non-payment of gratuity may not thus enable a workman to approach the Commissioner with fruitful results in the absence of the necessary amendments being made in subsections (2) and (3) of section 15. It is true that where a Legislature introduces a substantive provision in a statute but omits to make the consequential amendment in the procedural law, the Court is competent to give effect to the true and patent intention of the law- maker by supplying the omission, if the intention of the Legislature is clear. (See Shakeel Ahmad v.
State PLD 1972 Lah. 374), but it is possible that the Authority, under Payment of Wages Act, might feel hesitant in proceeding in connection with the payment of gratuity without the exact terms of the law being before it as to what direction can be made with regard to its payment."
6. After this judgment section 15 of the Payment of Wages Act was further amended by Labour Laws (Amendment) Ordinance, 1977 (IX of 1977). Section 15 subsections (1), (2) and (3) as amended read as under:-
(1) The Provincial Government may, by notification in the official Gazette appoint any Commissioner for Workmen's Compensation or other officer with experience as a Judge of a Civil Court or as stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of deductions from the wages, (or non-payment of dues relating to provident fund or gratuity payable under any law) or delay in the payment of wages, of persons employed or paid in that area.
(2) Where contrary to the provisions of this Act any deduction has been made from the wages of an employed person, or any payment of wages or of any dues relating to provident fund or gratuity payable under any law has been delayed, such person himself, or any legal practitioner, or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector under this Act, (or any of heirs of an employed person who has died) or any other person acting with the permission of the authority appointed under subsection (1), may apply to such authority for direction under subsection (3): ' Provided that every such application shall be presented within three years from the date on which the deduction from the wages was made or from the date on which the payment of the wages was due to be made, as the case may be: ' Provided further that any application may be admitted after the said period of three years when the applicant satisfies the authority that he had sufficient cause for not making the application within such period.
(3)When any application under subsection (2) is entertained, the authority shall hear the applicant and employer or other person responsible for the payment of wages under section 3, or give them an opportunity of being heard, and, after such further inquiry if any, as may be necessary, may, without prejudice to any other penalty to which such employer or other person is liable under this Act, direct the refund to the employed person or, if the applicant is one of the heirs of an employed person the payment to such applicant of the amount deducted or the payment of the delayed wages, together with the payment of such compensation as the authority may think fit, not exceeding ten times the amount deducted in the former case and not exceeding ten rupees in the latter: ' Provided that no direction for the payment of compensation shall be made in the case of delayed wages if the authority is satisfied that the delay was due to:--
(a) bona fide error or bona fide dispute as to the amount payable to the employed person, or
(b) the occurrence of an emergency, or the existence of exceptional circumstances, such that the person responsible for the payment of the wages was unable, though exercising reasonable diligence, to make prompt payment, or
(c) the failure of the employed person to apply for or accept payment."
(The words added in subsections (2) and (3) by Ordinance IX 01 1977 have been underlined by me to pinpoint the changes effected.) . The improvement made in the law by these amendments may be noticed. The net effect of the amendments made in subsection (2) is that (i) the claim with regard to any dues relating to provident fund or gratuity payable under any law stood included within the claims that can be entertained and adjudicated upon by the Authority and (ii) addition of the legal heirs of the deceased employee was made in the category of persons who may approach the authority, while the effect of amendment introduced in subsection (3) is that direction in respect of payments contemplated in the subsection to the heirs of the deceased employed person may be made. It is pertinent to note that amendment corresponding to the amendment made in subsections (1) and
(2) has not been made in subsection (3) providing the precise terms in which direction with regard to provident fund or gratuity is to be made.
' In this view of the matter the question is whether the amendments introduced meet the requirement pointed out by the learned Judge in the case of General Steel Tools Company (supra).
