2 0 1 2 PL C 6 2
[Balochistan High Court]
Before Mrs. Syeda Tahira Safdar and Muham mad Noor Meskanzai, JJ
HABIB BANK LTD. through Attorney
Versus
ABID -HUSSAIN and 2 others
Constitutional Petition No.42 of 2011, decided on 27th October, 2011.
Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968) ---
----Ss. 12 & IS Termination of service simplicitor without allegation of any
misconduct/act/omission provided in S.15 of Industrial and Commercial Employment
(Standing Orders) Ordinance, 1968 ---Show cause notice, issuance oft ---Scope ---Issuance of
show cause n otice and holding of inquiry would not be required in such case, rather
issuance of one month's notice or pay in lieu thereof would fulfil the requirement of law ---
Illustration. [p. 70] A
Muslim Commercial Bank Ltd. v Sindh Labour Appellate Tribunal 1984 PLC 1149; National
Bank of Pakistan v. Muhammad Haleem Chohan 1989 PLC 17; Messrs Katha Digwell Mines
Ltd. v. Shah Muhammad alias Shah Pir 1993 PLC 173; Najeeb -ur-Rehman v. Agricultural
Development Authority 1993 PLC 615; Walayat Ali Mir v Pakistan Intern ational Airlines
Corporation 1995 SCMR 655 ref.
Javed Asghar for Petitioner
Nasir Khan Yousafzai for Respondent No.l.
Date of hearing: 11th April, 2011.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. --- The petitioner Bank, being aggrieved of the
judgment dated 29th December, 2010 of Labour Appellate Tribunal Balochistan, Quetta,
whereby the appeal filed by the respondent was allowed, and the Order dated 31st October,
2009 of Presiding Officer -IV, Labour Court, Gawadar at Turbat, was set aside, thereby the
respondent was reinstated in service with back -benefits, and the termination order dated 31st
January, 2006 was also set aside, preferred instant petition. The petitioner Bank assailed the
order on the grounds that the Appellate Tribunal failed to appreci ate the facts, and
circumstances of the case as set up in the pleadings of the parties, therefore, made an error
while making decision, thus not sustainable. It is contended that no grievance notice, as per
requirement of section 46 of the Industrial Relat ion Ordinance, 2002 (hereinafter referred the
Ordinance, 2002), was served before filing of the grievance petition, which is in complete
violation of law. It is further contended that respondent No.1 failed to file grievance petition
before Labour Court wi thin the provided period of two and a half months. It is contention of
the petitioner that if the time is counted from the date of acquittal of respondent No.1 from
the criminal case, even then according to his own pleadings he (respondent No.1) was
releas ed from jail on 15th January, 2007, and the petition was filed on 22nd February, 2007,
there is clear delay of one month and seven days. It is the contention that in the
circumstances, the grievance petition of respondent No.1 was barred by time, and there were
no reasons for condonation of the delay on behalf of respondent No.1. But the Appellate
Tribunal failed to consider the relevant law, and the principles applicable in the matter,
thereby condoned the delay, which is contrary to law, thus not sustaina ble. The judgment is
challenged on merits also with contention that the Appellate Tribunal misunderstood the
facts. Further, the case of respondent No.1 was of termination simplicitor, with no
requirement for issuance of show -cause notice or conducting of inquiry in the matter against
respondent No.l. It has been prayed that the impugned order dated 29th December, 2010 be
set aside, being made without any lawful authority, thus of no legal effect.
2. Through his counter affidavit respondent No.1 raised se veral objections on maintainability
of the petition. It is contended that. the petition has been filed purely on mala fides, and with
personal grudge. Further, according to dictum laid down by the apex Court that no one could
be condemned unheard, but this has not been observed by the petitioner while making an
adverse order. Respondent No.1 further raised contention that once a question of law, like
limitation, is settled by a principal or by appellate court that cannot be 'interfered by a higher
forum. Th erefore, on this ground instant petition is liable to be dismissed. On merits it is his
contention that the law contained in section 41 of the Industrial Relation Act, 2008 has been
misinterpreted. Further, it is an admitted position that the Employer Bank terminated his
services without issuance of any show -cause notice, and without conducting of any inquiry,
or even providing him any opportunity of being heard personally, which otherwise are pre -
requisites of law, and have to be fulfilled. But these pro visions are violated by the petitioner
Bank with deliberation, therefore, rightly set aside by the Appellate Tribunal, and need no
interference by this Court. Prayer for dismissal of the petition with special costs has been
made by respondent No.l.
