AWARD By present application dated 11th October 1972, under section 34 of the Industrial Relations Ordinance, 1969, applicant is seeking direction against the respondent to pay him gratuity. The admitted facts are that applicant was the permanent workman with the respondent from lst April 1955 up to 5th November 1968, as mechanic. On 5th November 1968 after completing a service period for thirteen years and seven months, applicant resigned from the service ^Applicant was paid his legal dues up to 5th December 1968, apart from Rs. 200 from Welfare Account Fund.
Having come to know that gratuity can be paid also to those Workmen who have resigned from their service, applicant started making applications to authorities. Applicant was directed to approach Labour Directorate for his redress. Labour Directorate asked the respondent to ,pay gratuity to the applicant. But respondent instead of paying any gratuity to the applicant, made ex gratia payment of Rs. 200 to the applicant on 17th May 1972 under a cheque. Applicant being dissatisfied with this further payment of Rs. 200 only made another application to the Assistant Commissioner and S.D.M., Karachi Cantt. who after consulting the labour Directorate, vide his letter dated 7th September 1972, asked the Managment of the respondent to pay gratuity to the applicant. Still no gratuity was paid to the applicant, therefore he filed present application. Case of the applicant is that after his resignation he had approached the respondent number of times for the payment of gratuity, but same was not paid to him Even though he had resigned from service, legally he was entitled to receive gratuity. That his daily wages were Rs. 5.95 per day. As gratuity was payable in the shape of fifteen days' wages for every completed year of his service and as he had put in service of more than thirteen years his dues came to about Rs 1190. Vide his reply statement respondent had pleaded that the Court was not validly constituted w:thin the meaning of section 35 (2) of Industrial Relations Ordinance, 1969, when the present application was filed.
That application under section 34 of Industrial Relations Ordinance, 1969, was not maintainable in law inasmuch as amendment of 1970 was prospective and not retrospective in operation. That application was time-barred and had been filed without giving grievance notice to respondent.
That at the time applicant resigned from the service there was no provision in law for the payment of gratuity on resignation. That as regards the payment of gratuity under the Labour Laws (Amendment) Ordinance, 1972 upon resignation, the same is effective only from May 1972. Hence it had only prospective effect and not retrospective effect That appeal against the decision referred to by the applicant (authority reported under PLD 1972 Kar. 397 was pending before the Supreme Court of Pakistan and the Stay Order had been granted. That applicant had never approached the respondent within last 4 years for the payment of gratuity. In support of the application, applicant has examined himself vide Exh.
5. Applicant has also produced number of documents for the perusal of this Court vide Exhs. 10 to 13 respectively. On the other hand respondent has examined their Labour Officer Abdul Majeed vide Exh. 7 and has also produced wages slip showing the ex gratia payment of Rs. 200 to the applicant vide Exh.
8. No doubt when present application was filed and when respondent gave his reply statement, no members under the former provisions of section 35 (2), Industrial Relations Ordinance, 1969 had been appointed. The constitution of the Court was completed with the appointment of two members vide Notification No. LAB (1) L-C 2/72, dated 31st October 1972. Anyhow evidence of the applicant was completed on 16th November 1972 and respondent led his evidence on 23rd November 1972.^ Before evidence of applicant was completed respondent withdrew his objections against the jurisdiction of this Court. Applicant had not raised any objection regarding the jurisdiction of this Court. Thus jurisdiction of this Court was acquiesced to by the parties. Even otherwise no prejudice has been caused to any of the party nor on account of this position there was any miscarriage of justice. Hence there remains no force in the objection that Court had initially no jurisdiction. Since gratuity claim of the applicant is of the year 1968, it is first to be seen whether in the light of the provisions of law as they stood at that time, the applicant was entitled to gratuity even though he had resigned from the service. In 1968 sub- Order 5 to Order l2 of West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 had not been added, so as to bring the workmen within the benefit of gratuity, who has resigned from the service, Applicant has claimed that according to decision taken by their Lordships reported under PLD 1972 Kar. 397 it was held that even under the former provisions of Order l2 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the gratuity was payable on voluntary resignation of an employee. Though applicant did not produce such authority before this Court but I have gone through copy of the judgment-sheet dated 27th October 1972 of the High Court of Sind & Baluchistan, Karachi in , produced by the representative of the respondent for the convenience of this Court. It revealed that their Lordships had observed that an employee though has voluntarily resigned from the service, still was entitled to claim benefit of gratuity under the former provisions of Order l2 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Representative of the respondent has pleaded that appeal against the judgment of High Court of Sind & Baluchistan, Karachi referred to is pending before the Supreme Court of Pakistan and that Supreme Court of Pakistan has stayed the operation of that judgment. Representative of the respondent has also pleaded that appellate Tribunal in Messrs Qadari Silk Mills Ltd., Karachi v. Qadari Silk Mills Workmen Union 3- A- 1-B, Pak Colony, Manghopir Road, Karachi has already observed that under the former provisions of Order l2 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, a workman who has resigned from service is not entitled to gratuity. Since this decision of the appellate Tribunal has not been upset so far, it was binding. But I think that decision taken by their Lordships in would prevail till it is reversed by their Lordships of the Supreme Court of Pakistan. I therefore hold that applicant was entitled to gratuity. The second point for the consideration is whether the present provisions of Order l2 West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 under which gratuity can be paid to a workman also who has resigned from the service, would have retrospective effect or would have only prospective effect.
