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Petitioner: MCB BANK LIMITED & others VS Respondent: GHULAM SARWAR UTTERO COMMISSIONER FOR WC& A and others
Court Name: Labour Court Judge(s): Ghulam Qadir Leghari Title:MCB BANK LIMITED & others vs GHULAM SARWAR UTTERO COMMISSIONER
FOR WC& A and others Case No.: Appeal Nos. 9 to 16 of 2011 Date of Judgment:2015-08-31 Reported As: PLJ 2016 Tr.C. (Labour) 68 Result: Appeals allowed Judgment ORDER ' By this singled order I proposed to disposed of above (8)-appeals filed by the appellant bank (Muslim Commercial Bank Ltd.) against the above named respondents arising out of the order 14.5.201 1 passed by the Commissioner Workmen's Compensation and Authority Under Payment of Wages Act, Hyderabad thereby allowed the above (8)- applications Bearing Nos. 24 to 27 of 2010 & 29 to 31 of 2010 and appellants have been directed to deposit the amount in different shape awarded in the each application before the learned Authority within 30th days which is given as under:-- Serial No, as Resps:Name of the Applicants as Respondents hereCase Numbers In the R&Ps Of AuthorityAppeal Numbers Before This CourtAwarded Amount By The Authority 2 Abdul Razzaque Khan S/o Ahmed Ali Khan24/2010 09/2011 Rs:6489527/- 3 Asghar Ali Unar S/o Kamaluddin Unar26/2010 10/2011 Rs:5968587/- 4 Anwar Hussain S/o Muhammad Ibrahim31/2010 11/2011 Rs:5027248/-
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5 Aftab Ahmed S/o Nawab Khan25/2010 12/2011 Rs:6090279/- 6 Akhtar Muhammad Shaikh S/o Ali Nawaz Shaikh30/2010 13/2011 Rs:8441227/- 7 Muhammad Sidiq Magsi S/o Haji Karimdad27/2010 14/2011 Rs:5788529/- 8 Muhammad Yaseen Atta S/o Qayamuddin Shaikh23/2010 15/2011 Rs:5154648/- Muhammad Urs Channa S/o Muhammad Usman29/2010 16/2011 Rs:8540822/- 2. Facts forming the back grounds of above (8)-appeals are that appellant bank under the Companies Ordinance 1984 and regulated in terms of Banking Companies Ordinance 1962. It has 1127 branches all over the country , these branches are independently established after prior approval from State Bank of Pakistan, each of these branches have their own Manager , own officers and members of staff and each of these branches are an establishment in itself. The branches the Respondents No, 2 to 9 were respectively posted prior to their retirement from service employed less than 20-workman, as such, provision of Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 was not applicable. 3.Appellant stated in the above (8)-appea ls that Respondents No, 2 to 9 were lastly employed as Officer holding Power of Attorney and not performing any manual or clerical work as their main or primary function, they were retired from service and subject to adjustment of loans and income tax and different dues were paid to them which they received in clearance of their dues. It is further stated that no provident fund contributory scheme existed in the bank in relation to officer grade-I, II or III prior to 01.01.2004. As a result of Circular dated 31.12.2003 effective from 01.01.2004 a contributory provident scheme was introduced, whereby the employee had an option to contribute 8.33% to 12.5% each month and bank contributed 8.333%, thus effective first payment in February 2004, the Respondents No, 2 to 9 were aware of the provident fund scheme which they have even otherwise signed. At no stage the said respondents had challenged this provident fund scheme or expressed their non- approval to be a member of provident fund scheme. It is further stated that since the new provident fund scheme was introduced as a Retirement Benefit, through aforementioned circular , the earlier pension and retirement benefit both of Which are not covered under the law, nor under any letter of employment of said Respondents No, 2 to 9 and nor any settlement were restricted. It was commuted as on 01.01.2004, in other words pension and retirement benefits over and above provident fund were not payable. Only provident fund including contribution of the employee and equal contribution of the bank was payable either on retirement or termination of service and pension and retirement benefit amount which including benevolent fund etc. Were to be paid as on 31.12.2003. It is further stated that after 1.1.2004 till the date of retirement of Respondents No, 2 to 9 they had not challenged the circular dated 31.12. 2003 before any Court of law, not only the above said respondents did not challenge this circular but they even received on their retirement a sum subject to adjustment of loans and income tax and withdrew the said amount from their account. It is also further stated that on 17.03 .2010 the Respondents No, 2 to 9 filed applications before the learned Authority (Respondent No, 1) challengin g circular and claiming that an amount by way pension to date, benevolent fund to date and retirement benefits to date although these all are outside the preview and ambit of the terms "wages" and also outside the ambit of section-15 of Payment of Wages
