Utility Store Corporation of Pakistan Pvt Ltd etc Vs Muhammad Arif etc

JADGMENT SHEET

IN THE PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(ludicial Department) L.C. R No. 36-4/2024

Utility Stores Corporation of Pakistan Pvt Ltd and others.

(Petitioner/s) yS Muhammad Arif & others.

(Respondents)

Present: Mr. Jalal-ud-Din, Advocate. for petitioners Respondents are not represented being a motion case.

Date of hearing: 18.11.2024

JUDGMENT

MUHAMMAD IJAZ KHAN. J.- Throu gh this

single judgement, this Court shall decide this (LCR No. 36-412024) as well as following connected petitions as in all these petitions a common questions of law and facts are involved.

l. LCR No.37-Al2024

(Utilits, Stores Corporalion ol Pakistan (PvL) Lld and othets versus Sadiq Hussain & others).

fr ) LCR No.38-A/2024

(Iltilit!' Storcs Corporstion oJ Pakistan (PvL) Ltd and otherc versus Muhtmmad Jsved Akhtu & olhers).

3.LCR No.39-A/2024

(Lttility Stores Corporation of Pahistan (Pvl.) Ltd and otherc versus Habib llllah Khqn lhrcugh ils legal heirs & olhers), Tahir Saleem (S.8.) Hon'ble Mr. Justice Muhammed Iiaz Khao

4.LCR No.40-An024

(Lltility Stores Corporatlon of PakhtM (Pvl.) Ltd and othe$ venus Baidar Khan & olhers).

5.LCR No.41-Al2024

(Utility Stores corporation ol Pakistan (Pv.) Ltd and othen versus llajid All Khan & others).

6.LCR No.42-N2024

(Utility Storus Corporation of Pa*istan (Pvt,) Ltd and others versus Rashld Mehmood thtough its legal helrc & olhers).

LCR No,43-A,/2024

(ltility Stores Corporation of PaListan (N.) Lld and olhets versus Muhammad Saddique & otherc).

8.LCR No.44-Al2024

(Utility Stores Cotporstion of Pakistan (Pvt,) Lld and others versus Mukhliar Muhammad Khan & olhe$)'

9.LCR No.45-A,/2024

(Utility Stores Corporalion of Ptkktan (Pvt.) Lld and olhets vercus Rehamdad & olhers).

2 Precisely, the facts leading to the filing of the instant petition(s) are *Iat respondents in all these petitions had filed their separate claims under section 15 (2) of The Khyber Pakhtunkhwa

Payment of Wages Act,20l3 (hereinafter is to be referred as The Act of 2013) for the recovery of their legal dues i.e. gratuity which their claims were duly contested by the present petitioners, however, ultimately the same were allowed by the Authority established Under The Payment of Wages Act 2013 vide order & judgment of even dated 26.03.2024.

The aforesaid orders and judgments were then challenged by the petitioners/corporation through Tahir Saleem (S.B,) Hon'ble Mr. Justice Mubrmmqd lirz Kh.n

'I

separate appeals filed under section 17 of The Act of 2013 before the learned Labour Court, Haripur, however, their appeals were also dismissed vide consolidated impugned order and judgment dated 24.10.2024 which order & judgment has now been challenged before this Court by the petitioners through these Labour Revision Petitions (LCRs).

3.Arguments of leamed counsel for

petitioner were heard in considerable detail and the record perused with his able assistance.

!. It is an admitted fact that all the respondents/employees have served the petitioners' corporation for a considerable long time and by now on attaining the age of superannuation they have already been retired from their services. It is the case respondents/employees that the petitioners' corporation has not paid to them their legal dues i.e.

gratuity, therefore, they approached to the Authority established Under The Payment and Wages Act 2013 who after due contest has allowed ry

the same through one of the impugned order, whereby, the respondents/employees have been held as entitled for the 6laim amount along with one time compensation, thereafter, the petitioners approached to the Labour Court, however, the Tafiir Sale€m (S.B.) Hon'ble Mr. Justice Muhammad Ijaz Khan

appeal of petitioners has also been dismissed and thus now against these concurrent findings the petitioners have approached to this Labour Appellate Tribunal through these petitions by invoking its revisional jurisdiction.

