' These two appeals are filed by the appellant Bank (hereinafter referred to as the Bank) against the order, dated 24th January, 1998 passed by the learned Labour Court. No,5 allowing the applications, filed by the respondents, under section 25-A, Industrial Relations Ordinance, 1969, with full back benefits.
2. These appeals relate to similar points of fact and law and, therefore, I intend to dispose them of by this common judgment.
3. The facts, giving rise to the above appeals, briefly stated, are that both the respondents were permanent workmen doing clerical job for a long period of 35 to 38 years. Their services were terminated by the appellant by Memo. No,RH/1605 and RH/1605, dated 5-9-1994 which reads as under:-- "The undersigned highly appreciates your long services which you rendered honestly and efficiently but deeply regret to inform you that as you have crossed the age of superannuation, so you are hereby retired with full respect and honour from the services of this Bank with immediate effect.
' You are therefore, hereby directed to collect your dues from Establishment Department on submission of clearance certificate from the Account Department.
' For and on behalf of Afghan ' National Bank Pak. (Pvt.) Ltd.
(Sd.)
' Managing Director."
' The respondents, therefore, sent grievance notice dated 27-10-1994. The appellant communicated their reply by letter, dated 16-11-1994. Being not satisfied with the reply of the appellant, the respondents filed their applications under. Section 25-A, of I.R.O., 1969 on 15-1-1995 challenging the memo. Of their termination of their service and praying for reinstatement with back benefits. The appellants filed their reply statement. Both the respondents filed their affidavits-in-evidence separately, but only applicant Mashkoor Ali Subzwari was cross-examined and the said cross- examination was adopted in the other case. The appellant produced one Raza Hussain Patel, working as Secretary of the Bank, who was cross-examined by the respondents counsel. The learned Presiding Officer, after hearing the arguments of the learned counsel for the parties, allowed the grievance petitions by his order, dated 24-1-1998 ordering reinstatement with full back benefits.
4. I have heard Mr. Latif Saghar for the appellant Bank and Mr. Mushtaq Shaikh for the respondents and have read the decision of the learned Labour Court with them.
5. Before dealing the submissions of the learned counsel for the parties, it seems appropriate to reproduce the points for determination of the case, framed by the learned Labour Court, which read as under:-- "(1) Whether the grievance petition is time-barred?
(2) Whether the applicant has received legal dues in full and final settlement?
(3) Whether the applicant was retired from service in contravention of Standing Order 12 of the Ordinance, 1968?
(4) Whether the applicant is legally retired from service on attaining the age of 60 years ?
(5) What should the order be ?"
6. Mr. Latif Saghar, dealing with Point No,1 regarding the grievance petition being time-barred, submits that admittedly memo. Of termination of service was issued to the respondents on 5-9- 1994. The grievance notice was given by the respondents on 27-10-1994 reply whereof was sent by the appellant on 16-11-1994 and the. Application under section 25-A of the I.R.O., 1969 (though, dated 12-1-1995) was filed on 15-1-1995. Mr. Saghar, referring to the provision of sub-clauses (2) and
(4) with the proviso of section 25-A, of I.R.O., 1969, submits that the grievance petition is to be filed within two and half months from the date of service of grievance notice. Admittedly, the notice was sent on 27-10-1994, therefore, according to him, the application should have been filed, before the learned Labour Court, latest by 9th January, 1995. Whereas the application, having been filed on 15- 1-1995, is barred by seven days. On the other hand, Mr. Mushtaq submits that he has filed the grievance. Petition within two months of the receipt of the communications in reply to his grievance notice from the appellant. Since the grievance notice was replied on 16-11-1994, his tiling of application on 15-1-1995, was just within time.
6-A. Mr. Saghar placed his reliance on Tariq Mahmood v. Messrs Rice Export Corporation of Pakistan Ltd., Karachi (1981 PLC 888) wherein it was observed by this Tribunal that the notice should have been served by the appellant on the employer within three months of the date of the accrual of the cause of action and the grievance petition should have been filed within a maximum period of two and half months after the service of the grievance notice. The grievance petition filed after about 22 months was held to be hopelessly time-barred. In another case of Fayyaz Ali v. Sindh Labour Court No,V and another (1981 PLC 888) it was, inter alia, observed that the grievance petition filed by the worker after four and half months after the grievance notice to employer, was time-barred, holding that the grievance petition should have been filed within two and half months of the service of the grievance notice. Yet, in another case reported as Ali Afsar Khan v. Messrs Hoechest (Pakistan) Ltd. (1982 PLC 422) it was observed that the grievance petition was to be filed within two and half months from the date of receipt of reply and no reply having been received to grievance notice within the prescribed period, the aggrieved workman within a two and half months or two and quarter months depending upon whether his case is covered by subsection (2) or subsection
(3) from the service of notice upon the employer to prefer his grievance petition.