The most pertinent observations with respect to this question are as follows:- "There is no mention of the direction that the Commissioner (i,e, Authority) can issue in this respect as the mere conferment of power under subsection (1) of section 15 to deal with the question of nonpayment of gratuity may not enable the workman to approach the Commissioner with the fruitful result in the absence of the necessary amendments being made in subsections (2) and (3) of section 15."
' It is pertinent to note that as pointed out by the learned Judge in the above cited precedent, Labour Court did not consider itself competent to give the direction for payment of gratuity in view of the omission to provide in the law the exact terms in which direction for payment of gratuity is to be made. It will be appropriate to further amend subsection (3) of section 15, Payment of Wages Act, 1936, by laying down the exact terms in which the direction for payment of provident fund or gratuity is to be made by the Authority. Late Abdul Karim was thus justified in approaching the Labour Court for recovery of the dues relating to gratuity. The second contention for the reasons given above is therefore repelled."
7. The third contention is equally without merit. The question that the heirs are not "worker" and as such cannot continue the proceedings and claim relief under section 25-A of the Industrial Relations Ordinance or that relief available under section 25-A ibid, is personal to the worker and as such Labour Court cannot substitute the legal heirs for the deceased worker are not relevant.
The scheme and the scope of section 25-A is to make provision for the redress of grievance of the worker. A perusal of the section shows that it is the grievance which is to be brought to the notice of the Labour Court for appropriate orders and relief. The individual worker who feels aggrieved may bring its grievance before the Labour Court either himself or through his Shop Steward or Collective Bargaining Agent. Subsection (4), inter alia, provides that where the matter is taken to the Labour Court, it shall give a decision within seven days from the date of the matter being brought before it as if such matter were an industrial dispute. Subsection (5) then provides that in adjudicating and determining a grievance under subsection (4) the Labour Court shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case.
' Moreover, from the provisions of section 25-A, it clearly emerges, that it is the grievance made which is to be determined and adjudicated by going into all the facts of the case; that the person who has brought the grievance to the notice of the Labour Court is relevant to the extent that he or it is one of the persons/parties specified in subsection (1); and that the worker or Collective Bargaining Agent or Shop Steward is not a party to the proceedings in the context in which a party to a 'Lis' is understood in proceedings under Civil Procedure Code; and that whosoever out of the specified persons or parties may have lodged the grievance petition, the same is to be entertained, adjudicated and determined by passing such order as may be just and proper in the circumstances of each case. So the power of the Labour Court to do justice and afford relief as the circumstances of each case may require is not made dependent on the presence of the worker himself as a party in the proceedings. The power is conferred to extend relief once the proceedings are instituted by one of the specified persons. It will be seen that the question of substitution of legal heirs in place of petitioner due to his death would not arise in case where the petition was lodged by a Shop Steward or a Collective Bargaining Agent. Can the Labour Court refuse to grant relief in a grievance petition where the right claimed continues to subsist despite the death of the aggrieved worker? This question to my mind must be answered in the negative. It is only where the right claimed was personal to the worker and comes to an end with his demise that the proceedings terminate. The righ claimed i,e, payment of gratuity did not terminate with the demise of the work r and as such for the purpose of effective adjudication and for making appropriate to direction, the legal heirs of the deceased worker were rightly made to join he proceedings.
8. There is yet another answer to the objection raised. Even if the grievance proceedings are to be treated as a 'Lis' inter partes, the parties can be substituted, added, struck off or interposed as subsection (4) of section 25-A of Industrial Relations Ordinance provides that matter before the Labour Court is to be decided as if the matter was industrial dispute and as per section 36(2) of Industrial Relations Ordinance, a Labour Court shall, for the purpose of adjudicating and determining any industrial dispute, be deemed to be a civil Court and shall have same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908) including the powers specified in clauses (a), (b) and (c) of the said subsection. The bringing on record of the legal heirs in place of the deceased worker who had admittedly lodged the grievance petition cannot be objected to.
' For the reasons given above I find no merit in the petition and the same is dismissed with costs.