DECISION This is an appeal against an award dated July 26, 1972, whereby the leamed Chairman of the Second Sind Labour Court, Karachi, dismissed the application of the appellants for re- instatement of workman Bashir Ahmed on the ground that he could be retired before having attained the age of 60 years. The facts giving rise to the appeal briefly put are these.
2. Bashir Ahmad, workman was appointed on 15th February, 1950 as a Lower Division Clerk and was subsequently promoted as an Upper Division Clerk in the respondent-Society. He was retired from service on 26th July, 1969, on having attained the age of 55 years. The case of the appellants was that at the time when Bashir Ahmad was appointed, the age of superannuation was 60 years, if an employee was physically found to be fit. At the time when Bashir Ahmad was made to retire, Industrial Dispute No. 57 of 1967 was pending disposal. The conditions of service of Bashir Ahmad, therefore, could not be changed. On the other hand, tfce case of the respondents is that the age of 55 years was fixed by the Board of Directors of the respondent-Society. The learned Court, having accepted the plea of the respondent that the Board of Directors could legally reduce the age of superannuation, held that Bashir Ahmad was rightly retired from service on having attained the age of 55 years. The resolution of the Board of Directors has not been brought on the record of this case. Mr. Masood Mirza, the learned Representative for the Society, referred to Application No. 197 of 1970, between Jamil-urrehman and the Company and stated that a copy of the Resolution of the Board of Directors was filed in that application. I sent for the said record. Legally the resolution cannot form part of the record of this case, as Jamil-urrehman's case was not connected with the present case. The admitted position, however, is that the said resolution has not been given retrospective effect. The case of the Company is that the superannuation age was reduced by the Board of Directors from 60 to 55 years. The question is can the resolution, which is prospective in its application, be said to have been given retrospective effect so as to affect the right of those employees who had been taken in service on condition that they would continue to remain provided they were physically fit I am of the view that the said resolution, relied upon by the company, applies only to those who were taken in service from the date that the resolution was passed.
3. Mr. A. Majeed, the learned Representative for the appellant, admitted that his client could continue in service only if he was found to be physically fit from time to time. In the result, Bashir Ahmad will be re-instated, if he is found to be physically fit. He will continue up to the age of 60 years only if he is found physically fit. The company can have him medically examined whenever they deem it necessary.
4. The award is set aside and Bashir Ahmad is re-instated, as ordered above. The period between the date of this order and 26th July 1969, when he was retired, would be treated to be leave without pay. There is nothing before me to establish that he was not earning during this period. 1973 PLC 358 [Labour Appellate Tribunal Sind] Present : Inamullah Khan, Appellate Tribunal HASHEM SULTAN and 7 others versus CHAIRMAN, SECOND SIND LABOUR COURT, KARACHI and another , decided on 4th December 1972. Industrial dispute-- ____ Payment of dues --Court cannot award more than that claimed by workman, [p. 359J/4 Ahmed Abdul Karim for Appellants. IVasi Ahmad for Respondents. Date of hearing : 4th December 1972. Decision These are cross-appeals against an award dated September 1, 1971, whereby the learned Second Sind Labour Court, Karachi, having come to the conclusion that the limit of lay-off expired on 4th July, 1971, and thereafter the services of the workmen were terminated on 8th October 1971, therefore, they were entitled to their wages from 5th July 1971 to 8th October 1971. Both the parties are aggrieved with this award.
2. Mr. Wasi Ahmad, the learned Representative for the workmen raised two contentions before me. He contended, in the first place, that there being no evidence on the record as to when the services of the workmen were terminated, the latter were entitled to wages at least up to the date when the award was made. In the second place, he contended that gratuity should have been allowed as claimed by the workmen. I propose 1975 Hashbm Sultan v. Chairman, Sbcond Sind Labour Court 359 (Inamullah Khan, Appellate Tribunal) to dispose of these two contentions separately. It is true that no evidence had been adduced by the Management to establish as to when they terminated the services of the workmen. The workmen, however, cannotl get more than what they themselves claimed. A claim was submitted!* before the Court on 14th October, 1971. The relevant portion of the samel reads as under :-- "As a consequence to the proceedings on the last date of hearing and as per directions of this Hon'ble Court, the following account of Claim is submitted with respect to each concerned worker (1) - (2)................................................... (3) (4) (5) (6) (7)
(8) (9) (10) Depriviations for four months .. . 350.00."
3. All the workmen claimed wages only for four mouths, which the Court had been pleased to grant. It appears to me that the workmen after 8th October, 1971, did not attend to their duties. The Court rightly granted to the workmen only four months wages.