7. A bare perusal of subsection (4) of section 25-A read with the proviso it seems apparent that said subsection (4) provides a number of eventualities as enumerated hereunder:--
(I) If the employer fails to communicate his decision within the period specified in subsection (2) or subsection (3), or
(ii) if the worker is dissatisfied with such decision, the worker has a right to take the matter to the Labour Court, either directly or through his shop steward of collective bargaining agent.
' The proviso prescribes the period within which the grievance petition is to be filed. It visualises two situations. The first is where there is no reply received from the employer to the grievance notice within the period prescribed in subsection {2) or subsection (3). In that case the grievance petition can be filed in the Labour Court within a period of 2 months and 15 days or 2 months and 7 days, as the case may be, from the service of the grievance notice upon the employer. The second situation is where reply is received within the period specified in subsection (2) or subsection (3), the grievance petition is to be filed within 2 months of the receipt of such reply. The third situation is where the employer sends the reply to the grievance notice after the expiry of the period specified in subsection (2) or subsection (3), as in the case before me. The cause of action accrued on 5-9- 1994 and the notice of grievance was sent on 27-10-1994, reply was communicated by the Bank to the respondents on 16-11-1994 and the petition was filed on 15-1-1995, which seems to be time- barred because the period of filing grievance petition, as determined by the proviso to subsection
(4) above, will be two and half months. In all 15 days to enable the employer to give reply and two months to enable the workman to file the petition. Mr. Mushtaq submitted that the period of two months will be reckoned from the date of the receipt of the reply i,e, it will start from 16-11-1994. If this submission of the learned counsel is accepted, for the sake of arguments, the period will be deemed to have extended till such time that the reply is made by the employer to the workman, may be three months or six months or one year, which cannot be the intention of the Legislature.
The law envisages a speedy trial and that is why the period has been fixed in the Statute.
Subsection (2) prescribes a period of 15 days for reply of the grievance being brought to the notice of the employer. The words shall communicate his decision in writing to the workman within 15 days, are of the mandatory nature by fixing time limit. If he fails to communicate his reply or communicates within 15 days or after 15 days in all the three situations, the period of two and half months and 15 days will be reckoned as period fixed in the proviso, as stipulated in subsections (2) and (3) read with subsection (4) and the proviso. I, therefore, agree with the submission of the learned counsel for the appellant that the grievance petition was barred by nearly seven days.
8. Now dealing with points Nos, 2 and 3, Mr. Mushtaq submits that the termination of service was in contravention of Standing Order 12 of the Standing Orders Ordinance, 1968. He submits that under Standing Order 12(1), it has been clearly stated that a notice for terminating employment of a permanent workman, for any reason other than misconduct one months' notice shall be given either by the employer or the workman, or one month's pay in lieu thereof. Mr. Saghar, in reply, submitted that while settling the legal dues, on retirement, the Bank had included one month's pay in lieu of notice, but the respondents refused to accept. Mr. Saghar, however, submits that the appellant has always been ready and willing to pay one month's salary in lieu of notice as provided under Standing Order 12(1) of the Standing Orders Ordinance, 1968, he is ready to pay the one month's salary to the respondents at the time they come to collect the remaining dues. This also settles Issue No,2 accordingly.
9. Mr. Saghar placed his reliance on Sikandar Hayat v. Sindh Labour Appellate Tribunal, Karachi and 2 others (1991 PLC 508) and submits that no exception can be taken to the memo. Of termination, issued by the appellant Bank, inasmuch as it is in full compliance of the Standing Order 12(3) that in case of termination, reasons are to be given. The reasons have been given in this case as "crossing the superannuation age".
10. Now coming to point No,4 which is the most material issue going to the root of the case. It is an admitted position that respondents had been in service of appellant for a long period of 35 to 38 years. During this long period service, there seems to be nothing on record to indicate that they made any complaint or representation to the appellant Bank that the age of retirement has not been mentioned in the appointment letter and, as such, they may be intimated about the age of their retirement, apparently, because there has been a constant practice of the appellant Bank to retire its employees on attaining the age of 60 years (refer paragraph 4 of the written statement).
