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Petitioner: NATIONAL BANK OF PAKISTAN, LAHORE VS Respondent: MUHAMMAD HALEEM CHOHAN
Court Name: Labour Appellate Tribunal Judge(s): Sardar Muhammad Abdul Ghafoor Khan Lodhi Title: NATIONAL BANK OF PAKISTAN, LAHORE vs MUHAMMAD HALEEM CHOHAN Case No.: Appeal No, LHR-843 of 1980 Date of Judgment:1982-03-23 Reported As: 1984 PLC 557 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' This appeal is directed against the decision, dated 11th December, 1980 passed by the learned Presiding Officer, Punjab Labour Court No, 1, Lahore, whereby the grievance petition of the respondent was accepted and he was directed to be re-instated in service with back benefits. 2. The respondent was arrested in a criminal, case on 8th October, 1979 and sent to the judicial lock up where he remained upto 16th April, 1980 when he was released on bail. The respondent was firstly suspended and then terminated vide order dated 19th December, 1979 (Exh. P. 1). The ground given in the termination order was that the services of the respondent were no longer required. Admittedly. Before terminating the services of the respondent, neither he was charge-sheeted, nor enquiry was held against him. Even no notice was issued to him calling upon him to show cause why his services should not be terminated. 3. The learned counsel for the appellant has argued that the grievance notice and the grievance petition of the respondent were time-barred. According to the learned counsel, the letter of termination was sent to the respondent in triplicate in two sets. One set of letters in triplicate was sent at his home address namely House No, 1 behind Shandara Police Station, G. T. Road, Shandara, Lahore and the other set in triplicate on the address of Flat No, S-14, National Bank of Pakistan Staff Colony, Samanabad, Lahore. Out of the three letters one was sent by registered post-the other by ordinary post and the third under postal certificate. The learned counsel has said that the registered letter with A/D sent to the respondent on the address of National Bank Staff Colony was received by the brother and one of the letters sent to him on Shandara address came back with the report that the delivery had been refused. The AID receipt which, according to the learned counsel, bears the signatures of the brother of the respondent is Exh. D-5 and the letter, receipt of
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which, was refused is Exh. D-8. Learned counsel says that since these letters were served in December, 1979, the grievance notice received in April was time-barred. He had also argued that the Labour Court has no jurisdiction to condone the delay in giving grievance notice as section 5 of the Limitation Act applies only to petitions and appeals. This is factually wrong that any registered letter was received by the brother of the respondent or that the delivery of any registered letter was refused by the respondent himself. Acknowledgment receipt Exh. D-5 no doubt bears the signatures of some one which read as Muhammad Azam Chohan but this is a bogus document inasmuch as it does not bear the seal of the Post Office. On every A/D receipt through which a registered letter is delivered and signatures of the addressee or any other person on his behalf were received, post office seal is affixed. Since Exh. D-5 does not bear the seal of the post office, it means that no registered letter was sent through this A/D receipt and thus the document is bogus. To exclude any confusion it is necessary to point out that the seal affixed on the back of this receipt is not of the post office but of the National Bank affixed in place of giving the name and address of the sender. This seal shows that the sender of the letter was National Bank of Pakistan. There are three letters on this file Exhs. D-6 to D-8 which were sent to the respondent on the address of his house situated in Shandara. Exh. D-6 bears the report probably of the postman that the addressee was not found at the residence and that his mother had refused to take the delivery. Letters Exhs. D-7 and D-8 bear the report of the postman, dated 24th December, 1979 which is to the effect that the delivery was refused. It is not mentioned who refused to receive the letter. According to the statement of the respondent, he was arrested on 8th October, 1979 and released on bail on 16th April, 1980. This part of the statement of the respondent does not stand controverted by any evidence oral or documentary of the appellant. It is thus manifest that on 22nd December, 1979 and 12th December, 1979 when letters Exhs. P. 6 to P. 8 were taken by the postman at the Shandara address of the respondent, the respondent was in the jail. When he was in the jail, on the said date how he could be said to have refused the delivery of the letter at his home address. The reports of 24th December, 1979 appearing on letters Exhs. D-7 and D-8 are, therefore, absolutely false. Some one who went to the extent of forging document Exh. D-5 may have