5 The main objection of the leamed

counsel for the petitioners/corporation was that as per section 2 (xiv) of The Khyber Pakhtunkhwa Payment of Wages Act, 2013 "gratuity" does not fall within the "wages", therefore, the Authority established Under The Payment and Wages Act 2013 was not competent to entertain the claims of respondents/employees qua payment of their outstanding gratuity amount. The same being relevant is reproduced below;

Section 2 (xiv) "wages " means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contrdct of employment, express or implied, V were fuffilled, be payable, whether conditionally upon the regtlar attendance, good work or conduct or other behaviour of the person employed or otherwise, to a person employed in respect of his employment or of work done in such employment and includes Basic Pay and all statutory and non-statutory allowances, any bonus or other additional remuneration of the nature aforesaid which would be so payable and any sum payable to such person by reason of the Tahir Saleem (S,8.) Hor'ble Mr. Justice Mrhammad Ijaz Khan

termination of his employment, but does not include. -

(a)any contribution paid by the employer to any pension fund or provident fund;

(b)any traveling allowance or the value of traveling;

k) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or

(d)anv sra tuin oavable on discharse. (emphases supplied)

The plain reading of the aforesaid definition of "wages" would show that four categories of claims have been excluded from the wages in which amongst others gratuity has specifically been mentioned as not forming part of wages i.e. gratuity ble on dis charse. The main emphasis of the leamed counsel for the petitioner was that because of this exclusion clause (d), the Authority established Under The Payment and Wages Act 2013 was not competent to entertain and adjudicate r upon the gratuity claims of the respondents/ employees, however, the aforesaid clause (d), would manifestly show that only that gratuity would not be part of gratuity which is payable on discharge and thus when the learned counsel for the petitioner was confronted that whether the word "discharge" has been defined in the statute or in Tahir Saleem (S.8.) Hon'ble Mr.Justice Muhsmmad liaz Khrn

any other law, his reply was in negative, however, as per his wisdom claims of all kinds of gratuity would not fall within the definition of the "y4g99", however, such understanding and interpretation appears to be misconceived as if the legislatures had an intention to exclude all kinds of gratuity then they should have not been included the word ,,pa able on dischar ge". Leamed counsel for the petitioner though at the end agreed that the discharge would mean resisnatio removal and dismissal from service, however, when he was again confronted that whether the respondents/ employees have either been resigned, removed or dismissed from service, his reply was again in negative and as such when the legislatures have not defined the word "payable on discharge" in the relevant statute then its ordinary dictionary meaning is to be taken and considered. The following are definitions of word "payable on discharge" from different dictionaries:

* Black's Law Dictionary:

The phrase "payable on discharge" is commonly linked to fnancial obligations or debts that become due and must be paid when a particular event or condition, like the discharge of a contract or obligation, occurs. It often refers to payments due Tahir Saleem (S.8,) Hon'bl€ Mr. Justice Muhsmmad ljsz Khan

upon the resolution or completion of a specific legal duty, such as a loan being paid off upon the termination of the contracl's terms or a discharge in b ankrupt cy pr o c e e di n gs.

Oxford English Dictionary (OED):

The word "discharge" means to allow someone to leave a place or situation; to fulfill or complete an obligation."

Merriam-Webster:

The word "discharge" to relieve ofa duty, obligation, or burden."

Therefore, it is held that in the present case the claim for gratuity does not fall within the scope of exclusion clause due to the term of "discharge" as used by the statute itself and thus the Authority has competently & lawfully, and validly entertained & adjudicated upon the claims applications of the respondents/employees. It is settled jurisprudence of interpretation of statue that when a word has not been defined in the statute then ordinary dictionary V meaning of the word is to be taken and considered.

In a casel the Hon'ble Apex Court has held that any word or phrase in such a statute was to be read and understood in the context of the particular section and then in the context of the statute, and, if its meaning remained ambiguous then reference to I State Bank ofPakistan though ChiefManager, Peshawar and another vs' Securities and Exchange Commission ofPakistan and others (PLD 2018 SC 52) Tahir Saleem (S.8.) Hon'bte Mr. Justice Muhemmad licz Khan

judicial precedents on company law and legal treatise on company law explaining the said word or phrase may be had, however, if the meaning still eluded one then legal dictionaries and English language dictionaries could be examined. Similarly, in a case2 the Hon'ble Apex Court has held that when a word has not been defined in the statute, the ordinary dictionary meaning is to be looked at.

