2012 P L C 161
[Balochistan Labour Tribunal]
Before Abdul Qadir Mengal, Member
BALOCHISTAN ENGINEERING WORKS LIMITED through Deputy Manager and
others
Versus
JALAL KHAN and others
Labour Appeals Nos.46 and 50 of 2008, decided on 10th November, 2010.
Industrial Relations Ordinance (XCI of 2002) ---
----Ss. 46, 47(3) & 48 ---Industrial and Commercial Employment (Standing Orders)
Ordinance (VI of 1968), S.O.12 ---Termination of service ---Grievance petition ---Services of
employee having been terminated by the employer on attaining age of 55 ye ars, employee
filed grievance petition against order of his termination ---Said petition was dismissed by the
Labour Court ---Validity ---According to terms of appointment which had been accepted by
the employee, employee would be retired on attaining age of 55 years ---No doubt, that there
was no provision in Industrial and Commercial Employment (Standing Orders) Ordinance,
1968 prescribing any period for retirement which could be agitated as a right, but as age of
retirement of 55 years fixed at the time of c ontract of employment had been accepted and
acted upon by the employee, he could not change his position and challenge the same ---
Services of the employee having been terminated according to terms of agreement of
employment which were accepted by the empl oyee, grievance petition by the employee was
rightly dismissed by the Labour Court ---In absence of any illegality, impropriety in judgment
of the Labour Court, same could not be interfered with in appeal.
2005 PLC 219; 1999 NLR 46; 2000 PLC 58 and PLD 1 977 Kar. 168 ref.
Date of hearing: 10th November, 2010.
JUDGMENT
ABDUL QADIR MENGAL (MEMBER). --- Through this common judgment I have
intended to dispose of above two appeals, filed against the order of learned District and
Sessions Judge/Presiding O fficer IIIrd Labour Court Balochistan dated 12 -11-2008, as the
facts and law involved in the both appeals are same and common.
2. The facts of the appeals are that applicant Jalal Khan son of Bhawal Khan through
application under section 46 of I.R.O. rea d with section 12(3) Standing Order, 1968
challenged his termination or retirement from service on 29 -11-2004, stating that, the reasons
as mentioned in the letter of respondent for retirement are not correct. Actually applicant
serving full devotion and w ith good health. Neither he attended the age of 55 years nor he
could be removed after attaining the age of 55 years. Applicant prayed for his re -instatement
in service with full back benefits.
3. After serving of notice, respondent filed rejoinder where in that raised some legal
objections about maintainability of the application and on merits, while opposing the
application respondent stated that applicant was appointed on 1 -11-1991 on the terms of
clause 14 of the appointment letter. It was held that he would be retired in age of 55 years.
Applicant accepted the said terms and condition of appointment. So at this stage, he could no
go beyond the same. Therefore applicant's application having no force same is liable to be
dismissed.
4. Initially on co nclusion of the case applicant's case was dismissed or rejected however
on appeal before the Hon'ble High Court, case was remanded back to dispose of the matter
affording both the parties opportunity of hearing including evidence. And after remand, c ase
was concluded, where after present impugned order dated 12 -11-2008 was passed
against which both side have come through present appeals.
5. The both side have filed their written arguments. Mr. Azam Zarkoon Advocate present for
applic ant being appellant in Labour Appeal No.50 of 2008 while in cross Appeal No.46 of
2008 representative of company Mr. Zahid Aslam present and he presented the written
arguments on behalf of company from the side of the counsel and requested that on the basi s
of the written arguments matter may kindly be dispose of.
6. Mr. Azam Zarkoon Advocate argued that the company had no right to retire a worker, who
being fit to perform his duties as there is nothing in Standing Order 1968 for prescribing any
particula r age limit. Again learned counsel stressed that applicant would be in age of 54 years
and could serve in the company for 60 years, as same is prevailing in many factories or
companies. The representative of company while disputing the contention stated th at clause
14 of the appointment letter dated 1 -11-1991 shows that applicant would be retired in age of
55 years which he has accepted along with other employees of the company, so now he can
not challenge the same on reaching the age of 55 years. The repre sentative of the company
further stated that though the real age of the applicant has been mentioned in his appointment
letter. However, the court has given him 1 year extra on the basis of medical certificate. The
said concession period already has extend ed to applicant. Therefore, applicants appeal is
liable to be dismissed and company version, through this appeal may kindly be accepted.
7. Considering the contentions of both side it appears that, at present bone of contention or
point in dispute betwee n the parties is that, whether applicant on basis of the clause 14 of his
appointment letter dated 1 -11-1991 is liable to be retired from service or he could serve more
until attending the age of 60 years.
8. After hearing both side I have no difficulty to concur with the finding of learned District
and Sessions Judge/Presiding Officer 3rd Labour Court Hub dated 12 -11-2008. The
authorities quoted by Mr. Azam Jan Zarkoon, counsel for appellant are not relevant to the
facts of the present case, as 2005 PLC page 219, and actually is about a case, between
Mazdoor Union Nilam Glass Industries and Management of Nilam Glass Industries Limited.