procured false reports from the postman on Exhs. D-7 and D-8. There is no evidence on the record to the effect that Muhammad Azam Chohan whose signatures purport to appear on Exh. D-5 is the brother of the respondent. Rather on the contrary Mr. Salim Akbar, Welfare Officer, Principal Office, D. W. 2, stated that the termination letter sent under registered cover to the respondent was received by his representative vide receipt Exh. D-5. According to D. W. 2, the person who signed Exh. D-5 is the representative of the respondent whereas according to the learned counsel for the appellant, he is brother of the respondent. No question was put to the respondent to the effect whether Muhammad Azam Chohan is brother or representative. Even D. W. 2 has not said as to from which source he learnt that Muhammad Azam Chohan was the representative of the respondent. Whatever, the case may be as Exh. D-5 does not bear the seal of the post office, it manifestly is a bogus document and cannot in any manner bind the respondent. According to the respondent, he on being released on bail on 16th April 1980 learnt from his wife that his services had been terminated. So, he came to know of his termination on 16th April, 1980 and since he sent grievance notice on 20th April, 1980 the said notice is within time. So there is no force in the argument of the learned counsel that the grievance notice was time-barred. 4. Learned counsel has argued that the service of the respondent was terminated since he was not available to discharge his duties and post could not be left vacant. He also says that no case was got registered against the respondent by the bank. The argument of the respondent on the other hand is that he was arrested by the police in a case of misappropriation got registered by the bank. No doubt, copy of the F. I. R. Is not on the record which may show whether the respondent was named in the case which admittedly was registered at the instance of the National Bank but D.
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W. 7 in cross-examination admitted that criminal cases brought by the National Bank were pending against the respondent. No doubt, he showed his ignorance if the respondent had been arrested and was sent to jail on account of those criminal cases but as this is no body's case that against the respondent some other person besides National Bank had also brought any criminal case, the inference is irresistible that he was arrested and sent to jail on 8th October, 1979 as stated by him in the cases registered against him by the National Bank. If the ground given in the letters of termination Exh. P. 1 is considered, then it would mean that the appellant no longer required the post of Senior Assistant and, therefore, terminated the services of the respondent. But this fact does not stand proved by the evidence produced by the appellant. D. W. 2 stated that the post of Senior Assistant had not been abolished that the respondent was senior to many senior Assistants and that his juniors were still working in the bank. It is thus clear that the post of Senior Assistant was not retrenched and it is, therefore, wrong that the services of the respondent were no longer required. If the services of the respondent had been terminated for the reason that he had remained absent without leave, then it was a misconduct and his services could be terminated only after charge- sheeting him and holding enquiry against him. According to paragraph 258 of the Wage Commission Award-I, no kind of punishment can be awarded to an employee unless he had been asked to explain his conduct and an enquiry is held against him giving proper opportunity to defend himself. Since neither the respondent was charge-sheeted, nor any enquiry was held against him, the order of termination is bad in law. Although in the letter of termination, the reason given for termination is not that the respondent was not available and incapable of rendering service, yet even if this ground is entertained, it was necessary to give an opportunity to the respondent to explain why his services should not be terminated on account of his inability to render service. Learned counsel for the appellant says that the Bank did not know if the respondent had been arrested by the Police and was in the judicial lock up. Firstly, this is not correct that the Bank did not know about the arrest of the respondent, because as observed above, the respondent had been arrested in the fraud cases brought by the Bank against him. Even if it is to be said that the appellant did not know the whereabouts of the respondent notice to show cause should have been sent at his known address as was done in respect of the service of the letter of termination of service. If the respondent had not shown good cause for his not rendering service, there could be some scope to say that opportunity of hearing and defending himself had been afforded to him before termination of service. This is not the case of the appellant that before termination his services any