Entitlement of Workman for Gratuity and Provident Fund

Entitlement of Workman for Gratuity and Provident Fund Case Laws Concurrent Findings Constitutional Law Coram non judice Employment & Incentives Gratuity Knowledge - Constitutional Law Labour Court Lahore High Court Litigation & Arbitration Provident Fund Solutions - Constitutional Law Workman Mr. Justice Shujaat Ali Khan in his judgment has decided the issue regarding entitlement of workman for gratuity and provident fund in Writ Petition No. 10958 of 2010.

1. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have challenged legality of judgments dated 02.04.2009 and 05.04.2010 passed by Punjab Labour Court No.9, Multan (hereinafter to be referred as the Labour Court), and the Punjab Labour Appellate Tribunal, Lahore (respondent No.1), respectively.

2. Pithily, respondent No.2 joined the Habib Bank Ltd. as Cashier on 01.09.1968 and was later on promoted as Officer Grade-III in the year 1978 and then Officer Grade-I in the year 1994. On 22.04.2006, he made a written request for his retirement which was accepted and he was retired from service w.e.f. 20.06.2006. As a result all the pensionary benefits were paid to him. He, being dissatisfied with the calculation of his pensionary benefits and non-encashment of his unveiled earned leaves, filed a Grievance Petition under section 46 of the Industrial Relations Ordinance, 2002 (IRO 2002), for determination of his gratuity according to last gross pay and encashment of unavailed earned leaves of 880 days which was partially allowed by the Labour Court, vide judgment dated 02.04.2009, whereby he was held entitled for gratuity at the rate of last gross pay whereas his prayer for leave encashment was turned down. Aggrieved by judgment dated 02.04.2009 both the parties filed independent appeals before respondent No.1 which were dismissed through consolidated judgment dated 05.04.2010; hence this petition.

3. Learned counsel for the petitioners, while opening his arguments, submits that since respondent No.2 had been serving the Bank as Officer Grade-I, he did not fall within the category of a workman, thus, his Grievance Petition before Labour Court was not maintainable; that if for the sake of arguments it is presumed that respondent No.2 was a workman, even then, after his retirement he could not agitate his grievance before the Labour Court; that all pensionary benefits were paid to respondent No.2 as per policy of the Bank, thus, he had no cause of action to approach the Labour Court; that according to section 2(xxxi) of Punjab Industrial Relations Act, 2010 (PIRA 2010), a retired person does not fall within the definition of a workman; that according to section 33 of PIRA 2010 a workman can only approach the Labour Court where any penal action was taken against him as a result of some industrial dispute; that respondent No.2 could approach the Authority under the Payment of Wages Act, 1936 (the Act, 1936) for gratuity while pressing into service the provisions of section 13 of the Act, 1936, as according to section 22 of the Act 1936 in the matters where the Authority has exclusive jurisdiction proceedings before any other forum are debarred; that as respondent No.2 was paid Provident Fund to which the Bank was also a contributory he was not entitled for grant of pension as a matter of right in view of the bar contained under section 12(6) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (the Ordinance 1968) and that since respondent No.2 has received pension in addition to the Provident Fund, he had no cheeks to agitate the matter before the Labour Court.

In support of his contentions, learned counsel has relied upon the cases reported as Dilshad Khan Lodhi v. Allied Bank of Pakistan and others (2008 SCMR 1530), Samad Rubber Works (Pvt.) Ltd. through M.D. V. Authority under Payment of Wages Act, 1936 and 2 others (2014 PLC 308), M/s Coca Cola Beverage Pakistan Ltd. through Authorized Officer/Industrial Relations Manager v. Registrar Trade Unions Sindh and 3 others (2010 PLC 48), Muhammad Ashraf v. Pakistan Railways and others (2007 PLC 240), Taj Din v. Pioneer Steel Mills Ltd. (1984 PLC 403) and Abdus Salam Khan v. Pakistan Railways through Division Superintendent, Lahore (1984 PLC 572).

4. On the other hand, learned counsel representing respondent No.2, while defending the impugned judgments, states that as respondent No.2 was performing duties of manual/clerical nature, he fell within the definition of a workman, thus, proceedings before the Labour Court were competent; that despite his promotion as Officer Grade-I, respondent No.2 remained posted as Cashier in HBL Hussain Agahi Branch, Multan, with only interval of days, therefore, the petitioners cannot claim that respondent No.2 was not performing duties of manual/clerical nature; that to determine status of a person as to whether he is a workman or not the foremost proof is the nature of duties being performed by him; that no pension is being received by respondent No.2, therefore, plea of the Bank that he could not claim gratuity in view of the bar contained under section 12(6) of the Ordinance, 1968, is worthless and that the judgments of both the courts below, being in line with the law on the subject, cannot be interfered with by this Court in exercise of its Constitutional jurisdiction vested under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

5. The learned Additional Advocate General has supported the version taken by the petitioners with the additional submission that since respondent No.2 does not fall within the definition of a workman neither provisions of the IRO 2002 nor those of the Ordinance 1968 were applicable in his case. I have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with this petition as well as the case law cited at the bar.

6. While scanning the record, I have observed that respondent No.2 filed Grievance Petition before the Labour Court claiming Gratuity at the rate of last 30 days gross pay in addition to encashment of unavailed earned leaves. His claim to the extent of gratuity was accepted by both the fora below whereas that to the extent of leave encashment was dismissed. As respondent No.2 has not agitated the matter regarding dismissal of his claim for leave encashment, the controversy in the present petition is only confined to the rate of gratuity.

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