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Act. It is further stated that in the circular dated 31.12.2003 as Annexure-B increm ent of 10% were given, limit of house building finance, car finance and motor cycle finance were increased, limit of group life insurance and provident fund group insurance were enhanced and all these payments were replaced by commuted pension, gratuity and retirement benefit and in the alternative contributory provident fund scheme were introduced. Since these additional financial benefits were given to Respondents No, 2 to 9 by virtue of this circular dated 31.12.2003 and acceptable to Respondents No, 2 to 9, the said respondents neither challenged the circular in any Court but received all these additional payments made under this circular . It is only after their retirement that when entire payment were given to them, that they thereafter choose to challenge this payment by claiming pension up-to date of their retirement, benevolent fund and medical up-to date of their retirement before the learned trial Court. 4The above named Respondents No, 2 to 9 filed their respective applications under the provision of Section 15 of the Payment of Wages Act, 1936 against the appellant bank to refund all their illegally deducted dues with the compensation. They have stated in their application that they were employed in the Muslim Commercial Bank Ltd. And they were appointed on different posts since long on monthly salary basis, as such, they claiming that their legal dues were unlawfully deducted which they have estimated total amount in dif ferent shapes. 5.On service of notice to Muslim Commercial Bank Ltd. & others issued by the learned trial Court, had filed their legal objections/written reply claiming that the allegations and claims made by the Respondents No, 2 to 9 in their applications were denied being false and fabricated. It is further contended by the appellant bank that the above applications of Respondents No, 2 to 9 were not maintainable; that neither there was delay in the payment of wages, nor of illegal deduction was made by the respondents and that amount claimed do not fall within the ambit of the term "wages" that the Respondents No, 2 to 9 having received payments on retirement cannot be deemed to be an aggrieved person, being no more in employment. 6.Appellant being aggrieved and dissatisfied with the impugned decision, filed the instant appeals on the ground that power of the Authority under Payment of Wages Act, 1936 being judicial in nature can only be exercised by a Tribunal establishment under a specific provision of the Constitution and or by the Court which is subordinate to High Court under Article 203 of the Constitution. Respondent No, 1 appointed as an Commissioner for Workmen's Compensation & Authority under Payment of Wages Act not having either of these attributes as non-competent to decide the matter so instituted before him by the Respondent No, 2 to 9. It is further alleged that the entire appointment of Respondent No, 1 is illegal and he is functioning as quorum non-ju dice. Any order passed by such person is not sustainable and Court of law is liable to struck down as being violative of law and the Constitution of country . It is further alleged that there is no unfettered exercise of public power by respondent to appoint any one or every one as Commissioner for Workmen's Compensation and Authority under Payment of Wages Act, 1936 for such period as he may deem fit arbitrarily without consultation of Chief Justice of High Court, such public powers are to be exercised for public purpose and any direction given to Respondent No, 1 by the outdated Labour Legislation after the 18th Amendment have to be construed strictly . It is further alleged that any provision made either in the Workmen Compensation Act 1923 or Payment of Wages Act, 1936 which will not be in conformity to the Constitution of Pakistan 1973 are to be "read down" to the extent; that since Respondent No, 1 is neither a Judge of Civil Court nor a Stipendiary Magistrate, he cannot be expected to be capable to decide the dispute of judicial nature which come before him under the law. It is also further alleged by the appellant that the respondents has not specified whether the claim is of delayed wages or unauthorized deductions, the authority under Payment of Wages Act was not allowed in terms of Section 15 to determine the issues involving circulars it is legalities, replacement of one financial benefit with another , all of which is outside the ambit of Section 15 of Payment of Wages Act, 1936. It is further alleged that the provision of Section 15(3) proviso (c) has not been complied with before filing of the application before the Authority under Payment of Wages Act, 1936 and the Honourable High Court in C.P No, 2162/201 1 has passed an order on 16.06.201 1 accepting bank furnishing guarantee and the Authority has issued certificate of filing appeal, such bank guarantee has been furnished to the Nazir of High Court on 18.06.201 1, as such, it is prayed that this Honourable Court after hearing both the parties may be pleased to set-aside the impugned order .
