DECISION ' This case has arisen from the order, dated 26th October, 1999 of Sindh Labour Court No, V. Karachi, whereby the respondent Syed Amir Haider was reinstated in service with full back-benefits. The case of the respondent, as reflected in his grievance petition, was to the following effect. He entered service of the Appellants/Establishment as a Personal Assistant on 16-7-1979 on the salary of Rs,1,800 per month which was subsequently increased to Rs,2,000 per month. By the Sindh Ordinance No, XI of 1991, employees in Sindh were allowed Special Allowance of Rs,200 per month with effect from 1-12-1990 irrespective of the amount of their wages. Due to the respondent's continues demand for payment of the said allowance, the Appellants got annoyed with him and verbally terminated his services. He was stopped from working, with effect from 5-9-1991.
Thereupon, the respondent served a grievance notice dated 30-9-1991 on the appellants by registered post A/D but they gave no reply to the said notice. Hence he filed grievance petition with two-fold prayer of reinstatement and payment of back-benefits.
2. In Reply Statement the Appellants/Establishment questioned the maintainability of the grievance petition on the grounds; firstly, that the respondent was Personnel Officer at the time of termination of his service and not a workman; secondly, the Appellants/Establishment was registered under West Pakistan Shops and Establishment Ordinance and, thirdly, there were only 8 Employees working in the Appellants/Establishment and hence I.R.O. 1969 was not applicable.
Appellants/Establishment also averred that the respondent was in the habit of absenting himself from duty very often and hence he took away Attendance Register which had to be prepared afresh. According to their version the salary of Rs,2,000 drawn by the respondent included allowance of Rs,200 he had been demanding. Furthermore, they have stated in their Reply Statement that respondent's services were terminated because he had attained the age of superannuation of 60 years. He was accordingly given one months' notice that his service would end with effect from 5-9-1991.
3. The respondent has filed his affidavit-in-evidence in support of his case whereas the Appellants/Establishment have filed the affidavit-in evidence of their Manager Abid Hussain. I have heard arguments of the parties' learned counsel and have also carefully gone through relevant record.
4. The first point to be decided is whether the respondent was a workman. On this point respondent's own version is that he was employed in the Appellants' service as a Personal Assistant which post he continued to hold until the termination of his services. He is supported by the appointment order, dated 6th January, 1980 produced by the Appellants/Establishment (Exh.A/1 page 113). It clearly shows that he was appointed as Personal Assistant and not as Personnel Officer. He has denied that he was promoted as Personnel Officer in the officers grade during his entire tenure of service with the appellants. When the alleged promotion order was shown to the respondent in course of his cross-examination he denied that he had ever received that order. He also denied that it carried his initial. In view of the respondent's such denial burden was on the Appellants/Establishment to produce the necessary evidence to prove that respondent was actually promoted as Personel Officer. But I regret to say that there was no such evidence on record. They had obviously not taken any step to prove over his spcalled initial on the said order.
Moreover, the order is silent as to increase in salary of the respondent in consequence of his promotion which is also surprising. Again if he was really promoted by the Appellants/Establishment, the promotion order should have normally been produced alongwith Reply Statement but the said statement was conspicuously silent in this regard. All what has been stated in the said statement was that the respondent was working as Personnel Officer. There is, however, no explanation as to how he reached that position. As regards salary of the respondent it is stated in the Reply Statement that his salary was Rs,2,000 per month inclusive of the Cost of Living Allowance and Special Allowance of 1991. It does not show that subsequent to his promotion his salary was increased and to what extent. The appellants' witness Abid Hussain though speaks of respondent's promotion as Personel Officer, yet he does not say that by such promotion his salary was also increased. What kind of promotion it was? That the salary of the respondent remained the same, as it was neither maintained in the so-called promotion order nor in the Reply Statement nor even in the affidavitin-evidence of Abid Hussain. Considering the evidence on record I have come to the conclusion that the respondent was never promoted during his entire tenurs of service but he continued to hold the post of Personal Assistant to which he was initially appointed. In view of this finding respondent was obviously a worker right from the appointment in the Appellants/Establishment until the termination of his services. Therefore, the argument that his grievance petition was not maintainable was without any force.
5. It may be mentioned here that in the Reply Statement it is admitted that grievance notice, dated 30th September, 1991 of the respondent was received by the Appellants/Establishment and the same was duly replied by the letter dated 10-10-1991. However, the appellants' own witness Abid Hussain adopted entirely a different stand in course of his cross-examination by stating" we have not received grievance notice, therefore, its reply was not given". Thus, the Appellants' solitary witness produced in evidence has contradicted the stand taken by the appellants/Establishment.
Therefore, one should be slow in believing what the appellants have stated with regard to their case.
6. The next point that falls for decision is whether the order of termination of respondent's services was not maintainable. The case of the Appellants/Establishment in this regard is that since the respondent had reached the age of superannuation i,e, he became over 60 years of age his services were terminated with one month's notice and termination letter was duly delivered to him by hand delivery. However, this has been denied by the respondent. According to him his services were terminated without assigning good reasons and due to his repeated demands of payment of Special Allowance and arrears accrued therefrom since December, 1990.May be due to that reason the appellants got annoyed with the respondent and decided to terminate his services, yet the reason given by them in the termination order was respondent's reaching the age of superannuation. It may be true that there were no clear cut rules or instructions with regard to the retirement age of workman. It is also not without foundation that workman does not necessarily retire at the age of 60 years. Undoubtedly no fixed age is prescribed for retirement of workman.
Despite this, it is an admitted position in the present case that the services of the respondent were terminated after he had crossed 60 years of age. Therefore, it could not be argued that Appellants/Establishment could not retire him at that age only because there were no prescribed rules or instructions in this regard. It is common knowledge that Government servants retire on reaching the age of 60 years. Following that analogy if any workman working in Industrial/Commercial Establishment or such other Establishment was retired at the age of 60 years or thereafter, his retirement could not be interpreted as victimization of the concerned worker or workman. The appellants' case is that written order of termination of services/retirement of the respondent was issued wherein as required by relevant law not only he was given one month's notice but the reasons for retirement were also mentioned. In my opinion this was enough compliance of the relevant law as the respondent could not insist on continuing in service by right after the age of 60 years. In these circumstances the manner in which the retirement order was served was immaterial. So also the appellants' motive was of no consequence if the order emanated from their annoyance or their sincere desire to retire him for the reason of his age.
According to appellants, the order of retirement/termination was served on respondent by hand delivery. I have no reason to doubt this version nor could I believe that respondent was deliberately kept in the dark about the order of his retirement. He was informed by the order that he could avail the notice period of one month whereafter he would stand retired. After crossing the age of 60 years the respondent was due for retirement and, therefore, if he was retired the appelants/Establishment could not be held to have committed any illegality in respect of his retirement.
7. For the foregoing reasons while setting aside the order of reinstatement of the respondent, the order with regard to payment of back benefits due to him i,e, up to 5-9-1991 is upheld. Apart from above I am also convinced from the evidence on record that the respondent was never paid the Special allowance of Rs,200 which accrued to him under Sindh Ordinance No,XI of 1991 with effect from 1-12-1990 and, therefore, the amount found due to the respondent from the said date would form part of back benefits payable by the Appellants/Establishment to the respondent and the said amount must be paid to the respondent alongwith his other legal dues.
' The order is announced as stated above.