1. AWARD Khuda Bakhsh A. Kazi (Chairman).--On 9th April 1971 the above- named applicant filed an application under section 34 of I. R. O., 1969 against the above-named respondent in this Court. In the application it is said that Mst. Maryam had worked with the respondent-Company for 30 years from 1940 to 1970. Due to her old age and bad eyesight she could not perform her duties in the end of 1970. She, therefore, requested the respondents that she may be paid all the legal dues due to her for 31 years of service. In spite of her repeated requests she was not paid the dues. She claims the gratuity and notice pay etc. under Order 12(5) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. In the end she prayed that she be paid gratuity of Rs. 2,170.00 and notice pay of Rs. 140.00. Thus her total claim is for Rs. 2,310.00 from the respondent- Management. In their reply statement, the respondents submitted that the present application under section 34 of I. R. O., 1969, was not maintainable. Since her claim is for payment of gratuity and notice pay under the West Pakistan Industrial and Commercial Employment (Standing Orders)
2. Ordinance, 1968, Order 18 of the said Ordinance contemplated "grievance procedure" by virtue of which an individual workman may seek redress for any matter under it. The applicant being aggrieved should have made application under Standing Order 18(6) of the said Ordinance as provided. Coming on the factual side it is submitted on behalf of the respondents that the dues claimed by the applicant are unfounded, baseless and without any provision of law. They also contend that the Standing Orders, Ordinance, 1968 is not applicable to the respondent-industry because of the fact that the number of the persons employed by the respondents inclusive of managerial and office staff is only l2. The rest of the labourers are casually engaged by the contractors as and when required. This too was limited to 10 to 15 persons per day. The respondents further contend that prior to 1958 the industry was evacuee property and was completely closed for a long time up to 1958. Even after taking over the possession by the respondents, the industry remained closed up to the year 1962. They deny all other allegations and submitted that the Standing Orders Ordinance, 1968 did not provide any benefit to the workmen on their retirement.
3. Finally they contend that Order 12(5) of the Standing Orders Ordinance, 1968 or any other labour law for the time being in force did not provide notice pay or gratuity to the workmen on their retirement. They, therefore, prayed that the application be dismissed. The parties have led evidence on their respective versions. Applicant Mst. Maryam has filed her affidavit re-affirming all the averments as made by her in her main application. She claims notice pay and gratuity for the period from 1940 to 1970. Mr. Mujeebur Rehman Alvi, Manager of the respondent-Factory filed his affidavit supporting the case of the respondents. According to this affidavit the main application under section 34 of I. R. O., 1969 was not maintainable as the applicant failed to adopt the proper procedure as contemplated in Order 18 of the Standing Orders Ordinance, 1968. It is also said that Order l2 (5) of the said Ordinance or any other provision of labour law did not provide service benefits to the workmen on their voluntary retirement as such the claim of the applicant was unfounded. He has also filed a further affidavit in which he submitted that it was not+obligatory on the part of the respondents to preserve the employment record for more than 3 years. That the name of the applicant in the year 1966 did not appear for a single day as could be evident from the complete pay vouchers alongwith cash book submitted before the Court for scrutiny and examination. Both the applicant Mst. Maryam and Mr. Mujeebur Rehman Alvi have been cross- examined by the respective Representatives of the opposite-party. There is also an affidavit of Mr. Hussain in support of the case of the respondents but in cross-examination he admits that he was not taken to the Oath Commissioner at all and hence his affidavit could not be taken into consideration as an affidavit legally sworn in. Both the parties have filed their written arguments. I have gone through the evidence adduced by the parties and the arguments advanced by their respective Representatives. The case of the applicant is that she worked as a labourer with the respondents from 1940 to 1970 and that due to her old age and weak eyesight she was not able to perform her duties and hence she requested the respondents to pay her all dues for 31 years of service. She also claimed one month's notice pay of Rs.140 and 15 days* gratuity of Rs. 70 per year amounting to Rs. 2,170 for 31 years. Thus her total claim is for Rs. 2,310. Her case is that in spite of her several requests the respondents did not pay her the dues and hence she filed the present case.