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7Both parties filed their, affidavit-in-evidence in the trial Court and were cross -examined by either side. The Respondent No, 8 was cross-examined in Case No, 23/2010 by the respondents/appellants counsel and his cross was adopted in the other (7)-cases Bearing Nos. 24 to 27 of 20/0 & 29 to 31 of 2010, while the witness of respondents/ appellants, namely Wazir Hussain Memon was also cross-examined in Case No, 23/2010 and same cross was also adopted in all above said cases. The learned trial Court framed seven (7)-issues and allowed the application of the applicants (as Respondents No, 2 to 9 in the instant appeal) with direction to the appellant bank to deposit the awarded amount in question within 30-days. 8.On 14.04.2012 this Court had passed an order in diary sheet thereby appellant bank had filed Constitutional Petition before the Honourable High Court of Sindh @ Karachi in C.P No, 2162/201 1 in which the impugned judgment of Respondent No, 1 has been assailed to be without jurisdiction as the Authority appointed under the statute of Payment of Wages Act, 1936 is not competent to adjudicate the matter of service dues. As the issue has certainly been subjudiced before the Honourable Constitutional forum therefore with the consent of parties the above listed appeals u/S. 17 Payment of Wages Act were adjourned sine-die with direction to both the sides as and when petition is decided by Honourable High Court of Sindh Karachi, the order be placed before this Court with application for hearing of appeals on merits alongwith all listed applications. Thereafter on 27.06.2015 Labour Representative for Respondents No, 2 to 9 has submitted application for proceedings the above appeals in the light of order dated 28.05.2015 passed by the Honourable High Court of Sindh wherein the petition was disposed of and directions were given to this Court to decide the appeal within two months excluding summer vacation and submit compliance report to the Honourable Court of Sindh through MIT -II. 9. From the pleading of the parties, following points are settled for determination:-- (1) Whether the impugned order dated 14.05.201 1 passed by the trial is illegal? (2) What should order be? 10I have heard learned counsel for appellants, Labour Representative for Respond ents No, 2 to 9 and perused the record as well as order impugned in the instant appeal. My findings on above points are as under:-- POINT NO.1 In Affirmative. POINT NO.2 Appeals of the appellants are allowed. REASON POINT NO. 1 11. Mr. Syed Wizarat Hussain Zaidi, advocate for appellant argued that the appellant are aggrieved and dissatisfied with the decision dated 14.05.201 1 in the applications Bearing Nos. 24 to 31 of 2010 under Section 15 of the Payment of Wages Act, 1936 passed by learned trial Court (Respondent No, 1) whereby the appellant have been directed to deposit an amount in different shape, as such appellant has filed instant appeals against Respondent Nos. 1 to 9. He has further argued that this Court may take notice that neither in the application s u/S. 15 of Payment of Wages Act, 1936 before the learned trial Court nor in their pre-typed affidavit-in-evidence Respondents No, 2 to 9 have mentioned the number of employees in the branch from where each applicants/Respondents No, 2 to 9 were retired. The above said Respondents No, 2 to 9 were lastly employed as an officer holding power of attorney and not performing any manual or clerical work as their main and primary function. There is no any detail or documentary proof in the applications so also in the affidavit-in-evidence of Respondents No, 2 to 9 to show that they were doing any manual or clerical work. He has further argued that the terms of employment of Respondent No, 2 to 9 were contractual, they were officer of the bank and were performing supervisory nature of work as their main and primary function, they have never placed on record any letter or document issued by the bank to show that bank have accepted them as worker . This was the principal laid down by the Division Bench of the Honourable High Court of Sindh in the case reported in 2002-PLC-1 @ 9. He has further argued that admitted facts are that Respondent No, 2 to 9 retired from servic e and subject to adjustment of loans and income tax amount of different shape were paid to them which they received in clearance of their dues. It is not out of context to point out that at the time of receipt of the payment, the said respondents have nowhere claimed that their payment were short or that they reserves the right to claim for further payments before the Authority . He has further argued that in the appellant bank there was no provident fund contributory scheme in relation to officers Grade-I, II or III or prior to