However on account of conciliatory basis a settlement was agreed between Mazdoor Union
and management and after some ti me agreement was made public in which management has
added a clause
When this fact came to the notice of the union, union went in to shock and this clause of
agreement was later on challenged by the C.B.A. before the court and the court held that no
contrary clause against the benefits of workers could be added, through an agreement which
could abridge the rights of the workers, it may be noted in that company the age limit was 60
years.
The second authority NLR 1999 page 46, in this case initially some workers were appointed
on contract basis and they served a considerable period, later on company retired them after
giving their full emolument or wages. But soon after that company again appointed them on
regular basis, through an agreement. In this case court held that no any agreement could
extract from workers to deprive them of their permanent position or worker, so this authority
also has no any relation to the facts of the case.
9. The respondent side argued that as in appointment letter the worke r has agreed the age of
retirement and after acceptance has signed the same, as such he could not go from that his
position.
10. No doubt that there is a no any provision in standing Orders Ordinance, 1968, by
prescribing any period for retirement which could be agitate as a right. While the terms and
conditions which have been accepted by appellant/applicant at the time of appointment does
not violate any provision of Standing Orders Ordinance 1968 which could give the right to
appellant to challenge the same.
In this respect, I have relied on 2000 PLC 58 which read as follows: ---
Industrial Relations Ordinance (XXIII of 1999)
Ss. 25 -A & 37(3) --- Retirement of employ attaining age of 55 years ---Employee who was
retired from service on attaining age of fifty -five years, challenged order of retirement
alleging that since no age limit had been prescribed by any law for the time being in force
concerning industrial establishment and that employee was not suffering from any physical
disability, as retirem ent was mala fide and amounted to illegal termination of his service ....
Letter of Appointment of employee contained a stipulation to the effect that employee would
be retired from service of employer on attaining age of fifty -five years ---Age of retireme nt as
fixed at the time of contract of employment, having been accepted by employee, and acted
upon by him, employee was rightly released from service on attaining specified age specially
when employee remained unable to show that any age limit for retirem ent of worker had been
prescribed under Industrial Relation Ordinance, 1969 or under any other law for the time
being in force.
The relevant portion of the same also reads as follows: --
Admittedly the appellant was employed, as a permanent worker in the respondent's
establishment vide order of appointment, dated 1 -9-1990, which contains stipulation to the
effect that he shall be retired from the service of respondent/company on attaining the age of
55 years and vide letter, dated 1 -4-1998 issued on behalf of respondent's establishment he has
been retired at the age of superannuation i.e. 55 years on 30 -4-1998 in terms of specified
condition about the age of retirement contained in the appointment letter, accordingly, the
grievance notice has been replied i n the terms. Both the parties have herein fore noted
admitted the document placed on record and their respective pleadings who accordingly
expressed that in order to set at the controversy about the age limit of the appellant for the
purpose of retirement, no evidence is required to be led by any of the party in the
proceedings, thus the learned Labour Court appropriately struck the point of determination
who reproduced hereinabove. The learned counsel for the appellant remained unable to show
that any age limit for retirement of a worker has been prescribed under IRO, 1969, or under
any other law for the time being in force to which a worker of the industry concerned is
subject hence in my considered view the age of retirement of a worker will be governed by a
settlement or by a contract of employment or by the resolution of an industrial Establishment
made applicable at the time of the appointment of a worker.
I have also relied on PLD 1977 Karachi (168) the relevant portion of the authority rea ds as
follows: ---
I.R.O. (XXIII of 1969).
S. 25 -A---Retirement ---Mala fide ---Workman's dismissal held illegal in Labour Court and
workman ordered to be re -instated ---Employer taking back workman but sending him on
special leave with full sal ary. Meanwhile employer ordering retirement of workman at
age of superannuation (55 years) according to long -standing practice ---Employer, in ordering
such retirement, held, cannot be said to have acted in mala fide manner ---Unlimited service
not guaran teed by any law, award or agreement nor a commercial or industrial concern under
legal obligation to retain an employee beyond age of 55 years ---Workman failing to show if
any guaranteed or secured right was infringed by virtue of order of his retirement ---
Application under section 25 -A, held, not maintainable in circumstances of case -West
Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of
1968), S.O.12.
10. So being it means that the age of retirement fixed at the time of contract of employment
and having been accepted by employee and acted upon him, then later -on, he could not
change his position. So being the Appeal No.50 of 2008 filed by applicant haying no force
same is dismissed, so as appeal filed by the respondent company vide Appeal No.46 of 2008
also fails as prima facie, the order of learned District and Sessions Judge/Presiding Officer
3rd Labour Court, Hub dated 12 -11-2008, having no any illegality impropriety. Therefore,
same requires no any interfe rence. Thus both appeals are dismissed with no order as to costs.
H.B.T./1/BLT Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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