show-cause notice was sent to the respondent. Rather the learned counsel for the appellant has argued that under paragraph 234 of the Wage Commission Award, the appellant Bank was competent to terminate the services of the respondent without service of notice. Firstly, paragraph 234 referred to by the learned counsel for the appellant does not come under decisions made by the Wage Commission and secondly even if it be said that this paragraph has a binding force, it is to be read alongwith paragraph 236 which enjoins upon an employer to send a notice to absentee employee asking him to report for duty on or before the date specified in the notice which should not be less than seven days. The notice is to be sent by registered post with acknowledge due receipt. If the absentee fails to report for duty in spite of the service of notice, then he is to be deemed to hav vacated the appointment. As the respondent did not attend his duty, notice should have been issued on the home address as required by paragraph 236, even if it be said that the appellant Bank did not know about his arrest. Again paragraph 234 does not mean to say that without giving any reason an employee who has completed the period of probation can be called upon to resign or his services terminated on one month notice or pay in lieu of notice without any reason. So far as this point is concerned that paragraph 234 has not been included in the decisions made by the Wage Commission, paragraph 302 is clear. The list of decisions given under this paragraph does not contain paragraph 234. This paragraph does not find place even in
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Chapter XVIII with the title "Summary of important observations, conclusions and recommendations". According to section 38-D of the Industrial Relations Ordinance, 1969 only the decisions of the, Wage Commission published under section 38-C are to be deemed to be,' an award of the Wage Commission and have binding force but not the rest of the observations and the recommendations. 5. Learned counsel for the appellant has also argued that by the third Wage Commission Award paragraph 234 has been included in the decisions and thus its provisions have binding force. This is true that by the third Wage Commission Award, which has been given effect to from 1st January, 1981 paragraph 234 and some other paragraphs have been included in the decisions of the Wage Commission Award, but it does not mean that paragraph 234 applies to the cases where action was taken before this paragraph was included in the decisions. Learned counsel for the appellant, however, has said that to procedural law retrospective effect is not to be expressly given and they have retrospective effect unless expressly provided that they would be prospective. He has cited AIR 1951 Pat. 333, AIR 1941 Lah. 22, AIR 1941 Lah. 291, PLD 1965 SC 157, PLD 1965 SC 1, PLD 1965 SC 681 and 1964 PLC 221. The observations made in AIR 1951 Pat. 333 are :- "The provisions of a statute cannot be applied retrospectively in the absence of express enactment or necessary intendment. But the provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually admissible, have retrospective effect attributed to them. No person can have a vested right in a course of procedure, and it is an elementary principle that a plaintiff or a defendant has the right of prosecution or defence in the manner prescribed, for the time being by or for the Court in which he sues, and if there is an act which alters that mode of procedure has no other right than to proceed according to the altered mode." ' It has been further observed :- "The general principle is that alteration in a procedure is retrospective unless there be some good reasons against it. Where a statute is passed for the purpose of supplying an omission in a former statute or for explaining a former statute, the subsequent statute relates back to the time when the prior statute was passed." ' The facts of the case from which AIR 1941 Lah. 22 arose were that a wife had brought a suit for declaration to the effect that her marriage had come to an end on account of her conversion to Christianity faith. The suit was decided before Act VIII of 1939 had come into force, but during the pendency of the appeal the said Act was enforced. It was, therefore, held that the right claimed by the wife had not vested in her under any statute and consequently she could not insist that that right was indefeasible. The law applicable was that as contained in section 4 of Act VIII of 1939 by which no marriage could be dissolved merely on account of change of faith. The facts of the case from which PLD 1965 SC 157 arose were that there was a bar against the election of Government contractors to Provincial Assembly which had been imposed by section 116 of the Representation of the Peoples Act, XXXI of 1957. By Repealing Act XXIII of 1963 the bar had been removed when the appeal was pending before the Supreme Court. It was held that the effect of the repealing Act was retrospective. In PLD 1965 SC 1 it has been obserfed :- "On filing the appeal the entire matter becomes reopened and sub judice and has to be decided in accordance with the law prevailing." In PLD 1965 SC 681 it has been observed :- "A statute cannot be said to have a retrospective operation because its supplies a new mode of procedure to suits commenced before its passing. In other words, if a statute deals merely with the procedure in an action, and does not affect the rights of the parties, it will be held to apply prima facie to all actions, pending as well as future. It is only if it be more than a mere matter of procedure, that is, if it touches a right in existence at the passing of the new Act, that the aggrieved
