ARSHAD ALI KHAN Versus MESSRS TOBACCO INTERNATIONAL LTD.

ORDER

Applicant has preferred a claim for the recovery of Rs.19,765.43, on account of the legal dues to be paid by the end of July 1985, as per clause‑4 of the settlement but in spite of that commitment to pay the legal dues, the outstanding liability of the employer of Rs.19,765.43 becomes due, through judicial process.

2. Applicant was a superviser in the establishment from 7‑5‑1965 to 31‑12‑1984. The agreement was signed on 1‑1‑1985. It was agreed that on the closure of the establishment all the workmen will be paid legal dues.

3. This includes the gratuity as well on the last basic pay of Rs.1372.50 with a period of the service of 19 years.

4. Respondent has taken this objection that application u/s 51 is not maintainable. No outstanding liability against them. He has received the over payment of 6,612.6. He is not coming within the definition of workman. He was drawing wages of Rs.800 only.

R E A S 0 N S:

1. If the settlement, is the basis, on which benefit is claimed, that what was agreed to be paid towards the legal dues, on the closure of the factory, the forum that is sought to vindicate the grievance or the recovery of claim is in subsection (2) of section 51 IRO, and the forum for the remedy sought through this execution process is rightly invoked.

2. Further, subsection (1) of section 51 if examined closely, finds to emphasize, on two other important aspects. Subsection (1), emphasizes on the competency of any person entitled, to seek this process of recovery provided he is entitled to receive money, under the settlement, decision of the court, if the Labour Court so directs. Subsection (2) emphasizes on the competency of any workman to seek this process of recovery on two other limitations. Firstly he should have entitlement, secondly he should be a workman, and thirdly he should have the benefit under the settlement, as the case may be.

3. The Labour Court therefore, in exercise of his power under this jurisdiction of enforcing the execution, may not only determine by computation and also recover it for being payable to the workman concerned within the specified date.

4. The objection of Mr. Mahmood Ghani, that wrong forum is chosen by the applicant is dismissed, subject to the another disability; whether he is a workman for the purpose of execution of process in the first instance.

5. To this, the reference is made to the settlement itself, what the intention of the document was to reflect the concurrence. The reciting of the document, in its opening of the paragraph firstly intends that the management is not in position to pay salary to the workers from June 1984 onwards. But in the terms of the settlement, so mutually agreed and accepted, the words are that it is agreed that the services of all employees, wherever in Pakistan, who are on the roll of the mill shall be treated as terminated, and then follows the commitment of the payment of salary, in the manner the settlement directs to all the employees. In other words, the clause‑4 is further there to extend the real intention what the employer binds himself to be bound by the terms of settlement which is worded more comprehensively. The words are "It is agreed that since the employer is not in position to make payment of the legal dues of all the employees at one time, the payment of the legal dues shall be made to the employees in the mill at the rate of one batch commencing from January, 1985." If the clause‑4 refers of the document of settlement and speaks of the employees, the word employee is of comprehensive sense, to cover every category of personnel, whether he be superviser or any other worker, in the legal context, despite the contention raised that applicant is superviser , hardly has any force from the document itself.

6. As the court has taken the view of the applicability of section 51, the contention of Mr. Mahmood Ghani, if raised that the determination of the status of workman is also the basic question under this provision of the Ordinance, before the benefit claimed of computation in terms of money.