The simple interpretation of these provisions goes to show that these provisions would have only prospective effect and thus under the present provisions of Order l2, West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 applicant can not claim gratuity which became due to him in the year 1968. The other question to be decided is whether present application under section 34 of Industrial Relations Ordinance, 1969 is maintainable in law. Section 34, Industrial Relations Ordinance, 1969 was amended in the year 1970 whereby a workman was also allowed to apply to the Labour Court for the enforcement of his any right guaranteed and secured to him by or under any law. Evidently operation of this amendment was to be of prospective nature and not retrospective in nature. Present petition has been filed before this Court on 11th October 1972, i.e. before the promulgation of Industrial Relations (Amendment) Ordinance, 1972. From 13th April 1972, provisions of Standing Order 18 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 were omitted and provisions analogous to this were incorporated with the additions of section 25-A, Industrial Relations Ordinance, 1969 and substitution of Standing Order No. l2 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. It has already been observed by the Appellate, Tribunal in Fishermen's Co-operative Society & Company Employees' Union v.
Fishermen's Co-operative Society & Company Ltd. , that wherever an individual workman has grievance in respect of any matter under Standing Orders Ordinance, he must follow the remedy prescribed under Standing Order No. 18 and not under section 34 of Industrial Relations Ordinance, 1969. Thus it is clear that applicant had to file an application under section 25-A of the Ordinance, rather than under section 34 of Industrial Relations Ordinance, 1969. The requirement of section 25- A is that the workman should give notice in writing to his employer within three months from the date when the cause of such grievance arose and was to file application before the Labour Court within two months from the expiry of the period mentioned in subsections (2) and (3) of section 25-A of the Ordinance. Though applicant has claimed that he has been approaching the respondent for the payment of gratuity, but this fact has been denied by the other side. Anyhow applicant has failed to show or produce the notice which he may have given to the respondent in writing as required by section 25-A, subsection (1) of the Ordinance. Thus it is clear that applicant did not give any notice to the respondent hefore coming to this Court. It may be argued that the correspondence which the applicant was carrying on with the respondent through the Labour Directorate and Assistant Commissioner and S.D.M., Cantt-Karachi, amounts to notice as contemplated by section 25-A subsection (1) of the Ordinance. All this correspondence relates to year 1972. Even if this correspondence be treated as a notice, the same was to be given within three months of the cause of the grievance, which had arisen in the year 1968. But applicant came to this Court after a lapse of four years. Hence application was hopelessly time-barred. Applicant is a poor man. I feel that he was entitled to gratuity which he is unable to get due to the technical position of the law. Under these circumstances it would be unfair to deprive the applicant of his claim on all counts. The total claim of the applicant comes to Rs. 1,200 out of which he has already received Rs. 400. Therefore I find that Rs. 500 would be a fair and proper amount if he gets the same. Mr. Mahmood Abdul Ghani has agreed on behalf of the respondent to pay this amount to the applicant. In the light of the above discussion I find that application merits no legal consideration. I therefore dismiss the same with no orders as to costs.