3. Th e learned counsel for the parties were heard, and record was perused. While arguing the
point of limitation the learned counsel for the petitioner contended that section 46 of the
Industrial Relation Ordinance, 2002 (Ordinance 2002) is relevant in the matt er, whereby the
required time for issuance of grievance notice to the employer is of one month, from the date
on which cause of such grievance arises. Further, in case of no reply from the employer, for
approaching Labour Court two months and fifteen days are provided, which also includes 15
days time for making decision on the grievance notice by the employer. It is contended that
the respondent No.1 approached Labour Court after provided period, which was admittedly
lapsed in May, 2006. While supporting t he findings of the Labour Court dated 31st October,
2009, the learned counsel for the petitioner stated that it is an established principle of law that
limitation once started never stopped due to subsequent acts. The second argument of the
learned counsel was to the effect that respondent No.1 was not terminated as a punishment,
rather it was termination simplicitor, therefore, there was no need of issuance of show cause'
notice. Further, the Habib Bank Limited Services Rules, 1981 are applicable in the ma tter,
and there is no violation of the relevant, Rules in the steps taken by the petitioner. Further, the
petitioner Bank is a private Company, and respondent No.1 is not a civil servant, therefore,
the matter cannot be dealt under the Rules applicable on civil servants. While replying to the
arguments, the learned counsel for respondent No.1 raised objection on competency of this
court. According to him the petition is not entertainable before this court while exercising
writ jurisdiction. It is further hi s contention that question of limitation cannot be entertained
while exercising writ jurisdiction by this court. On merits it was his contention that
respondent No.1 was not in knowledge of the fate of grievance petition, as no order was
communicated to hi m, rather the termination letter was served on him, when he was in jail on
18th February, 2006. The learned counsel relied on:
(i) Muslim Commercial Bank Ltd. v. Sindh Labour Appellate Tribunal 1984 PLC page -1149,
(ii) National Bank of Pakistan v. Muha mmad Haleem Chohan 1989 PLC page -17,
(iii) Messrs Katha Digwell Mines Ltd. v. Shah Muhammad alias Shah Pir 1993 PLC page -
173,
(iv) Najeeb -ur-Rehman v. Agricultural Development Authority 1993 PLC page -615,
(v) Walayat Ali Mir v Pakistan International Airlines Corporation 1995 SCMR page -655
4. The learned counsel for respondent No.1 relied on Standing Order No.12 of West Pakistan
Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (Ordinance
1968). He further relied on Standing Orde r 15(4) of the Ordinance, 1968, being relevant in
the matter in hand. It is his contention that there is complete violation of both these Clauses,
and as required therein no information in writing was served on him, nor he was given an
opportunity to expla in the circumstances alleged against him. In reply the petitioner only
stated that it was not obligatory on the Bank to reply the grievance notice.
5. Perusal of the record reveals that respondent No.1 being employee of the petitioner Bank,
was terminate d from his services by petitioner Bank through letter of termination bearing
date 31st January, 2006. Feeling aggrieved of the order a representation/ departmental
appeal was submitted by respondent No.l bearing date 2nd March, 2006, but there is no
decisi on on this representation by the Bank, whereupon he, approached Labour Court for
redressal of his '• grievance by way of filing an application under provisions of section 46
of the Ordinance, 2002. The petitioner Bank contested the application by way of fi ling
their reply. The Labour Court through order dated 31st October, 2009, while rejecting the
application filed under provisions of section 5 of the Limitation Act, whereby
condonation of delay in filing of the grievance application was sought, also dismi ssed the
main petition being found it to be filed beyond period of limitation. This order was
assailed before Labour Appellate Tribunal, Balochistan by way of filing an appeal, which
was allowed through judgment dated 29th December, 2010, and respondent No .1 was
reinstated in services after setting aside of the termination order dated 31st January, 2006.
This order of the Labour Appellate Tribunal is challenged through instant petition. Both
the parties claimed violation of the relevant provisions of law in the matter. According to
the petitioner the required grievance notice under section 46 of the Ordinance, 2002, was
not served before filing of the grievance petition, as such the petition filed by respondent
No. 1 was liable to be dismissed. Both the lear ned counsel relied on previsions of section
46 of the Ordinance, 2002, while arguing the matter, which reads as under: --
"46. Redress of individual grievances. --- (1) A worker /nay bring his grievance in respect of
any right guaranteed or secured to him by or under any law or any award or settlement for the
time being in force to the notice of his employer in writing, either himself or through his
Shop Steward or collective bargaining agent, within one month of the day on which cause of
such grievance ari ses.
