' This petition under Article 199 of the Constitution arises out of the following facts: ' Respondent No, 2 Peter Fernandez was employed with Eastern Express Co. Ltd., the petitioners when on 9th April, 1975, he was served with a notice that he will stand retired with effect from 7th August, 1975. The claim of the petitioners is that such letter was issued because the respondent had attained the age of 55, which is the age of superannuation with the petitioner firm. The contesting respondent thereupon wrote back to the petitioners, requesting them to withdraw the said letter and to enhance the period of retirement. The grounds were that the order of retirement was illegal as the firm had no service rules ; that the act was mala fide and that there were precedents of the employees being retained beyond the age of superannuation. The petitioners' firm, in their letter of 30th May, 1975, declined to reverse their decision of retirement and so the respondent employee moved the Junior labor Court under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the Ordinance), challenging the decision of his retirement. The two contentions raised before the Junior Labor Court were, firstly that on earlier dismissal of the respondent having been held illegal by the Labor Courts the petitioner firm did not take him back on to bus job, and instead sent him on special leave, and in view of such conduct on the part of the petitioners their order of retirement was mala fide. Secondly that the resolution of the petitioner firm dated 14th October, 1970, fixing 55 years as the age of superannuation was not applicable to him. The learned Presiding Officer of the Junior Labor Court while taking a serious view of the conduct of the petitioner firm in not taking the respondent back to his job held that such period would be treated as spent on duty, as he had received full salary during that period. As to the second contention it was held that the respondent bad failed to show as to what was the retiring age at the time he was taken into service. The result was that the application was dismissed. Fernandez took the matter before the Labor Court in appeal and the learned Presiding Officer of the Labour Court came to the conclusion that there was no past practice of the firm to retire its employees at the age of 55 and that the resolution of the firm to fix the age of superannuation at that age had no retrospective effect. Following the decision of the Indian Supreme Court reported in 1964 L C 684 the labor Court held that the resolution would not apply to employees already working in the firm. The result was that the retirement of the respondent was held to be illegal and therefore set aside.
' In the petition before me, the contentions raised arc--
(1) that the Tribunal below has erred in holding that the policy of retirement at the age of 55 years did not apply, because it did not take into account the evidence brought on record to show a consistent and long practice of retiring the employees of the firm at that age ; and
(2) that the application under section 25-A was not maintainable as no right guaranteed or secured by any law, award or agreement bad been infringed.
' But before I deal with the contentions raised by the petitioner firm it is necessary to examine an important objection taken by Mr. M. L. Shabani, who, though not on the roll of Advocates of this Court, was specially permitted to represent respondent No, 2 by orders dated 29th March, 1976. The objection is in relation to the first contention raised by the learned counsel for the petitioner. Mr. Shahani's contention is that this Court, while sitting in writ jurisdiction has not to act as a Court of appeal. He relies upon Muhammad Hussain Mimi v. Sikandar (1) which lays down the dictum that the phrase 'without lawful authority and of no legal effect', as used in Article 98 of the 1962 Constitution is an expression of art and refers to jurisdictional defects, as distinguished from a mere erroneous decision whether of fact or even of law. It is further held that it is well settled that where a Court or Tribunal has the jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law. This dictum of their Lordships of the Supreme Court, with greatest respect, is to be followed. But the question raised in the present petition is not of disturbing a finding of fact merely on the ground of different appreciation of evidence on record. On the contrary the contention raised before me is that the Tribunal below has failed to take into consideration the evidence on record when it came to the conclusion that there was no practice or usage in the petitioner firm of retiring employees attaining the age of 55 years. In cases where the facts brought on record have been ignored, or where there is misreading of evidence, or it is a case of no evidence, or even where inadmissible evidence has been made the (1)PLD1974SC139 ' basis of findings of facts, the interference in writ jurisdiction is within the competence of the High Court. Reliance in this regard can be placed on Commissioner v. Sher Mohammad (1) and Chief Land Commissioner v. Nazar Hussain (2). The question would, therefore, be if the finding of fact arrived at by the Tribunal below suffers from any of such defects.