6 The second objection of leamed counsel for the petitioner was that respondents/ employees were not workmen as they were "sale mana sers" in the petitioner's corporation, however, when he was confronted that as to whether they were enjoying any powers to sanction leave or hiring and firing or of making any transfer order, his reply was in negative and such being the position, the sale manager is a workman and as such falls within the definition of workman' It is settled jurisprudence that it is the nature of duty/job description of an employee and not the designation which would determine the status of an employee that as to whether he/they are workmen or not and thus if this yardstick is applied to the case of Chairman Pakistan Railway, Govemment ofPakistan, lslamabad & others vs Shah Jehan Shah (PLD 2016 SC 534) Tahir Saleem (S.B.) Hon'ble Mr. Justice Muhrmmad ljaz Khoo

v respondents/employees then they do fall within the category of workmen. In a case3 the Hon'ble Apex Court has held that:-

"To determine whether a person is a workman is a finding of fact, routed in evidence and the person who approaches the court on the basis of an averment that he is a workman corcies the initial burden of proof to establish that he is a workman. To emphasize, when dealing with the question of burden of proof in establishing the status of the workman, this Court has consistently hetd that such burden lies on the person claiming to be a workman lt is the bounden duty of a person who approaches the Labour Courl to demonstrate through evidence the nature of duties and functions, and to show that he is not working in any managerial or administrative capacity and that he is not an employer. In the absence of such evidence, a grievance petition would not be maintainable before the Labour Court for lack ofjurisdiction. Moreover, it has been established that this burden of proof is to be discharged by the claimant thtough documentary and oral evidence supporting his claim that the nature of his work is, in fact, manual or clerical. This requires the production of evidence, ^i documentary or oral, which shows the nature of duties and the functions of the claimant pursudnt to his claim that he is s workman' It has been clariJied that even if there does not exist lhe power to hire or fire any person, the nature of the job as performed by the person must be evident from the holistic view of the record produced and that it has to be Muslim Commercial Bank Limited vs. Rizwan Ali Khan and others

(2024 SCMR 360)

Tshir Saleem 6.8.) Hor'ble Mr' Justice Mrhammrd ljrz Khrtr

determined through overall record whether he was employed as a workman doing manual and clericol work and whether he was discharging his functions in a managerial and supervisory role. Accordingly, it's vital for the court to consider all the evidence and to ascertain the duties and functions of the person claiming to be a workman and to ensure that the workman has discharged his burden with the required evidence. When it involves bank employees, duties and functions are documented as is daily work, which should be brought before the court in evidence ".

7 Even otherwise the aforesaid objection of the leamed counsel for the petitioner's organization is not legally sustainable as the provisions of The Khyber Pakhtunkhwa Payment of Wages Act, 2013 are not restricted to the "workmen" as fr!$l!., there is no reference of "workmen" in The Act of 2013 ard secondl in the preamble of the said Act of 2013 the word "employee" has been used by the legislature which obviously and surely shows the intentions of the ^7 legislature to the effect that the same are to be applied to all categories of employee irrespective of the fact that such an employee is a workmen or not.

It is also relevant to mention here that filing of an appeal under section 17 ofThe Act of2013 to the Labour Court is only for administrative Talir Saleem (S.8.) Hon'ble Mr. Justice Muhsmmad ljaz Khrn

convenience and the same does not mean that only a "workmeo" can approach to the Authority established under the Act of 2013.

!. Another objection of learned counsel for the petitioners was that some of the employees have been retired from Islamabad, therefore, the Authority established Under The Payment and Wages Act 2013 for Hazara Division at Haripur has no jurisdiction, however, such objection of the leamed counsel for petitioner too is misconceived as The Act of 201 3 is a provincial statute and under section 15 (1) of the ibid Act The Provincial Government of Khyber Pakhtunkhwa could appoint an Authority within the territorial boundaries of the province and as such no Authority at Islamabad could neither be appointed nor functioned. Even otherwise, for determining the territorial jurisdiction of the Court or Authority the predominance of the grievance(s) is to be considered and if this yardstick is applied to the present case then refusal to pay gratuity has been made to the respondents/ employees who were at Abbottabad and Haripur, however, even otherwise a refusal to pay gratuity would amount to a continuing wrong which will create a recurring Tahi Saleem (S.8.) Hon'ble Mr. Justice Muh'mmrd ljxz Khxn

cause of action to respondents/employees, therefore, the Authorify established Under The Payment and Wages Act 2013 for Hazara at Haripur is having the jurisdiction to entertain the claims application of such employee. In casea the Hon'ble Apex Court has held as under;

" Following principles are to be adhered to while de t e r mining teruitor i al j ur i s dic tion.

