1986 PLC 59
ORDER
1. I will dispose of the application filed by the applicant above named under Standing Orders Ordinance, 1968 read with section 15 of the Payment of Wages Act, praying therein for issuing directions to the opponent to pay him the claim of gratuity and encashment of leave.
2. Briefly, the facts, that led to file the present claim are that the applicant was employed on 1‑4‑1969 and was retired from service on 12‑11‑1983, having reached the age of superannuation. He alleged that he is entitled to the payment of Gratuity amounting to Rs.17,160 and Rs.18,532 being the encashment of leave at his credit at the time of his retirement, but has been refused, although he applied for the same.
3. The opponent filed written statement and denied the liability and also questioned the jurisdiction of the Court: and maintainability of the application.
4. The following issues were framed:‑
(1) Whether the application is not maintainable at law?
(2) Whether the Payment of Wages Act is applicable to S.A.S.O?
(3) Whether this Court has no jurisdiction?
(4) Whether the applicant is entitled to Gratuity as claimed by him?
(5) Whether the applicant is entitled to encashment of leave as claimed by him?
(6) What should the order be?
5. The applicant examined himself in support of his claim, while the opponent preferred to close his side and did not adduce any evidence.
6. I have heard the arguments of the learned counsel. Mr. M. Bashir Awan also filed written arguments. I have also gone through the record and the documents. My findings on each reasons, therefore, are given as under:‑‑
7. ISSUE NO. 1:
8. The applicant has claimed the gratuity admissible under the provisions of Standing Orders Ordinance, recovery of which is to be made under section 15 of the Payment of Wages Act. The law has specifically conferred the additional powers on the Authority notified under Payment of Wages Act, to effect recovery of the gratuity in case it is not paid by the opponent. Similarly the encashment of leave is to, be made to the worker in term of Standing Order 12(4).
9. In support of his contention that the standing orders are applicable on the establishment of the opponent, Mr. Awan, the learned counsel for the applicant, has placed on record the following unreported judgment and cited 1983 P L C (C.S.) 993:
(i) Saadat Hussain Kazmi v. S. A.S.0.
(ii) Abdul Qadir v. S.A.S.O. the first case is a decision of the Hon'ble Sind Labour Appellant Tribunal, while the second one is of learned Sind Labour Court No. VI, Hyderabad. The third cited case is a decision of Sind Services Tribunal. In all these decisions it has been held that the provisions of Standing Orders Ordinance, 1968, are applicable on S.A.S.O. the opponent organisation .
10. In view of the above legal position, I hold that the application is maintainable in law,
11. ISSUES NOS. 2 AND 3 :
12. The only contention of the learned counsel of the opponent side, is that since the provisions of the Payment of Wages Act are not applicable on the opponent organisation, neither the applicant is competent to file his claim before this Court, nor this Court has jurisdiction to try the matter.
13. The submissions of Mr. Awan, the learned counsel for the applicant, are that it is immaterial, whether the provisions of Payment of Wages Act, are applicable or not, on an organisation for the purpose of recovery of the claim of the nature, because the Gratuity or encashment of leave is neither admissible nor payable under the Payment of Wages Act. The gratuity has specifically been excluded from the definition of wages and the applicant has not claimed the gratuity as "wages". The Authority has been conferred with the specific powers under section 15(2) of the Payment of Wages Act, to effect the recovery of the gratuity "payable under any law". The contention of the learned counsel Mr. Awan is that the opponent has misconceived the legal proposition that as if the Gratuity is being claimed as wages.
14. He further contended that substantive law under which the gratuity and encashment of leave is made payable in "Standing Orders Ordinance, 1968", therefore the applicability or non‑applicability of the Payment of Wages Act, is of no help to the opponent side.
15. In support of this contention Mr. Awan, cited the following case‑law
(1) P L D 1968 Dacca 276.
(iii) Unreported judgment of Sind Labour Appellate Tribunal, titled Daily Mashriq v. Mst. Rehmat.
16. In Dacca authority, the legislature by reference has bees' discussed. A similar proposition of law as in the present case came under discussion before their Lordships and it was held that "The Legislature by enacting the later part of section ....added another mode of realisation of sale‑tax"
17. The other two decisions are direct authorities on the issues, wherein it has been held by the Sind Labour Appellate Tribunal that only the procedure of Wages Act/ Commissioner Workmen's Compensation, in determining the claim of the applicant, which is otherwise admissible/ payable under any law (substantive law i.e. Standing Orders Ordinance, 1968):
18. The submissions of Mr. Awan, are that since the relief sought by the applicant is payable/ admissible to him under the Standing Orders Ordinance, 1968, therefore, the applicability or non‑applicability of the provisions of Payment of Wages Act, is immaterial.
19. With regard to the jurisdiction of the Court, Mr. Awan, submitted that the legislature has itself conferred the jurisdiction and referred me to section 15(2) of the Payment of Wages Act in this respect.
20. It was next contended by Mr. Awan, the learned counsel for the applicant, that if contention of the opponent is accepted that in case of non‑applicability of Payment of Wages Act, the Court has no jurisdiction to grant any relief then it will be abuse of process of the Court, because an alive worker cannot claim his legal dues made recoverable under section 15 of the Payment of Wages Act, but in case of his death, his legal heirs can claim the same legal dues, under the provisions of Standing Orders Ordinance, 1968. He submitted that it has never been such a rigid intention of the legislature particularly in Labour Laws.
21. I have given anxious consideration to the above submissions and have come to the conclusions that even if the provisions of Payment of Wages Act are not applicable this Court has the jurisdiction to try the claim in term of additional power conferred by Legislature as inserted in section 15(2) of the aforesaid Act, by the Labour Laws Amendment Act of 1977.
22. ISSUES NOS. 4 AND 5 :
23. It has been contended on behalf of the applicant that it ha: been established that the Standing Orders Ordinance, 1968 is applicable on the opponent organisation, therefore the applicant is entitled to the Gratuity in term of Standing Order No. 12(6) and encashment of leave in term of 'Standing Order No. 12(4). The opponent has not examined any witness and even the author of reply statement has also not beer adduced in evidence, to rebut the claim. The assertions of the applicant, therefore, go unrequited.
24. The applicant has applied for leave, copy Exh. P/1, much before his retirement, but it has not been granted, therefore, he is entitled to the encashment of the leave.
25. The applicant ha6 filed copy of the Gratuity scheme framed by the S.A.S.O., dated 6‑5‑1984 and sought the increased benefit under this scheme, but the same having been framed after his retirement is not applicable in his case.
26. I, therefore, answer the issues in affirmative.
27. ISSUE N0. 6 .
28. In view of the above discussion, I allow the application as detail given below:‑‑
(i) Gratuity from 1‑4‑1969 to
29. 12‑11‑1983 for 15 years.
30. @ Rs.1,144 p.m. Rs.11,440.00
(ii) Encashment of leave for
31. 486 days @ Rs.1,144 p.m. Rs.18,532.00
32. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑
33. Total: Rs.29,972.00
34. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑
35. Accordingly the opponent is directed to deposit Rs.29,972 (Rupees twenty‑nine thousand, nine hundred seventy‑two only this Court within 30 days for onward payment to the applicant.
36. A.A.
37. Order accordingly.