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1.1.2004, earlier MCB Bank Ltd. Formally known as Muslim Commercial Bank was a nationalized bank, a provision of law applicable to Government employee were applicable, however in the reply statement of the bank Gazette of Pakistan Annexure-A dated 14.04.1991 will show that in terms of banks (Nationalization) Act, 1974 the Federal Government denationalized MOB and thereafter it became pure and simple a privatized commercial bank. The terms and conditions of service in relation to employees prior to privatization were regulated in terms of Wages Board for bank and financial institution in terms of Section 38-A of IRO-1969 and for officers in relation to pay commission. However , this provision of law also was repealed under IRO-1969 and more so once the bank was privatized, it was no longer within the ambit of Wage Board which even otherwise ceased to exist in relation to workmen. He has further argued that since the provident fund scheme was introduced by virtue of this circular as retirement benefit, the earlier pension and retirement benefit issued under earlier circulars and not covered under any law, settlement or award nor covered under any letter of appointment was commuted by way of restructuring as from 01.01.2004. In other words pension and retirement benefits over and above provident fund scheme were not payable. The pension amount was only payable for the period up-to 31.12.2003 and not thereafter and from 01.01.2004 provident fund contributory scheme was introduced with contribution by the officers and equal amount paid by the bank which was payable on the eve of retirement and or termination from service of the officers of the bank. He has further argued that Respondents No, 2 to 9 submitted their voluntarily retirement and even received their legal dues on retirement, thereafter with mala fide intention they filed application before the Respondent No, 1 (learned Authority) and they not only challenged the said circular dated 30.12.2003 but even claimed that benefits once given to the said respondents earlier could not be withdrawn by any subsequent circular and it acquired force of law. He has further argued that the applications were filed in the cases of the Respondents No, 2 to 9 before the learned trial Court, appellants in their legal objections and reply statement had challenged the jurisdiction and the Authority of Respondent No, 1 and pointed out that Respondent No, 2 to 9 have already received their full and final dues being an officer and not a workman, that the claim made by them was not maintainable under the Payment of Wages Act. He has further argued that it was pointed out in the reply statement that the Respondents No, 2 to 9 themselves were applied for retirement and thereafter cleared their dues, both retirement letter and settlement of full and final dues were attached with the reply statement. He has further argued that learned trial Court had framed seven issues, it reveals that Authority even took upon itself to determine if the settlement dues were in accordance with the rules and regulations, if circulars issued by the bank were proper and is more important as to whether bank had power to withdraw or replace facilities earlier given to bank employee etc. And if benefits are protected under Standing Orders Ordinance, 1968, whether these issues would be resolved and decided within the ambit of the Authority u/S. 15 of the Payment of Wages Act. He has further argued that from the admissions of the respondents in their cross-examination that they were aware about the circular dated 30.12.2003, availed financial benefits under the terms of said circular , contributed to provident fund scheme introduced under the said circular accepting equal contribution on the part of the management, did not challenge the said circular whilst in employment for all these years, received increased salary etc. Under the terms of said circular and having done so he has now instituted belatedly time barred application before the authority and prior to 01.01.2004 there was no provident fund scheme. This was an additional benefit under the said circular . In addition to earlier pension retirement benefit were not under any law, nor under any letter of appointment but was being given by the bank voluntarily . He has further argued that in order to rationalize, pension and retirement benefits other than provident fund including benevolent fund was commuted and was paid only up to 31.12.2003 and from 01.01.2004 provident fund scheme was introduced. He has further argued that respondents not only applied for being member of provident fund scheme issued under the circular but voluntarily all these years agreed to deduction and equal amount was contributed by the bank and all these payments were received by them and as stated even received other financial increase given under the circular . He has also further argued that it is not open for the Respondents No, 2 to 9 to either apply for reformation or rescission of the circular and the party is bound by the terms of that circular and even otherwise cannot challenge it before the Authority . He has further argued that even in the applications which were filed by the respondents before the learned trial Court, they themselves claimed their status as Officer Grade and they also admitted in their cross-examination that they have claimed themselves as 0G-I to 0G-III, on whom onus lay that