7. The court has also examined its efficacy of the proviso and finds in its view that section 51 IRO has limited scope to the extent of the execution process, for the recovery of a claim or money due to the workman. But whether he is a workman, the applicant, who claims to be workman for the purpose of the recovery of that claim or benefit in the case of uncertainty of the status has first to resort for the declaration of his right or status through remedy a/s 25‑A IRO unless the settlement or the decision or the award as the words used in the provision is clear to the effect that he is a workman to directly proceed for the execution of the claim particularly under subsection (2). In the opinion of the Labour Court, section 51(1) as the court understands proviso. If the claim of money i's clear, unambiguous, under settlement, award or decision of the court, any person who is entitled even move the court for his recovery. But subsection (2) applies in the case of workman who receives benefit under settlement, decision, award which can be computed. The amount determined and recovered. The distinction appears to be that in subsection (1), emphasis is made on the clause regarding claim of money and in subsection (2), the emphasis is made what the benefit the workman is receiving which can be computed. Likewise in subsection (1) if the words are that any person entitled to money can move the Labour Court. The word any person includes those who are governed by the Ordinance and can also include workers or workmen as well. But in subsection (2), regarding benefit the exception is created in the case of workmen also. The distinction appears to be clear that there are claims which are clear' of the recovery of money. There are benefits, if accrued under settlement, award or decision, if computed in terms of money can be determined received or recovered as provided in subsection (1). The reference of section 51 further has also come in case of Ghulam Mustafa v. Fifth Sind Labour Court where my lord, the Honourable Judge of the High Court has referred both subsections (1) and (2) and also referred the authoritative decisions of 1985 Supreme Court 1882 ( Dilkusha Enterprise v. Abdul Rasheed). Another case was referred of the honourable Division Bench, decision in the Karachi Club case. Reference was also made to Supreme Court Monthly Review 1330 and also further case of 1985 Supreme Court Monthly Review page 82 and 1987 P L C 650 and finally the case of Seigfrid . Becon v. Punjab Labour Appellate Tribunal, P L J 1980 Lahore.

8. Regarding evidence on merits, attempt has been made to show that Mr. Arshad Ali was superviser . He was given the duty chart to take work from the workmen R/1, when the witness of the respondent confronted with the cross questioning, the witness has also admitted that the trade union had submitted the list of employees on the directions of the Labour Court for holding of election, to which membership of the workmen Mr. Arshad Ali's name is also found. This Annexure‑2 if it is a document of considerable confidence, the court has examined its note ability of its contents and found that the name of Mr. Arshad Ali in the list of superviser is not conspicuously there. But what has not impressed the court regarding, what Mr. Arshad Ali has said so, with emphasis that he was a workman, his own admission is more of moral weight that he himself has acknowledged that he is a superviser . Therefore any list of the workmen submitted before the court was prior of the time and not of the relevant period for the enforceability of the settlement to cover the category of employees. So no further interpretation, appear to be to resolve if the admission by the concerned employee is clear itself without any reservation. At this stage another difficulty arises that Mr. Arshad Ali Khan has made the guarded statement that he was superviser and it should be seen from the appointment letter, what he wants to say in that connection. At the same time reconciling also with his own statement as well that he was promoted as superviser from 1‑6‑1967. He has produced no appointment letter though directed. Even then no improvement is possible for, he himself has admitted by unqualified admission that he is a superviser from 1‑6‑1967, obviously therefore at the relevant time of settlement.

9. However to be precise what the entitlement or the benefit he is to receive. By reference to clause‑3 it is provided that the salary of half the rate shall be paid for the seven months from June 1984 to December 1984

(b) Half salary from June, 1984+half salary from the month of July shall be paid before the end of January, 1985;

(c) Half salary from the month of August to Sept. 1984 will be paid before February, 1985.

(d) Half salary from the month of October, November and December shall be paid to all employees along with the legal dues as agreed under the agreement.

10. Clause‑2 makes clear that under clause‑A will not include employees who will be paid legal dues in January, 1985 or in February, 1985 for five months or seven months as the case is. Then, it is provided that the payments shall be made in the batches.

11. What is the claim of the applicant in the first instance. He has claimed 18,765 which includes gratuity of Rs. 26,077.50 for 19 years service.

12. Mr. Arshad Ali has not been clear what amount besides gratuity he has claimed. But in the evidence he has made the claim of the Notice pay of Lay Off. He has admitted that from July, 1983 there was no production. He has also admitted that he received Rs.19,300 out of his claim. He has shown his salary Rs.1372.50. What the respondent has said to rebut his claim in this regard. He has said that he is entitled to salary at Rs.1372.50 at 50$ from June 1984 to December, 1984 (4803.75), Notice pay 1372.50, Ex‑ gratia 13, 511.69, Rs. 19,300 already recovered.

