' Through this revision under section 115, P.P.C., the applicant has called in question the order dated 27-10-1998 passed by learned 2nd Additional District Judge, Karachi, West whereby the first appeal filed against judgment and decree passed by learned 3rd Senior Civil Judge, Karachi decreeing the suit of the respondent was dismissed.
2. In the year 1992 Khalilullah Lodhi, the respondent filed a suit against the applicant, M/s. National Engineering Services Pakistan (Pvt.) Limited (NES Pak) for recovery of Rs,1,88,045 as the amount due on account of gratuity and drafting allowance/technical pay payable to him by the applicant- company. The applicant company resisted the suit and filed written statement, whereafter issues were framed and evidence was recorded. Learned trial Court decreed the suit which was challenged in appeal but the appeal failed. Thus, both the Courts below rendered concurrent findings in favour of the respondent.
3.. The factual background of the case is that the respondent was an employee of the applicant- Company/Organization from 15-10-1974 and at the time of retirement he held the post of Chief Draftsman. During the tenure of his service he requested the applicants for payment of technical pay; he was informed that his case was under consideration and ultimately when he retired from service he was paid dues other than gratuity and drafting allowance/technical pay. The respondent claimed that he was entitled to an amount of Rs,1,49,090 as gratuity and Rs,38,955 as technical pay (excluding the drafting allowance already paid to him) that is to say in all a sum of Rs,1,88,045. The applicants, in the written statement, took the plea that the respondent was not entitled to technical pay as he was a certificate holder while the technical pay was admissible only to Graduate Engineers/Architects/Planners. It was, however, admitted by the applicant that the respondent was drawing drafting allowance in Grade 8-A and continued to receive this allowance up to 30th June, 1983 according to his entitlement until his promotion to Grade-9 on 1-7-1983.
Thereafter, this allowance was stopped but again as a matter of policy it was revived w,e,f, 1st July, 1990, in Grade-9. Further, according to applicant, the respondent was not entitled to gratuity a he had already received Provident Fund and that for the purpose of gratuity he was not an employee within the meaning of Gratuity Rules.
4. Learned counsel for applicant assailed the finding of the Courts below on the point of grant of gratuity from different angles. He contended that the respondent is not an "employee" within the meaning of the National Engineering Services (Pakistan) Limited Employees (Grant of Gratuity)
Rules, 1973 (hereinbelow to be referred to as 'Gratuity Rules'), therefore, he cannot claim gratuity from the applicant-company. Secondly, the technical pay and gratuity fall within the Payment of Wages Act, 1936 for which the jurisdiction vests in Labour Court and the jurisdiction of Civil Courts is barred. He further submitted that under section 12(6) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 also the respondent is not entitled to gratuity. He argued that even otherwise the gratuity and technical pay are not guaranteed rights.
5. Learned counsel for respondent controverted the above contentions firstly, on the ground that the so-called Gratuity Rules referred to by learned counsel for applicant are not statutory rules and have no legal sanction for their enforcement. Regarding the application of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 he argued that the proviso to this subsection lays down an embargo and it was for the applicant to lead evidence that such conditions were satisfied, but no such material could come on record. He also argued that there are concurrent findings of the Courts below founded on the evidence placed on record the same, therefore, could not be disturbed.
6. The contention advanced by learned counsel for respondent may be correct plainly to the extent that the Gratuity Rules are not statutory rules and cannot as such take away a right to which an employee/workman is otherwise entitled. A question, therefore, arises whether the respondent was otherwise entitled to gratuity under any law, disposition or agreement other than the Gratuity Rules.
