2008 PLC 381 (PLP)

SYED HAMID ALI SHAH, J.

Brief facts giving rise to this appeal are that the appellant was appointed as motor vehicle driver in the Main Branch of Muslim Commercial Bank at Mianwali in the year 1982. He continued his employment until 6-4-2002, when the respondent-Bank under a retrenchment scheme terminated his services along with other 210 Drivers. The appellant challenged his termination by filing a grievance petition under section 46 of the Industrial Relations Ordinance, 2002. The applicant assailed his termination on nine various grounds Respondents Nos.1 to 4 contested the matter and after recording evidence, Labour Court-V Sargodha dismissed the grievance petition, on 21-7-2004, hence this appeal.

2. Learned counsel for the appellant has argued that as per the retrenchment scheme (Exh.R/9), the Drivers having completed 25 years of service or more, were entitled to the option as to their retrenchment, which was to be conveyed through letter of retrenchment so that a terminated employ may exercise the option within 30 days of the date of his retrenchment. It was submitted that the letter of retrenchment dated 4-4-2002 (Exh. R/2) reveals that according to the policy of retrenchment the appellant who was performing his duty with the Executive was, not liable to be terminated under the retrenchment scheme. Learned counsel has argued that the respondent-Company has violated the provisions of Standing Order 11-A and terminated the services of the appellant without the permission of the Labour Court. The appellant has not been conveyed through the letter of retrenchment any option, which the appellant was entitled to exercise within 30 days, therefore, the letter of termination is illegal. Retrenchment scheme pertained to those Drivers who were performing their duties with the Executive and the appellant being a Driver on general duty, was not liable to be terminated under the retrenchment scheme. It was vehemently argued that the retrenchment scheme has not been approved by the Board of Directors of the Respondent Bank, therefore, the scheme has no sanctity of law. It was emphasized that termination of an employee on the ground of reorganization without a valid resolution of the Board of Directors has been held illegal in the case reported as Pearl Continental Hotel Karachi v. Akbar Ali Khan and another 1997 PLC

572. Learned counsel further argued that the appellant had attacked his termination on nine different grounds but the learned Court has not dealt with each ground separately with proper reasoning. It was argued that the retrenchment scheme can be enforced only when the company is suffering froth losses. While referring to the evidence and admission of R.W.1, the learned counsel has submitted that the Bank was earning profit, therefore, there was no necessity or justification for the retrenchment scheme. Learned counsel has argued that the scheme was announced without seeking any consent from the affectees. Learned counsel while placing reliance on the case of General Manager National Radio Telecommunication Corporation Haripur v. Muhammad Aslam and 2 others 1992 SCMR 2169 contended that the mere acceptance of legal dues by an employee does not amount to his waiver, so as to estop him from challenging the order of his dismissal. Learned counsel has lastly submitted that the impugned order suffers from the defect of misreading and non-reading of evidence and the Court has passed the impugned order without following the dictum of law laid down by the superior Courts.

3. Learned counsel for the respondents, on the other hand, has submitted that the retrenchment scheme was duly approved by the Board of Directors of the respondent Bank in its meeting dated 29-3-2005 (Exh.R/11). Adds that the scheme (Exh.R/11) relates to the retrenchment of 210 Drivers working in the establishment of the respondent without any exception. Learned counsel has argued that the retrenchment is not a punishment and while submitting so referred to Zeal Pak Cement Factory Ltd., Hyderabad v. The Chairman, West Pakistan Industrial Court, Lahore and others PLD 1965 SC

420. He has referred to the case of United Bank Ltd v. Shamim Ahmed Khan and 41 others PLD 1999 SC 990 to contend that employer is in fact the sole judge of the commercial consideration in respect of the retrenchment scheme. Standing Order 13 of the West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance 1968 was referred, wherein the employer has the option for the retrenchment and the only limitation is to relieve the employees who were last recruited person i.e. from lower order. He then contended that no violation of Standing Order 13 has been made as total employees in the category of drivers, establishment of the respondent-Bank were retrenched.

4. Heard learned-counsel for the parties and examined the record.

5. Perusal of the record reveals that the Board of Directors of the respondent establishment approved in its meeting dated 29-3-2002, the separation scheme in respect of retrenchment of Drivers and authorized the President to implement the scheme. The resolution of the Board along with letter dated 5-6-2002 is Annexure "R/II'. The separation scheme (Exh.R/9) has been perused wherein the Drivers having completed 25 years or more in service were given' an option. The perusal of the relevant para. reveals that this option is with regard to the Post Retirement Benevolent Fund Grant and Medical facility. The employees were given an option either to receive post-retirement Benevolent Fund Grant and Medical facilities as per rules or in the alternative an amount equal to 10 years normal Post-Retirement Medical facility presently available to retiring employees In lumpsum, in advance at the time of settlement of dues as a final payment. No option was available to the Drivers in the establishment of the respondent, either to remain in service or to take 10 years Post-Retirement Benefits. The argument of the learned counsel for the appellant in this respect have no force. The question whether the retrenchment scheme was beneficial, justiciable and was announced within the parameters of law and the rules, was considered by the National Industrial Relations Commission Karachi in Case No.4-A (122) of 2001-K and 24-(122) of 2002-K. The Commission in its order dated 15-3-2003 has held that the respondent-Establishment was within its rights to reorganize the institution and to retrench the employees. The petitions before NIRC were dismissed having been filed without any cause. The said order remained unchallenged. The questions have been rightly resolved by a competent forum and the Labour Court has followed the decision, in its impugned judgment.

6. For the foregoing, I do not see any merit in this appeal and the same is dismissed, without any order as to costs. H.B.T./F-21/L Appeal dismisse