1984 PLP 125 (PLC)

2. I have heard the detailed arguments of the counsels from both the sides on the application praying for suspension of operation of impugned order of termination of employment. I have also gone through the reply statement in respect of the stay matter and other relevant material filed by parties. Since I do not want to burden the record, I would take up only one primary and pivotal issue, that is whether severance of relationship as workman and employer has already taken place or not in this case ? If the severance of that relationship has taken place. the status quo ante could obviously not be ordered at this stage in view of Regulation 32 (1) of the ,A N.I.R.C. (Procedure and Functions) Regulation, 1973 and if the relationship still subsists status quo could be ordered to be maintained.

3. A statement of Gulzbagh Rabbani petitioner was recorded on 18th July, 1983 in which he stated on oath that he had not received the impugned letter terminating his services. He stated that till then he had not handed over the charge of his post and in that sense the order had not been imple mented. He stated that the impugned letter dated 9th July, 1983 which had been annexed with his application in original, was obtained from the D. S, Office by his union during his illness. He further stated that he had not handed over the charge of his post. In his charge there was office record and the railway stores including beddings etc. After having made this inquiry in terms of Regulation 32 (2) of the N I R C (Procedure and Functions) Regulations, 1973, 1 had restrained the respondents from implementing the order of termination and fixed the stay matter for confirmation or other wise till the pendency of the complaint after arguments.

4. The claim of the petitioner that he did not receive the impugned letter terminating his services is contested by respondents. They have pro duced a photo copy of a postal registration receipt, dated 10th July, 1983 bearing No. 163 showing that a letter addressed to Mr. Gulzbagh Malik, 40, Nisbet Road Lahore was sent by Registered post. The original letter of termination of service annexed with the petition bears inscription of a tick mark and words "R.A. Due" against the name of Mr. Gulzbagh Rabbani Platform Inspector Grade II R N S P 10 Lahore, 40 Nisbet Road, Lahore, which shows the mode of despatch of the letter. Thus it is in correct that the document which was annexed with the application was obtained by union from the D.S. Office. I have little doubt in my mind that this is the same letter which was sent to him by respondents under postal receipt No. 163 dated 10th July, 1983.

5. The grievance notice under section 25-A was issued on 9th July, 1983. On that date an emergent meeting of the United union of P. R. Workers open Line Establishment (C.B.A.) Lahore is also claimed to have been held to consider the victimisation and high handedness due to trade union activities of the petitioner. This meeting authorised Aftab Rabbani Chief Organiser of C.B.A. inter alia to serve a notice under section 25-A of the Industrial Relations Ordinance on Railway Administration. It was argued for respondents that if the petitioner had not received the termina tion order and until then his services were not terminated then there was little cause to serve the grievance notice and also since the grievance letter specifically mentions, the number and date of impugned letter besides its relevant contents and makes a grievance of its having been issued its service is complete. To meet this point Mr. Aftab Rabbani Labour Representative stated that the grievance notice had been given by the C.B.A which had received the letter of termination of service. This position was untenable, for, if the notice had not been given by the petitioner but by C. B. A., there could be maintained no application under section 25-A and consequently no miscellaneous application. C.B.A. being the representative of workmen does not enjoy any legal status of its own in case of an individual workman in terms of subsection (1) of section 25-A. It cannot serve grievance notices without the consent of aggrieved workman. Thus the notice served by C.B.A. is to be regarded by that of the petitioner or else he has no case.