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party would be entitled to succeed in giving a successful challenge to the retrospective effect of the new Act." ' No question of retrospective effect of any law was involved in the last mentioned authority cited by the learned counsel for the appellant i. e., 1964 PLC 887. 6. It is clear from the survey of the above-mentioned authorities that only a procedural law has retrospective effect, but not a law which has changed the vested rights of the parties. This is noteworthy that in PLD 1965 SC 157 the Act which barred the Government Contractors to take part in election of Provincial Assembly had been repealed before the election was held, the election petition was filed and the Tribunal had passed an order setting aside the election. The Act of 1957 was by section 2 of the Act, 1963, deemed to have been repealed on 23rd March, 1962, whereas the election was held in May, 1962. The election petition was filed on 8th June, 1962 and the Tribunal had set aside the election on 7th February, 1963. It is apparent that before the very election was held the bar had been remo ied by the repeal of the Act, therefore, the appeal of the elected person was accepted by the Supreme Court. In the present case since at the time the respondent was terminated paragraph 234 had not been declared to be the decision of the Wage Commission, the respondent had a right not to be removed from service under the said paragraph without being charge-sheeted and an enquiry held against him and that the said paragraph was declared as the decision of the Wage Commission with effect from 1st January, 1931 much afterwards. After the expiry of three years the first Wage Commission Award automatically case to an end under section 38-C of the Industrial Relations Ordinance, 1969. In the second Wage Commission Award paragraph 234 was not declared as the decision, therefore, the said paragraph did not give any right to the employer upto 31st December, 1980 to terminate the services of his employees without charge-sheeting and making an enquiry against them. This big gap could not be filled in automatically unless expressly a retrospective effect had been given to the third Wage Commission Award. Even retrospective effect could not, be given to the third Wage Commission Award because the Ordinance which authorises the Wage Commission to make decisions does not give power to it to give retrospective effect to its findings. Section 38-C provides in clear terms that the decisions of the Wage Commission after being published as required by subsection (1) of the said section came into operation on such date as may be specified in the decisions and where no date is so specified they shall come into operation on the date of their publication. Since the Wage Commission expressly provided that the third Wage Commission would come into operation from 1st January, 1981, paragraph 234 became the decision of the Wage Commission from the said date and not from any date prior to that. Paragraph 234 is not procedural but gives a right to the employer to terminate his employee on one month's notice or one month's pay in lieu of notice or to ask the employee to resign from service So far as AIR 1941 Lah. 22 is concerned before coming into force of Act VIII of 1939 there was no codified law providing that a marriage could come to an end by the conversion of faith. The suit of the wife, therefore, was not based upon any right guaranteed by any codified law and since during the pendency of the appeal expressly it was provided by section 4 of Act VIII of 1939 that dissolution of marriage could not take place automatically merely on account of change of faith, there fore, it was held that the wife was not entitled to wriggle out of the marriage tie. Likewise in the present case also before the third Wage Commission Award gave right to the employer to terminate the services of its employees on one month's notice or one month's pay in lieu of notice, there was no provision in this respect and thus he had no such power, therefore, no question of retrospective effect arises. From 1st January, 1981 no doubt the banks have authority to terminate their employees under paragraph 234 on one month's notice or pay in lieu of notice or to ask the employees to give resignation. Since paragraph 234 did not stand included in the decisions at the time the respondent was terminated, the