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they are workman although working as officer grade did not file any documentary evidence in support of their said claim that they were workman. He has further argued that learned Authority has not touched as to how and what was the basis of claim of awarded amount been made by the respondents, no reason or ground whatsoever has been given by the learned trial Court as to the basis for arriving at a conclusion that aforementioned payment is to be made and deposited by the bank with the Authority and for payment to the respondents. He has further argued that disputed Notification dated 31.12.2003 was issued by the Human Resources Division and Labour Representative has not put any question to the witness of MCB Bank during cross- examination regarding issuance of the above said notification. He has further argued that respondents have filed application u/S. 15(2) before the learned trial Court but they had not made party to the HRD whose circular was challenged before the Court as the applicants/respondents had not issued disputed circular . He has further argued that the above appeals of the appellant bank be allowed, impugned order passed by the learned Authority be set-asided and the directions be given to the learned Authority to discharge the certificate for deposit of bank guarantee. In this regard learned counsel for appellants has filed number of citations in support of his version. 12. As against these arguments, Labour Representative for Respondent No, 2 to 9 contended that the above Respondent No, 2 to 9 were permanent workman/employee of the appellant bank being national establishment and have retired the above said respondents from their services, while appellant bank have deducted the legal wages of respondents and have paid less payment, as such, applicants/ Respondents No, 2 to 9 had filed applications before the Respondent No, 1 (learned Authority) for recovery of their deducted wages and other dues, but instead of depositing awarded amount before this Court, appellant bank has filed bank guarantee according to the order of Honourable High Court of Sindh in which it is clearly mentioned that "Once the valid Bank Guarantee to the satisfaction of the Nazir of this Court in the total sum of above referred amount." He has further argued that. Nazir had not issued any order which shows that the bank guarantee was accepted, while on 08.07.201 1 Nazir had referred the objections raised by above respondents. He has further argued that the Honourable High Court of Sindh had passed order whereby any employee can approached the Authority regarding gratuity , group insurance, GP fund, pension and benevolent fund. He placed his reliance on case reported in 2011-PLC (CS) 276 & 2011- PLC-300. He has further argued that appellant bank had filed written reply and denied to pay the wages and other legal dues of the above said retired employees and also raised objection that if delay in payment of legal wages and other dues to the worker then worke r can file application before the learned Authority and applications for the wages and other dues are not maintainable, thereafter learned trial Court had considered above contentions of the parties and after recording the evidence of both parties, learned trial Court had passed impugned order dated 14.05.201 1 and accepted the claim of respondents on which appellant bank had filed C.P Bearing No, D-2162/201 1 before the Honourable High Court of Sindh (which was disposed of vide order dated 28.05.2015) thereafter filed instant appeals before this Court. He has further argued that the witness of appellant bank, namely , Wazir Hussain Memon has admitted in his cross-examination that appellant bank is a private establishment and labour laws are applicable upon him. He also admitted that pension rules are also applicable upon the appellants bank as per circular dated 14.07.1986 issued by the Government of Pakistan and the respondents claim, were right according to the above said circular . He has further argued that the plea raised in the above appeals were not same taken in the written reply filed by the appellant bank in the trial Court, as such, they could not raise new plea/ ground and the available grounds mentioned in the appeals are made to misguide this Court. He has further argued that witness of appellant bank has stated in his cross-examination in the trial Court that above respondents were performing as clerical work in the appellant bank as such, respondents are workman under the law and appellant had stated in the above appeals in ground "H" is total wrong as the learned trial Court have authority to decide the application regarding the deducted wages and other dues. The above said witness…
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