4. So far as the question of gratuity is concerned, Mr. Wasi Ahmad contended that the Management having not adduced any evidence as to the period of service of each of the workmen, the period of service stated by the workmen should have been accepted. There is no force in this contention, in view of the following observation of the learned Chairman of the Court :-- "The learned Representative for the applicants states that, in order to avoid delay by contesting this issue, the applicants agree to accept the Gratuity as admitted by the respondents. Therefore, they arc granted this claim accordingly."
5. In view'of the above admission the learned Court rightly granted the amount of gratuity admitted by the Management.
6. On behalf of the Management Mr. Ahmad Abdul Karim, the Labour Officer, contended that the services of the workmen having been terminated within a period admissible for lay-off, the workmen were not entitled to four months wages. There is no force in this contention. There is no evidence on behalf of the Management as to when they terminated the services of the workmen. The Management has not even cared to hie a reply state- ment to the application under section 34 of the Industrial Relations Ordinance, 1969. 7.
In the result, all the appeals are dismissed. 1973 PLC 360 [Labour Appellate Tribanal SladJ Present : Inamullah Khan, Appellate Tribunal Messrs COMPAGNIE NATIONALE AIR FRANCE, KARACHI versus FELIX C. FARNANDES, KARACHI and 4 others , decided on 6th December 1972. inrinatrial Relations Ordinance (XXIlI of 1969)-- ------ S. 38(5)--Contempt of Court--Tribunal to take notice when moved by aggrieved Labour Court and not on application [from parties concerned. It was alleged that a party to proceedings pending before Labour Court published some disparaging, false and mischievous articles having the effect of prejudging the issues in dispute. The opposite-party made any application to Tribunal seeking punishment under section 38(5) of the Industrial Relations Ordinance, 1969 for alleged contempt of the Labour Court. The question was as to whether the Appellate Tribunal should take notice of the alleged contempt committed by one of parties to the proceedings concerned pending before the Labour Court, on an application from the opposite-party. Held: So far as subsection (5) of section 38 of the Industrial Relations Ordinance, 1969 is concerned, it does not give any guidance as to who should move the Labour Appellate Tribunal. One thing is almost settled that wherever the High Court punishes any one for contempt of its subordinate Courts, it is the Courts themselves who make a reference to the High Court. [p.
361M In the present case the authority which can be said to be aggrieved, is the Labour Court because of the publication of the articles by the respondents. It was for the Labour Court to make up its mind as to whether it would like the Tribunal to take action for contempt of its authority or not. Punishment for contempts of Court is extraordinary power. It should be always cautiously exercised, [p. 361]fi The State v. Haji Adam and others PLD 1965 Kar. 45 re f, Muzaffar Ali Khan for Applicants. Date of hearing : 6th December 1972. Order Mr. Muzaffar Ali Khan, the learned Advocate for the applicants appeared after I had dismissed the application for non-prosecution. I would restore the application to its original number.
2. This is an application under section 38 (5) of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance) with a prayer that this Court may punish the respondent for publishing highly disparaging, false and mischievous articles, which had the effect of prejudging the issues between the parties and thereby have committed contempt of Court. Section 38 (5) of the Ordinance reads as under :-- "The Tribunal shall have authority to punish for contempts of its authority, or that of any Labour Court subject to its appellate jurisdiction, as if it were a High Court.** 3. The first question that requires consideration is as to whether the Tribunal should take notice of the alleged contempt that may have been committed by the respondents on the application of the applicant, who is a party to the proceedings pending before the Labour Court. So far as subsection (5) of section 38 of the Ordinance is concerned, it does not give us any guidance as to who should move this Court. One thing is almost settled that wherever the High Court punishes anyone for contempt of its subordinate Courts, it is the Courts themselves who make a reference to the High Court. Mr. Muzaffar Ali Khan, the learned Advocate for the applicants, referred to the case of The State v. Haji Adam and others (1) in support of his contention that the private party could move the Court for action under the Contempt of Courts Act. The very opening sentence of the order of the High Court makes it quite clear that it was the District Judge, who had made the reference to the High Court.
The opening sentence of the judgment reads as under :-- "This is a reference made by the learned District Judge, Karachi, recommending action under the Contempt of Courts Act (Act XII of 1926), against the respondents Mrs. Rose Collaco and Mr. Nathulal, senior practising lawyer of this Court."
4. On the face of it, in my opinion in the present case the authority which can be said to be aggrieved, is the Labour Court because of the publication of the articles by the respondents. It was for the Labour Court to make up its mind as to whether it would like the Tribunal to take action for contempt of its authority or not. Punishment for Contempts of Court is extraordinary power. It should be always cautiously exercised.j I would hold that the application by the applicants under section 38 (5) of the Ordinance is not maintainable. The application is dismissed. (1) PLD 1265 Kar.
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