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appellant could not terminate the services of the respondent without assigning any cause and without giving him opportunity to show cause and to defend himself. 7. The other point argued by the learned counsel for the appellant is that the Labour Court had no jurisdiction in the cases in which the National Bank takes any action against its employee because the Award of the Commission is not that Award which has been defined in section 2 (ii) of the Industrial Relations Ordinance, 1969. According to him, such an Award cannot be said to guarantee any right for which a petition under section 25-A of the Industrial Relations Ordinance, 1969 may be made. He supports his arguments by 1982 PLC 1. In the authority cited by the learned counsel for the appellant it has been observed that the Award of the Commission is not that award which has been defined in the Industrial Relations Ordinance, 1969. The Legislature was aware of this fact when it provided in section 38D of the Ordinance that "decisions of the Wage Commission published under section 38-C would be deemed to be an award of the Full Bench of the Commission and the provisions of the Ordinance applicable to such award including the provisions of sections 51 and 55 so far as may be and with the necessary modification shall apply to the decisions of the Wage Commission". The words "deemed to be an Award" are significant. The Legislature knew that Award of the Commission otherwise was not covered by the definition of 'Award' given in section 2 of the Ordinance. Therefore, it was said that the decisions of the Wage Commission would be deemed to be an Award. Since the provisions of the Industrial Relations Ordinance had been made applicable to the Award of the Commission under section 38-D, the Award mentioned in section 25-A includes the Award of the Commission and not only the Award as defined in section 2 of the Ordinance. If the provisions of the Industrial Relations Ordinance are held to be not applicable to the Award of the Commission, then section 38-D would become redundant. No Court can declard a provision of law as redundant and law is to be followed as it stands. Since section 38-D makes the provisions of Industrial Relations Ordinance applicable to the Award of the Commission, by no stretch of imagination it can be said that such an Award cannot guarantee a right for the infringement of which a worker may come to the Labour Court. I, therefore, cannot agree with the learned counsel for the appellant that the Award of the Commission does not benefit the respondent and that he could not go to the Labour Court under section 25-A of the Industrial Reiations Ordinance, 1969 for the infringement, of the provisions of the said Award. 8. The last point raised by the learned counsel for the appellant is that the respondent is not a workman as only that employee is covered by the definition of workman as given in section 2(xxviii) of the Industrial Relations Ordinance, 1969, who is in the employment. According to the learned counsel, since the respondent stands terminated and is no longer in service, he is not covered by the definition of workman. The intention of law is to be seen in this respect. For this purpose it is necessary to consider the scheme of the Labour Laws. The preface of the Industrial Relations Ordinance, 1969 reads as under :- "Whereas it is expedient to amend and consolidate the law relating to the formation of trade unions, the regulation of relations between employers and workmen and the avoidance and settlement of any differences or disputes arising between them or matters connected therewith and ancillary thereto ; ' And whereas the national interest of Pakistan in relation to the achievement of uniformity requires central legislation in the matter ; Now, therefore, in pursuance of the Proclamation of the 25th day of March, 1969 read with the Provisional Constitution Order, 1969 and in exercise of all powers enabling him in that behalf the President is pleased to make and promulgate the following Ordinance." This is apparent from the preface of the Ordinance that the intention of the Legislature to promulgate the said Ordinance was the regulation of the relations between the employers and the workmen and to avoid and settle all differences or disputes arising between them. When an
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employee is terminated or dismissed, it does not mean that there remain no difference between such an employee and the employer ; rather this is the real dispute between them. No employee wishes to be terminated or dismissed. It, therefore, cannot be said that such an employee has no difference or dispute with his employer. If the intention of the Legislature had been that a terminated or dismissed person is not a workman and cannot come to the Labour Court then the very purpose for which…
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