In order to secure a rational answer to this question , a discreet scrutiny is to be made of the material placed on record by the respondent/plaintiff to find out the basis of his claim. The respondent, on the point of gratuity, stated in his deposition that he wrote a letter to the applicant on 16th September, 1991 for payment of gratuity. He produced the same as Exh.7, but on perusal' of the documents annexed to this Revision Application it is found that the letter dated 16th September, 1991 (Exh.7) is a reply from applicant to respondent's letter informing him that his case for grant of gratuity was taken into consideration and he was found not entitled thereto on the ground that he was registered with M/s. Employees Old-Age Benefits Institution w,e,f, 1st July, 1986 and had completed 5 years qualifying service for pension purpose with Employees Old-Age Benefits Institution up to the date of his retirement. The respondent, in his deposition, has also referred to legal notice issued by him to the applicant. On going through the said notice (Exh.8) it is revealed that the respondent has set up his claim, inter alia, as regards gratuity on the basis of rules. The reply to this notice from the applicant, however, refers to rules and policy of the company. The respondent, in his evidence, produced copies of memorandum/letter etc. Showing several amendments made in the Gratuity Rules of the applicant out of which Exh.10 is a memorandum relating, amongst others, to the eligibility of an employee to gratuity. In substance it is a modification of rule 1(g) of NES Pak Employees (Grant of Gratuity) Rules, briefly to be referred, to as 'Gratuity Rules'. All these documents cumulatively depict a clear picture that the respondent/plaintiff had all along founded his case on the aforesaid Gratuity Rules of applicant. No doubt, eligibility, scale of payment etc. Can be visualized from these documents but in essence the benefit of gratuity could only be derived by the employee as defined in these rules. The term "employee" as defined in rule 1(e) of aforesaid Gratuity Rules reads as under:- "1(e) 'Employees' for the purpose of these rules shall mean the whole time Chairman, whole time Directors and other whole time monthly paid regular employees of NESPAK other than:-
(i) Employees governed by the provisions of the Old-Age Benefit Act as amended from time to time.
(ii) Employees on contract and
(iii) ."
7. On a plain reading of the above it would appear that this provision excludes the persons governed by the provisions of Employees Old-Age Benefits Act, 1976 from the definition of employees and it was on this premise that the letter dated 16-9-1991 was issued to the respondent informing him that he was not entitled to gratuity since he had completed 5 years qualifying service for EOBI pension.
8. In the first instances, it is an admitted position that the Gratuity Rules were made effective from 1-5-1973 as is clearly mentioned in the rules themselves. The respondent was in employment of the applicant organization from 15-10-1974 and upto that time the Employees Old-Age Benefit Act was not enacted; it came into force with effect from 15-4-1976. Rule 1(e)(i) of Gratuity. Rules excluding the persons governed by the provisions of the Employees Old-Age Benefit Act from the definition of 'employees' was introduced at a later stage. It is an admitted position that the EOBI Act by itself does not debar any other benefit available to an employee, therefore, the mischief of rule 1(e)(i) of Gratuity Rules shall stand circumscribed within its own domain without affecting any other right.
Rule 2 of Gratuity Rules lays down condition for entitlement to gratuity and prescribes that an employee having completed at least 3 years of service would be entitled to gratuity. Rule 4 lays down the different scales on the basis of minimum qualified service starting with 3 years. It is the case of the applicants that the respondent was registered with Employees Old-Age Benefit Institution with effect from 1-7-1986 as per their letter dated 16-9-1991, Obviously, the respondent had earned 11 completed years of service to his credit. Thus, on a plain understanding of the Scheme of the Gratuity Rules he was entitled to gratuity against his completed years of service within the meaning of the said Rules. Introduction of clause (i) to sub-rule (e) of rule 1 would not, take away the rights with retrospective effect. Conversely, the applicability of EOBI Scheme on registration of applicant with the EOBI Institution from 1-7-1986 would not have effect of taking away the benefits and rights accrued to an employee prior to that point of time. This was never the object of the EOBI Act to deprive the persons entitled thereunder to any benefit from other benefits earned by them under relevant laws/rules etc. Even the witness of respondent has admitted that the officers and employees of the applicant are entitled to gratuity with effect from 1-7-1993 and that the EOBI Act, 1976 does not debar the employees from the facility of the gratuity after they fall under the, benefit of the said Act. He has admitted that the applicant company had paid to the retiring employees provident fund and gratuity even before 1-7-1993. He has also admitted that the gratuity is calculated from the date of entry in the service and is paid after retirement. It seems, the respondent has been discriminated for no valid reason by disallowing the benefit of gratuity to him for the period of completed service before application of EOBI Scheme to him. Rule 1(e)(i) of the Gratuity Rules by implication would, at the most, affect the period he was, covered by EOBI Act and was receiving pension/benefit thereunder. I am, therefore, inclined to hold that the respondent was entitled to gratuity calculated on the basis of his service before 1-7-1986.