(2) Where a worker brings his grievance to the notice of an employer himself or through his
Shop Steward or collective bargaining agent, the employer shall, within fifteen days of the
grievance being brought to his notice, communicate his decision i n writing to the worker.
(3) If an employer fails to communicate a decision within the period specified in subsection
(2) or if a worker is dissatisfied with such decision, the work or Shop Steward may take the
matter to his collective bargaining agent o r the Labour Court, as the case may be, and where
the matter is taken to the Labour Court, it shall give a decision within seven days from the
date of the matter being brought before it as if such matter were an industrial dispute:
Provided that a worker who desires to take the matter to the Labour Court, he shall do so
within a period of two months from the date of communication of the employer or, as the
case may be, from the expiry of the period specified in subsection(2).
(4) In adjudicating and det er/nining a grievance under subsection (3) the Labour Court shall
go into all the facts of the case and pass such orders as may be just and proper in the
circumstances of the case.
(5) The Labour Court, in case the termination of services of a workman is held to be
wrongful, may award compensation equivalent to not less than twelve months and not more
than thirty months basic pay last drawn and house rent, if admissible, in lieu of reinstatement
of the worker in service.
(6) If a decision under subsecti on (4) or an order under subsection (5) given by the Labour
Court or a decision of the High Court in an appeal against such a decision or order is not
given effect to or complied with within one month or within the period specified in such
order or decisio n, the defaulter shall additionally be punishable with fine which may extend
to ten thousand rupees.
(7) No person shall be prosecuted under subsection (6) except on a complaint in writing by a
workman if the order or decision ,in his favour is not imple mented within the period specified
therein.
(8) For the purposes of this section, workers having common grievance arising out of a
common cause of action may make a joint application to the Labour Court. "
6. The provisions contained in the Section are very much clear, and comprehensive in all
respect. The required grievance notice in compliance of subsection (1) of this section was
sent to the petitioner Bank by respondent No.1 through Superintendent Central Jail Mach
on 2nd March 2006, as asserted by respondent No.1. Though the petitioner in his written
reply before Labour Court denied the fact, and asserted for dismissal of the petition. In
present case, it is an admitted position that respondent No.1 was sentenced, and he was in
jail at relevant time . The copy of the notice attached with the instant petition reveals that
the same was sent through Superintendent Central Jail, Mach, duly signed carries official
stamp of Superintendent, Central Jail Mach, therefore, the fact of receiving it by the
petiti oner Bank, and making decision thereon, will be of less consequence. Because, the
further remedy provided in the section is not based on dismissal of the grievance notice.
Rather subsection (3) of section 46 of the Ordinance, 2002, also describe the instan ce if
there is no decision on the part of the employer, for which 15 days time is provided in
subsection (2) of the section, the aggrieved person is allowed to approach the Labour
'Court within a period two months. Keeping in view the provisions, an aggrie ved person
have to prefer appeal within two months, after waiting for a period of 15 days for a
decision required to be made by the employer. But in present case respondent No.1 was
terminated from his services through order dated 31st January, 2006, which was
admittedly received by respondent No.1 on 18th February, 2006. Feeling aggrieved of it
he sent grievance notice, as per requirement, on 2nd March, 2006 within provided period,
but he filed grievance petition before Labour Court on 22nd February, 2007 after lapse of
one year. The ground on which the condonation of delay was sought was only to the
effect that he was implicated in a false case, and was in custody since 28th August, 2004
till his acquittal i.e. 15th January, 2007, and thereafter, he made e fforts, and collected the
material, and amount to bear the expenses for filing of the petition, which according to
him were beyond his control. The trial court/Labour Court did not agree with the 'reason
assigned for condonation of the delay, and dismissed the grievance petition finding it to
be .time -barred. But the Labour Appellate Tribunal not only condoned the delay, but also
set aside the order of the Labour Court, and order of termination, and made a decision (if
reinstatement of respondent No.1 in se rvice. The Labour Appellate Tribunal condoned the
delay only on ground that: -
"... it is admitted fact that appellant was not committed any misconduct, embezzlement, or
any disobedience or fault of his employer and he almost has spent his youth by joinin g
services of respondent prior to 1991 and later on due to tribal enmity he was implicated in a
false case by his enemies or opponents and initially he was sentenced to life imprisonment
but Hon 'ble High Court Balochistan set aside the said judgment vide his judgment dated 15 -
1-2007 and hold him as innocent. The respondent bank instead of helping his employees in a
deep crises but terminated him from kis services and thrown him and his family members
further in troubles. As I have stated hereinabove the ca se of appellant in the light of above
quoted authority is a fit case that an innocent person for his no any fault, first given a fatal
below by his opponents and the second one was done or given by his own employer. Who
taking benefit of situation terminat ion him ignoring his eighteen years precious service. So
being this is fit case where serious kind of injustice has been done with appellant in violation
of legal provisions as -contained in Standing Order Ordinance 1968."