13. Respondent has also admitted this position that gratuity is paid to the workers who are employed at the rate of one month's salary. Respondent has also admitted that he has 19 years service to his credit. He has also admitted that the amount paid does not include the gratuity. Books of Accounts are not produced by the employer.

14. Much controversy, has been raised on this question that he ceases to be worker and no more aggrieved. He is not entitled to gratuity, for, there is contribution also as provident fund.

15. The entire recital of the settlement, indeed speaks of the commitment of salary for the payment on the closure of the factory and the date shown of the termination of the job. Clause‑4 of the same settlement, has made much more sense by making this commitment that they will be paid all legal dues by this qualification, that as the employer is not in position to pay the legal dues, it will pay, in the batches.

16. This phraseology, in the document, conveys sense for two reasons. Firstly, employees will be paid salaries and at the same time, the word used is of legal dues. Whether these are separable. If the termination was not due to misconduct and there was no other restrictive clause, that, besides the pure salary, nothing will be paid, the position would have been more different. If the gratuity is the right and the incidental right to go with the job or on consequent ional termination, it is a debt. Unless the document of settlement, by its express recital, has not restricted its application by mutual concurrence, it is a right or a benefit. It cannot be taken away to the disadvantage what is guaranteed in sections 3 & 4 of the Standing Orders Ordinance, in other words which is granted by statutes, securing the gaurantees .

17. Similarly if it is the proviso added which reads in subsection (6) of section 12 of the Standing Orders Ordinance that if the employer has established a Provident Fund to which the workman is contributor and the contribution of the employer to which is not less than the contribution made by the workman, no such gratuity shall be payable for the period during which such Provident Fund has been in existence‑‑‑.

18. It will also be seen that the respondent has not shown any deduction by producing the Books of Accounts. Similarly there is no provision of ex gratia payment in the document of settlement.

19. Therefore the claim of gratuity is the debt payable on the service of 19 years and 8 months upto the date of the termination of job, that is 1st January, 1985. This will be calculated on the basis of the emoluments of Rs.1372.50 including the salary outstanding for 7 months to December, 1984.

20. This is prominently made clear that no notice pay will be payable by virtue of the concession given by concurrence, in the settlement nor the language of the settlement speaks of the notice pay except the salary and the gratuity as consequence on the termination as a right, in the context of the legal dues in the sense applied for.

21. However to be made it clear respondent has paid Rs.19,300 which is the acknowledged position. The rest of the amount of gratuity on the basis of one month's salary, as given by the respondent will be calculated and paid.

22. Regarding over payment, clarification is needed firstly there is no tangible evidence produced by the employer to show G.P. Fund deduction, if he wants to take advantage. There is also no evidence to indicate over payment or any evidence has been brought forth to show that salary from June, 1984 to December, 1984 was cleared to be hit by the clause of the settlement.

23. However the Court is to add showing disapproval that the claim of Mr. Arshad Ali Khan, if has admitted that it was paid as 19,000 only and did not speak of Rs. 19,300 which is further acknowledged by him in the course of evidence, is the most depressing aspect of his qualitative evidence that the witnesses, having taken an oath did not discharge his responsibility by speaking truth before the Court of law. If for a moment, he feels, that what responsibility he had towards the Court of law, for his slightest mistake injustice would have occurred if he would not have acknowledged the receipt of the amount of 19,300 in the Court, so late. This would have created complication.

24. Similarly the amount of gratuity and the outstanding liability now, is a debt which should be cleared by the employer as early as possible, within 15 days under the intimation to the Court and to be deposited so that the Court pays the amount to the concerned Mr. Arshad Ali. The Court is also of the opinion, that sooner the better, the outstanding liability of the workman be cleared before the fall of next sun shine, after the Court's adjudication. The Court feels that every drop of the sweat which falls on the face of a man who works legitimately, it reflects of the honour and dignity on their face. But legitimacy is the prime consideration. The arguments of Mr. Jeelani and Mr. Mehmood Ghani form part of the proceedings.

25. Mr. Jeelani has also referred the decision of this Court but has not produced any other judicial precedents of the highest Court.

Application is allowed accordingly.

A. E. /997/Lb.S

Application partly allowed.