4. The case of the respondents is that the application itself was not maintainable because only l2 permanent persons were employed by the Factory and hence the Standing Orders Ordinance, 1968 was not applicable to it Finally it is said that the application is barred by time and is liable to be dismissed. According to the respondents the applicant stopped work from the month of February 1970 and the present application has been filed on 9th April 1971, i.e. after about fouiteen months whereas only 30 days were allowed under the law. Their case is that the applicant was not a workman as defined in I. R. O., 1969. I have considered all aspects of the case. The respondents have not satisfactorily shown as to how the applicant was not a workman as defined under section 2(xxviii) of the I. R. O., 1969. The applicant affirms that she was a workman and there is nothing on record to prove the contrary. The second objection that the respondents bad employed only permanent workmen and about 10 to 15 casual workers has also not been substantiated and hence I am not inclined to accept their objection that the Standing Orders Ordinance, 1968 is not applicable to the respondent-Factory. The third objection is that Order 12(5) of the Standing Orders Ordinance, 1968, did not speak about granting of gratuity etc. to a workman who retires from service. I reproduce Order 12(5) below:-- "Where the services of a permanent workman are terminated for reasons other than misconduct, he shall, in addition to the wages payable to him under clause (1), be paid gratuity equivalent to fifteen days' wages for eveiy completed year of service or any part thereof in excess of six months; provided that no such gratuity shall be payable in case where the employer has established a Provident Fund to which such workman is a contributor and the contribution of the employer to such Fund is not less than the contribution made by the workman.'* On reading of the above said Order it is clear that these benefits are available to the permanent workman when his or her services are terminated for reasons other than misconduct. Nowhere it is said in this Order that! these benefits are available to the workmen who have retired. In the instantU case admittedly the applicant has retired from service and hence Order 12(5)1 is not applicable to the case of the applicant. Finally it is said that the application is not maintainable on two grounds. Firstly, that the proper procedure has not been followed and secondly, it is barred by time. Under Order 18 the grievance procedure has been prescribed. Any one who intends to seek redress shall have to observe the said procedure. Under Order 18(a) the workman concerned would bring his grievance to the notice of the employer, in writing within 15 days of the occurrence of the cause of such grievance, and the employer shall, within thirty days of such grievance being brought to his notice, inquire into the matter, giving the workman concerned an opportunity of being heard, and communicate his decision, in writing to the said workman.
5. Under Order 18(2), if the employer fails to give a decision within the period specified in clause (a) above, or if the workman is dissatisfied with such decision, the workman may make a complaint to the Industrial Court having jurisdiction, within thirty days from the date of the decision, or where the employer fails to give a decision, within sixty days of the workman bringing the grievance to the notice of the employer. In the instant th April, 1972 and a new section 25-A has been inserted in I. R.
6. O., 1969. At the time of filing of this case Order 18 was very much in existence even section 25-A of amendment I. R. O. gives almost similar procedure as given in Order 18. The applicant in the present case as pointed out earlier has neither given any grievance notice nor had complied with the provisions of the said Standing Order. She had retired sometime in February 1970 while she has filed this case on 9th April, 1971, nearly after about 14 months. There is no plausible explanation given for this inordinate delay. Order 18(6) of the Standing Orders Ordinance, 1968 prescribed the period of 30 days in case the workman is dissatisfied with the decision of the employer or within 60 days if the employer failed to give a decision. In the instant case I find that the provisions of Order 18 of the Standing Orders Ordinance, 1968 have not been complied with and that the application is also barred by time. Consequently I have no other option but to dismiss this application under section 34 of I. R. O. 1969 on these two grounds. Hence I order accordingly. Let the award be drawn in the above-said terms.