7. The reason assigned by the L abour Appellate Tribunal are astonishing. Admittedly the
grievance notice was made on 2nd March, 2006, therefore, the respondent No.1 was
required to approach Labour Court after waiting for 15 days, within a period of two
months, which surely expired in Ma y, 2006. But admittedly the respondent No.l
approached the Labour Court in February, 2007, after lapse of more than 9 months, that
too without showing sufficient cause. The Labour Court has rightly held the same, while
the Labour Appellate Tribunal made an error while condoning the delay on ground not
available to respondent No.l. As far as merits of the case are concerned, the Labour
Appellate Tribunal accepted the appeal on ground that order of termination has been
made by the petitioner without issuing a ny show cause notice, and without conducting of
inquiry in violation of the provisions of Standing Order Ordinance, 1968, which in fact is
the West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance,
1968. The procedure provided there in is applicable in matter in hand, as the petitioner
Bank is covered within the term Commercial Establishment. Thus, as per requirement of
law the procedure provided therein is to be adopted by the Bank while making an order in
respect of service of an em ployee of the Establishment. Standing Orders 12 and 15 of the
Schedule, attached to the Standing Order are relevant in the matter. Clauses (1) and (4) of
Standing Order 12 states about termination of employment, which reads as under: ---
"12. Termination of employment. --- (1) For terminating employment of a permanent
workman, one month's notice in writing shall be given either by the employer or the
workman. One month's wages calculated on the'basis of average of wages earned by the
workman during the last three months shall be paid in lieu of notice.
(4) The services of a permanent or temporary workman shall not be terminated on grounds of
misconduct otherwise than in the manner prescribed in Standing Order 15.
8. The Standing Order 15 describes the mo de, and quantum of punishment, which can be
awarded by the employer to the employees in certain cases but clause (4) of Standing
Order 15 also speaks about issuance of written information by the employer to a workman
disclosing the intended action. It spea ks as under: --
"15(4). No order of dismissal shall be made unless the workman concerned is informed in
writing of the alleged misconduct and is given an opportunity to explain the circumstances
alleged against him. The approval of the employer is require d in every case of dismissal and,
when institute independent inquires before dealing with charges against a workman."
9. But it is to be noted that in present case, this clause is not attracted, as admittedly the
services of respondent No.1 were not term inated on allegation of any misconduct, and on
basis of any acts or omissions provided in clauses (1), (2) and (3) of Standing Order 15.
Rather, in case in hand, there is termination simplicitor. Thus in the circumstances, clause
(1) of Standing Order 12 w ill be the most relevant, and applicable in the matter. As
reproduced hereinabove, only one month's notice in writing is mandatory before putting
to an end of his i service, but that too, in case of permanent workman, or in alternate one
month's pay shall be paid in lieu of notice. In present case the order of termination was
made without recording any allegation, thus there was no need for issuing of any show -
cause notice or holding of inquiry. Rather, issuance of one month's notice, and payment
of one mon th's pay was enough, as it fulfils the relevant provisions of law, which has
been done by the petitioner Bank. The findings of the Labour. Appellate Tribunal, that
there is violation . of provisions of Ordinance of 1968, are on no legal footings.
10. In v iew of above discussion, it is concluded that not only the grievance petition, filed
before Labour Court, was beyond provided period, but also failed to disclose reasonable
cause for it, whereby delay occurred can be condoned. Therefore, the order of the L abour
Appellate Tribunal, for reinstatement of respondent No.1 in services, is in contravention
of the provisions contained in the Schedule of West Pakistan Industrial and Commercial
Employment (Standing Orders) Ordinance, 1968, therefore, cannot remain in field. The
petition is hereby accepted. The order of the Labour Appellate Tribunal dated 29th
December, 2010 is hereby set aside.
No orders as to costs.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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