' The petitioners firm is an associate company of Forbes, Forbes Campbell & Co. Ltd. The Board of Directors of the later company, on 14th October 1970, passed the following resolution :- Retirement Age Policy : ' The Board gave careful consideration and discussed in detail the need for the Company and its Subsidiaries to have a retirement age as a matter of policy and principle.
' Resolution ' Resolved that with immediate effect the company takes active steps to implement the following retirement policy :
(a) AU permanent employees of Forbes, Forbes Campbell & Co. Ltd , and its Associate Companies would be retired on their 55th birthday.
(b) The Board decided that should it consider necessary in the interest of the Company to retain the services of any of its Managerial Staff, the case would be considered strictly on merit and necessity, in which case the company would enter into a contract on a yearly basis, to be decided each year, three months before the expiry of the contract.
' Dealing with the resolution the learned Presiding Officer came to the following conclusions : "The passing of this resolution in October 1970, clearly indicates that prior to that, there was no age limit fixed for retirement, and there was also no evidence produced by the respondent on record that they used to retire the employees on reaching 55 years, prior to the passing of the resolution."
' The learned counsel for the petitioner vehemently challenges these conclusions. He contends that there was enough evidence brought on record, both through cross examinations of the contesting respondent and by the petitioners themselves to prove the practice as alleged, which evidence has not been taken into consideration. It is presumptuous to hold, merely on the basis of passage of the resolution, that there was no past practice of retiring the employees at the age of 55.
' In his cross examination the respondent had given the names of the following persons, claiming that they had retired long after attaining the age of 55 years :-
1. Mr. Sampers.
6. Mr. Nihal Chand.
2. Mr. Haji Hashim.
7. Mr. Abdul Rabb.
3. Mr. Nadir Shah.
8. Mr. Ustad Agha.
4. Mr. Capadis.
9. Mr. Nana.
5. Mr. Wasim.
(1) 1972 SCMR 395 (2) 1975 SCMR 352 ' On the other hand the petitioners, through their director K. E. Bankwalla,1 filed a counter-affidavit claiming that most of them had retired 15 years, previous to the passage of the resolution referred to above, and all of them had retired five years previous to it: and that their retirement came about at the age of 55. It is also claimed that persons at S. Nos. 1 and 5 were never in the employment of the petitioners firm. It was conceded by respondent Fernandes in his cross-examination that all of them had retired prior to the passage of the resolution. The record of these employees was not available with the petitioner firm as according to the affidavit of Bankwalla, all record of the Company which is older than five years is destroyed. At the same time the petitioner firm filed service documents of the following personnel, showing their retirement at the age of 55 :- {{TABLE TEXT}} 1.
2.
3.
4.
5.
6. 7.
8. Name E. S. Mehta H. A. Ahmedi B. P. Chadiali Baboo Khan Sadayar Khan.
Hussain Syed Zafar.
U. Menezes.
Mohammad Suleman.
Leslie F. D. Silva. Retired on 10-12-1974. 28-3a1974. 19-5-1975. 7-1-1975. 8-8-1975. 31-12-1975. 31-1-1975.
29-3-1974. At the age 55 years PP 'I, ft PP PP Pt PP SP PP OP Pt Pt Pt PP {{TABLE TEXT}} ' All these facts have not been taken into consideration by the learned Presiding Officer of the labor Court. The inescapable conclusion that can be drawn from this evidence is that the long-standing practice of the petitioners firm was to retire its employees at the age of 55, and the resolution of 14th October, 1910, merely gave concrete expression to such policy. The documentary evidence filed by the petitioner firm establishes it beyond doubt that since the passage of the resolution the consistent policy is to retire employees at that age. The respondent has failed to bring on record any evidence to show if a different retiring age was the rule at the time he joined the petitioner firm.