6. Mr. Asmat Kamal Khan the counsel for the petitioner who argued the case at the later stage stated that on 9th July, 1983 when the notice was given, there was knowledge of termination of service. But the knowledge of termination of service could not be equated to receipt of actual letter of termination of service and legal consequences would flow only on the receipt of actual letter of termination of services. I however do not agree with this view. Since on 9th July, 1983 in his grievance notice served through the C.B.A. the petitioner had held himself out to be the workman whose ser vices had been terminated vide letter No. 220-E/427-IV, dated 9th July, 1983 by his own showing his services will be taken to have been terminated and the service of the letter effected on him. The other argument of the counsel was that until 18th July, 1983 when the application under section 25-A, and instant stay application, were filed, the petitioner, merely, had the knowledge of termination of employment when the stay order was granted in his favour. He therefore continued in employment. This argument has no force, for the original termination of service order was in possession of the petitioner prior to his filing of this application under section 25-A and the instant stay application.

7. Further it is admitted position that the C.B.A. received the im pugned letter of termination. C.B.A. being the representative of the peti tioner, while petitioner holds office of its Joint Secretary (and is at present acting as its General Secretary according to his own showing which is its pivotal office according to the Constitution of the C.B.A.) the service of a letter addressed to the petitioner, on his C.B.A. in the absence of assertion of any dispute or differences with the C.B.A., or within the C.B.A., with the person receiving the letter, constitutes service on the petitioner. Thus I hold that before filing the petition under section 25-A on 18th July, 1983 and the instant application praying for suspension of operation of impugned letter of termination of employment the petitioner had received the impugned letter.

8. The counsel for the petitioner has urged that since the respondents had only produced postal receipt and no acknowledgment due receipt while the petitioner denied the receipt of the termination letter, the service of the letter was therefore not proved. He relied on Gulzar Begum v. Saira Bibi (1972 S C M R 251) and Nawab Din v. Rafiq Ahmad (P L D 1979 Note 94 a; p. 67). The facts of both' these cases are clearly distinguishable. In none of these cases the letter which was denied to have been received was produced and annexed to the) petition by the very party denying its receipt.

9. The next question is as to when does an order of termination of service become implemented ? In my opinion, normally it becomes imple mented as soon as the charge of the post has been relinquished, or, as the case may be handed over in consequence of that order, and not before. The relinquishment of handing over of the charge of a post where charge of store etc. is to be given is, however, an obligation on the part of a workman whose services are terminated. Consequently a termination order would G become implemented, as soon as the workman is discharged, of this obligation, by his employer. If however the workman avoids to relinquish, o hand over the charge, mala fide or, in other words, avoids to discharge his obligation, then, this failure would carry no premium, and confer no right on him, to continue in service etc. (10). In the present case I have been shown a register on which the petitioner had made over the charge of his post on 5th July, 1983 at the end of his working shift as he had to go to the hospital. It is admitted position that each Platform Inspector including the petitioner made over the charge E of his post at the end of his working shift. The counsel for the petitioner states that it was merely the running charge and not the full-fledged charge. This view does not carry any force, for the petitioner, when he was depart ing on leave on 5th July, 1983 for treatment in hospital, could not have retained charge of things entrusted to him as Platform Inspector. He had obviously handed over all things under his charge as Platform Inspector on 5th July, 1983. Further there is nothing as running charge and full-fledged charge. If the full charge were not handed over it would have been so stated. I therefore hold that the charge of the post of Platform Inspector had been made over by the petitioner on 5th July, 1983.

11. The counsel for the respondent has however produced an affidavit by respondent No. 2 which inter alia runs as follows: .2. Mr Gulzbagh Rabbani's services were terminated by order dated 9th July, 1983 which was despatched to him under Registered Acknow ledgment Due post No. 163 dated 10th July, 1983 photostat copy attached and duly received by him. The order is fully implemented and nothing is due to be taken from him either in the shape o charge or the documents." The underlined portion constitutes a valid discharge. In view of this discharge, the plea that as the charge of his post had not been taken from him he therefore continued in service was not available 'to the petitioner.

12. Thus since the order of termination of employment had been implemented and severance of relationship of workman and employer had been completed before 18th July, 1983 the stay order already granted is re- F called and the application for suspension of impugned termination orders 15,. Dismissed. " A. E. Stay application dismissed.