There is an allegation that they have been retired as a result of their union activities, but there is only a word of mouth. The allegation is, not at all, supported by any evidence. If the appellant Bank was annoyed of their union activities, it seems as to how they could continue in the services of the Bank, peacefully and without any complaint, on either sides, for such long period of 35 to 38 years.
In fact, the memo. Of termination speaks itself high of their service, rendered by them to the Bail. As is evident from the memo. Of termination, their services came to an end for the reasons, specified thereon, on crossing superannuation age of 60 years. There is no evidence that the respondents were, in any way whatsoever, victimised for their union activities before the issuance of memo. Of termination.
11. Mr. Latif Sahgar submits that although there was no fixed rule as to the age of retirement, but there has been a constant practice since inception of the appellant Bank. Mr. Saghar further submits that there is, however, a settlement which was concluded between the Union and the Bank on 25-10-1995 made effective from 23-8-1994. It is pertinent to note that the Standing Orders Ordinance, may be modified by means of collective agreement and not otherwise. Provided that no such settlement shall have the effect available to the workman under the provisions of the schedule. In order to appreciate the submission of Mr. Sagar, it seems relevant to reproduce clause 3 of the said settlement, which reads as under:- "3. Age of retirement.-It is agreed that the age of retirement/superannuation would be 60 years old or completing of 40 years' service. The age of concerned employee will be acceptable as per record maintained by the Management/office. This clause would take effect from 23-8-1994 (1-6- 1973) and no worker/employee if retired or would be, retired after this date, would have any grievance on this count. This item is not for limited period and it will be effective for future also and it will be a part of Service Rules, 1960 (1336)."
The memo. Of termination seems to be within the parameter of clause 3 of the settlement under heading "General".
12. Mr. Saghar lastly submitted that the learned Presiding Officer placed his reliance on an order passed by the Labour Appellate Tribunal N.-W.F.P. In Appeal No,130 of 1994 in the case of MIs.
Afghan National Bank v. Haji Akhtar Ali Qazalbash. He submits that a Constitution Petition No,543 of 1996 was'filed by the appellant Bank in the Peshawar High Court against the decision given by the Labour Appellate Tribunal N.-W.F.P., which was allowed by a Division Bench of the Peshawar High Court by its order, dated 23-12-1997 reported in 1998 PLC 331. It appears that this fact could not be brought to the notice of the learned Presiding Officer, as it appears to have been published later on.
13. Mr. Mushtaq, on the other hand, placed his reliance on the judgments, reported as (1) Messrs A.E.G. Telefunken Pakistan (Pvt.) Limited v. Sindh Labour Appellate Tribunal and 2 others (1989 PLC 525) and (2) Services Mess (formerly Services of Club), Karachi and others v. Budha Khan and others (1993 PLC 371). I have read both the judgments and find that the facts of the two cases decided and referred to by Mr. Mushtaq, are distinguishable from the facts of the instant case. In the first case, it was, inter alia, observed that...... Removal of worker in the form of superannuation would amount to termination of his employment....Such worker could, therefore, seek redress of his grievance under. Section 25-A of Industrial Relations Ordinance". It was further observed that, "normally rules or regulations affecting the substantive rights of workers when framed by employers can only be applied prospectively unless accepted by the worker". In the instant case, there was no rule or regulations, but there was a constant practice of the appellant Bank since a long time. Moreover, the retirement age was fixed by mutual consent by the appellant Bank under a settlement accepted by the Collective Bargaining Agent. In the second case, it was observed that, in absence of any provision of law or rule fixing age of retirement, employer would be free to determine age of retirement of employer". For this view, reliance was placed on the Telefunken's case, as referred to above.
14. It is apparent that in the Industrial Relations Ordinance or Standing Orders Ordinance, no superannuation age has been prescribed by any of the provisions, contained in the aforesaid laws, which may directly govern the present case. However, the appellant Bank before settlement, referred to above, has been retiring its employees constantly in accordance with the long standing practice of the Bank. Moreover, the settlement, arrived at between the Bank and the C.B.A., fixes specifically, the age of superannuation/retirement as 60 years or 40 years of service w,e,f, 23-8- 1994. The respondents were retired on 5-9-1994 i,e, after coming into force the said settlement, as such, therefore,, the retirement of the respondents after having attained the age of 60 years or cross the age, as mentioned in the memo. Of termination, is not questionable.
15. For the above discussions, the decision impugned in both the appeals, is set aside and the appeals are allowed.