No employee has a vested right to indefinite continuance in service. Mr. Shahani also conceded that it is for an employer to determine the age of superannuation of its employees. Rules of superannuation, in the absence of any contract to the contrary, would always apply to all existing employees. The Indian ruling reported as Workmen of K. B. & Co. v. Kettlewall Bullen & Co. (1) does not apply to the facts of the present case because the observation in that cay was that in the absence of any satisfactory evidence that the rule of retirement at 55 was actually enforced as against prior employees, it could not be said that prior employees accepted such rule.
' The contention regarding mala fide in the order of retirement is urged on the grounds of earlier litigation between the parties. Respondent Fernandez had, in October 1972, reported against one Lal Hussain, an officer of the petitioner firm, alleging that he had been indulging in acts of smuggling etc. That officer was interrogated by the police, but was not proceeded against as his goods, seized by the Customs authorities earlier, were released. This conduct of Fernandez calculated to amount to misconduct and he was dismissed after the formalities of inquiry etc. This dismissal was challenged by Fernandez before the Junior labor Court, who held it illegal and he was ordered to be re-instated. Appeal having failed, he was taken aback by the petitioner firm but was asked to go on
(1) 1964 I, L C,684 ' special leave with full salary. On the basis of this treatment it is contended that the retirement is mala fide, solely to get rid of the respondent. The conduct of the petitioner firm in sending respondent Fernandez on special leave may be highly objectionable, but the respondent had acquiesced in it. He accepted the arrangement and lived under it for more than one and a half year. He did not complain to the Labor Court, because in case such conduct was found to be in violation of the Court's orders the petitioner firm could be prosecuted. But where the retirement takes place at the age of superannuation, according to a policy being followed with respect to all employees of the firm, it cannot be claimed, merely on the score of such conduct of the petitioner firm that in ordering the retirement of the respondent at the age of 55, it acted in a mala fide manner.
' The learned counsel for the respondent has contended that the respondent is quite fit physically, and that the petitioners have brought no evidence on record to show if his physical condition is otherwise. This factor is totally irrelevant so long as a firm age of retirement is fixed. In such cases the presumption drawn by the employers, fixing such age for superannuation, is that their employees cease to remain economically productive or useful to their concerns after attaining such age. For exceptional case the provision of re-employment is made, which was also made by the petitioner firm in the case of its employees holding managerial posts, as is evidenced from the resolution of 14th October, 1970, quoted above.
' The main objection of the petitioners is that the application under section 25-A of the Ordinance was not maintainable as no right guaranteed or secured under any law, award or an agreement was infringed. In reply the learned counsel for the respondent contends that Standing Order 12(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (Ordinance VI of 1968) provides him a right to seek redress from a labor Court. But this provision merely states that in case a workman is aggrieved by termination of his service he may take action in accordance with the provisions of section 25-A of the Ordinance. This means that the workman has to be an aggrieved person in terms of that section. This does not mean that such workman, if he merely dislikes his termination, he may agitate the matter before the labor Court. The learned counsel for the respondent readily conceded that in order that a person be aggrieved he has to show infringement of any right as contemplated by section 25-A of the Ordinance. This is also clear from the language of Standing Order 12(3) of Ordinance VI of 1968 where there is specific reference to section 25-A of the Ordinance. In order that the provisions of this section be attracted it has to be shown that a right, guaranteed and secured by any law, award or agreement has been infringed. No law, award or agreement guarantees an unlimited period of service ; none lays down that an employee of a commercial or industrial concern shall be retained beyond the age of 55 or otherwise fixes any date of retirement. On the other hand an employer has always the right under Standing Order 12(1) of Ordinance VI of 1968 to terminate the services of a workman after giving one month's notice. The only condition is that such termination should be for reasons other than misconduct. In the present case the employer firm has, in order to clear any doubts in the matter, fixed a firm date of 55 years, as the age of retirement. The respondent No, 2 having failed to show if any such guaranteed or secured right had been infringed by virtue of the order of his retirement I would hold that an application under section 25-A of the Ordinance was not maintainable. I would therefore accept the petition and direct that the order of the Labour Court being without lawful authority is set aside. Parties to bear costs.