9. As regards the applicability of Industrial and Commercial Employment (Standing Order)
Ordinance, 1968 it may be noted that this plea was not taken in the written statement and ostensibly on account of this drawback the applicants did not place on record such evidence as to demonstrate that the conditions governing the factual aspects prescribed in the proviso to subsection (6) of section 12 of this Ordinance stood satisfied. Even otherwise it is settled law that evidence could not be led on a point which is not pleaded in the pleadings. Binyameen v. Hakim (1996 SCM R 336) may be cited with benefit in this regard.
10. Conceivably, it was for this reason that evidence could not be led on this point. However, from legal point of view a precedent of Labour Tribunal, National and Grindlays Bank v. Employees Union 1974 PLC Note 41 at P.23 was cited which supports the contention raised by learned counsel from applicant that gratuity is not payable when the employer establishes provident fund and the contribution amount is equal to employee's contribution. Although evidence has come on record through the respondent that G.P. Fund was deducted towards respondent's account and on retirement he was granted G.P. Fund but since this plea was not raised at the stage of trial, it could not be said that the other requirements as to matching contribution stood satisfied or not. Anyway, a party cannot be allowed to make gain on the basis of a plea which is not raised by him at the earliest stage.
11. As regards jurisdiction no such plea was raised at the stage of trial, therefore, it is too late for the applicant to agitate this point and avail an opportunity to place such material on record to controvert the plea of lack of jurisdiction, if any. The contention based on this point is not entertained.
12. On the issue of technical pay/drafting allowance the trial Court has mainly taken note of the fact that the applicant/defendant failed to produce any documentary evidence and Rules and Regulations of the company disentitling the respondent/plaintiff from allowance of technical pay w,e,f, July 1983 to June, 1990. On this point, in fact, the respondent/plaintiff placed on record some documents out of which the most significant one is the order dated 9-4-1978 whereby technical pay was allowed to Engineers and Architects in Grades 8-A to 10 of the applicant-company.
Further, the memorandum dated 11-4-1978 of applicant-company was placed on record wherein the Chief Drafting Division, Drafting Coordinator and other Diploma Holders in Grades 8, 9 and 10 employed on engineering effort, were declared to be qualified for technical pay. In line with these documents there is admission of the applicant/respondent in the written statement that the respondent/plaintiff was allowed drafting allowance as matter of policy w,e,f, 1-7-1990 in Grade-9.
It is interesting to note that, as stated in the written statement, the respondent/plaintiff was getting drafting allowance while he was in Grade 8-A and he availed such allowance upto 30th June, 1983, but when he was promoted to Grade-9 on 1-7-1983 the allowance was withheld. However, it is admitted that this allowance was revived from 1-7-1990 although the respondent was still in Grade-9. The only explanation is that as a matter of policy the applicant company allowed drafting allowance to respondent. What was the reason that the said allowance was withheld for the earlier period although the respondent was in Grade-9 is not explained. There is no explanation as to what were the parameters of the policy under which the respondent was allowed drafting allowance all of a sudden from 1-7-1990. The applicant's witness has, nevertheless, come up with a version that the respondent was somehow entitled to drafting allowance which was given to him from July, 1990. On a thorough examination of the material on record it seems, the said allowance was arbitrarily withheld for the period from 1st July, 1983 to 30th June, 1990. The respondent was admittedly entitled to this allowance before 1-7-1983 and the same was revived after 1-7-1990.
There is no legal justification to withhold the same during the intervening period and as such I would affirm the view taken by the Courts below on this point and uphold the finding that the respondent was entitled to drafting allowance for the period from 1-7-1983 to 30-6-1990.
13. In result of the foregoing discussion it may be concluded that the concurrent findings of the Courts below granting gratuity to the respondent was not open to question except to the extent that it was admissible under the rules only for the period of service before 1-7-1986 and not for the period during which benefit under EOBI Act was availed. The decree to this extent is, accordingly, modified as for the claim of gratuity is concerned. The finding for the purpose of grant of drafting allowance for the period from 1-7-1983 to 30-6-1990 is upheld and the decree to this extent is maintained.
14. On the whole, with the above modification as to the claim of gratuity the concurrent findings of the Courts below are maintained and this revision application is dismissed with no order as to costs.