@ fhe first step in an analysis regarding the territorial jurisdiction of this Court is a determination of the dominant purpose of the petition. It is the dominant purpose and not any ancillary purpose that will govern which act, order or proceeding forms the predominant grievance that needs to be adjudicated, which will then identify the person whose act, order or proceeding is under challenge to further ascertain whether such person folls within the territorial jurisdiction of this Court.

(ii)When d person exercising jurisdiction in connection with the alfairs of the Federation whether the government itself, or an attached de partment or corporation performing functions in connection with affairs of the stdte, whose act, order or proceeding can have legal effect across Pakiston or beyond the physical jurisdiction of the province or territory in which its primary ofrce or headquarters is based, any High Court within whose jurisdiction such order creates a legal effect would have the jurisdiction to determine its legality.

(iii)The question of jurisdiction in relation to a person performing funclions in connection with P the affairs of the Federation across Pakistan is two-pronged: the Court needs to first ascertain that the act or order or proceeding in question is that of a person whose acts or orders or proceedings have jurisdiction and thus legal force across Pakistan, including within the territoriol jurisdiction of such Court in view of the law that vests jurisdiction in such person; and it further needs to veri/y that the act or order or proceeding in question causes d grievance to a person within the territorial jurisdiction of Muhammad Tahir Masood & 5 others vs. Chairman State Life Insuranae Corporation ofPakistan and 2 others (2022 PLC (C.S) 439 Tahir Saleem (S.8.) Hon'ble Mr. Justic€ Muhammad ljaz Khsn

such court.

(iv)If the test of territorial jurisdiction is satisJied, the principle of choice takes hold and the doctrine of forum convenience is not applied by the High Court while regulating its own jurisdiction i.e. if two or more High Courts are vested wilh jurisdiction in relation to a certain matter it is then for the petitioner to determine which forum is mosl convenient for him to have his grievance adjudicated and where such choice is reasonable and not aimed at gaining an undue advantage against the respondent, the Court defers to the petitioner's decision. Such choice affords linited but legitimate discretion to the petitioner and the choice thus made is not regarded as forum shopping from a public policy perspective. "

9 Learned counsel for the petitioners has also contended that the claim of the some of the employees is time barred as under section 15 of The Khyber Pakhtunkhwa Payment of Wages Act, 2013 the same is to be filed within three years, however, as stated hereinabove that since refusal of gratuity is a recurring cause of action like in cases of refusal of a pension, therefore, the law qua limitation is not to be strictly applied.

10.As far as the merit of the case is concemed before the leamed fora below it was the * case of petitioners that since the respondents/ employees had been appointed after cut ofdate i.e' 16.10.1984, therefore, they were not entitled to the gratuity, however, when he was confronted with the notification dated 28.08.2009, whereby, the Board of Directors of the petitioners' corporation has Tahir Saleem (S.B.) Hon'ble Mr. Justice Muhammad ljsz Khrn

t4

specifically held that the gratuity is to be paid to all the employees whether they were appointed before 16.10.1984 he was thereafter unable to come up with any satisfactory answer and thus on this score too, the contention of leamed counsel for petitioners devoid of any force more specifically when it is part of the record that in the past the petitioners/corporation has/had paid the gratuity to hundreds of their employees, however, the same is being refused to the respondents/ employee(s) therefore the worthy Authority has rightly allowed their claim.

11.In view of the above discussion, all objections ofthe learned counsel for the petitioners are not legally sustainable, therefore, the same are repelled and consequently the impugned orders of The Authority as well as of the leamed Labour Court being in accordance with law are maintained and upheld and consequently this petition as well as connected petitions being bereft of any merits are dismissed in limine.

Anno ced 18.tt.2024

JADGE

Tahir Saleem (S.B.) Hoo'ble Mr. Justice Muhrmm&d ljrz Kher