DECISION This revision application has been filed praying that this Tribunal may call for R&P in grievance Application No, 28 of 1989, pending in the Court of Sindh Labour Court No,I at Karachi, to examine the propriety and the legality of the order passed by the learned Presiding Officer on 25-4-1989.
2. I have heard Mr. Sher Afghan, the learned Advocate for the applicants and Mr. Gohar Iqbal, learned Counsel for the respondent and have also gone through the record and proceedings of the case.
3. The dispute between the parties appears to be as to on what date the respondent has to retire.
Admittedly, the date of birth in original Service Record maintained by the applicants is in the year of 1927, which date of birth is also mentioned in the claim of the Employees Old Age Benefits Institution. According to the medical certificate, the age of the respondent is about 60 years. But according to the Identity Card issued by the applicants to the respondent on 18-10-1981, his age is' shown to be 48 years. The applicants, vide letter, dated 27-10-1988, had informed the respondent that he would be retired on 31-12-1988. By another letter, dated 7-1-1989, he was informed that he had been granted 3 months extension and would he retired thereafter. Being aggrieved by these letters, after service of the grievance notice, he filed his grievance petition before the learned Labour Court praying that the said letters be held illegal and that he may be allowed to remain in the employment till the age of 60 years. The respondent had also moved an application under Order 39 Rules 1 and 2, C.P.C. praying that the applicants be restrained from retiring him before the decision of the grievance petition. The learned Labour Court came to the conclusion, that the documents produced by the applicants contained conflicting entries with regard to the age of the respondent and, therefore, it granted interim injunction as prayed vide, impugned order.
4. The first objection of Mr. Sher Afgan, the learned Advocate for the applicants is that the grievance petition was premature as the cause of action would accrue to the respondent only after his retirement and not before the retirement. Word 'grievance' is not defined under the Industrial Relations Ordinance, 1969. Its definition under the Chambers 20th Century Dictionary, New Edition, is "cause or source of grief; ground of complaint; condition felt to be oppressive or wrongful; distress; burden; hardship injury." It cannot be doubted that the letter under which he was informed that he would be retired on a particular date did give ground of complaint to the respondent, if he had not attained the age of 60 years by that date. In my opinion, therefore, the respondent could bring such grievance to the Labour Court even before the retirement. The case-law relied upon by Mr. Sher Afgan pertains to the cases in which retirement had already taken place and the issues now raised was not considered in those cases. It will be unfair to ask the worker to wait for the injury to he caused to him before seeking relief. This view finds support from the definition of Industrial Dispute as defined under section 2(xiii) of I.R.O., 1969, which is reproduced as under:- "'Industrial dispute' means any dispute or difference between employers and employers or between employers and workmen or between workman and workman, which is concerned with the employment or non-employment or the terms of employment or the conditions of work of any person and is not in respect of the enforcement of any right guaranteed or secured to him by or under any law, other than this Ordinance, or any award or settlement for the time being in force."
The issuance of the impugned letter, it cannot be disputed that the dispute did arise between the workman and the employer with regard to his age and the date on which he has to he retired.
Retirement being one of the terms of the employment.
5. The question as to whether the respondent has reached the age of 60 years is a question of fact and it requires the evidence to be recorded. Under Standing Order 2(A) every workman at the time of his appointment shall be provided with an order in writing showing terms and conditions of employment. The perusal of this order would be necessary to see when the respondent has to retire. In the recent case of Messrs A.E.G. Telefunken Pakistan (Pvt.) Ltd. v. Sindh Labour Appellate Tribunal and 2 others, reported in 1989 PLC 525; a learned Division Bench of Sindh High Court has held that "where no age limit of retirement was fixed at the time of worker's appointment, but, subsequent to worker's appointment, age limit for retirement was fixed at sixty. Employer's resolutions fixing age of retirement was passed after worker was appointed and would, therefore, be not binding upon the workman."
6. In an earlier case decided by a learned Single Judge of Sindh High Court, reported in PLD 1977 Kar. 168, it was held that "unlimited service was not guaranteed by any law, award or agreement and a commercial or industrial concern was under no legal obligation to retain an employee beyond age of 55 years." This view have now been overruled by the latest Division Bench ruling of the Sindh High Court and further more even on the admission of the respondent, the age of retirement is 60 years.
7. The second objection raised by the learned counsel for the applicants is that while granting injunction, the learned trial Court has not taken into consideration the balance of convenience and irreparable loss and that even if the respondent is held to be illegally retired, he can be ordered to be paid back benefits. It should not be forgotten that we are dealing with the cases of workman and the capacity of his endurance is very limited. If he is retired prematurely, he will be deprived of certain benefits both fringe as well as pecuniary and the payment of such benefits retrospectively after completion of the proceedings before the Labour Court and the Tribunal in case if he succeeds, would not adequately compensate him for the loss he suffered during this period. The balance of inconvenience, in my opinion, is in favour of the respondent. Though technically the loss may not be irreparable but, comparatively being deprived of the benefits for long time, it would be irreparable. Considering all the facts and Law, discussed above, I find no illegality in the impugned order and would, therefore, dismiss this application. And would direct to learned Labour Court to dispose of the case as early as possible.