1979 PLP 131 (PLC)

Registered A/D. Mr. M. M. Islam, Medical Representative, Heefa House, 60 4, Upper Sind Colony, Dada Bhai Nauroji Road, Karachi. Sub: Termination of services Dear Sir, We regret to inform you that your services are no longer required by us hence terminated with immediate effect. You are advised to collect your legal dues including one month's pay in lieu of notice, from the office on any working day. Yours faithfully, for Opal Laboratories Ltd., (Sd.) (Sd.) Gen. Manager Admn. Officer/Pakistan.

3. Aggrieved by this `the appellant served a grievance notice and approached the Labour Court. The application was resisted and it was pleaded that the appellant was not a workman as he was a Sales Representative and further he had received all the dues after the termination of the service, and, therefore, he was no longer in the employment of the respondent and, therefore, the application under section 25‑A, Industrial Relations Ordinance was not maintainable.

4. Evidence was tendered by both ape parties. On the assessment of the evidence the Labour Court upheld the pleas taken on behalf of the respondent and dismissed the application. Aggrieved by this, the present appeal had been filed.

5. The first ground which was relied upon by the Labour Court was that the appellant was a Salesman and, therefore, not a workman, with the result that the application was not maintainable. This view was based on the definition of the term "workman", provided by the West Pakistan (Standing Orders) Ordinance. In this connection it may be pointed out that until recently this view prevailed but it was altered and must be deemed to have been set rest by the unreported decision of the Supreme Court in In re: Shabaz Khan v. Sind Labour Court and others, Civil Appeal No. Kar‑19 of 1976, decid ed on 30th June, 1976 in which it was clearly laid down that the definition as provided by Standing Orders Ordinance could not be taken under consideration but any person who was a workman as defined by Industrial Relations Ordinance could have recourse to the provisions of section 25‑A, Industrial Relations Ordinance. It was conceded on behalf of the appellant before me that the appellant, though, not a workman under Standing Orders Ordinance was a workman as defined by Industrial Relations Ordinance. Thus the ground relied upon by the learned Labour Court cannot be upheld.

6. The next ground that was taken by the: learned Labour Court was that the appellant had received two cheques for the full amount that was due to him and this was in full and final settlement of the account. I am unable to accept this agreement. The acceptance of the cheques was long after the dismissal of the respondent. As pointed out the letter of dismissal is dated 30th January 1976 whereas the cheques were sent to the respondent on 19th February 1976. Before the receipt of the cheques a grievance notice dated 6th February, 1976 had been sent to the respondent complaining against the illegal termination of the service. Thus it cannot be said that by mere acceptance of the cheques the right to move the Court against the illegal termination was waived. It was the case of the appellant that he had accepted the cheques under protest. To this it was remarked by the learned Presiding Officer that the appellant did not mention this fact either in the petition made under section 25‑A or Industrial Relations Ordinance or in his affidavit. This is a clear misstatement of fact. I have gone through the petition made under section 25‑A, Industrial Relations Ordinance and it was clearly mentioned in para. 8 of the application that he had received the dues by post under protest. In the affidavit, he clearly stated that he adopted the: facts stated in the application. It is not understood how in view of these clear, statements the learned Presiding Officer proceeded to say that this fact was not mentioned in the aforesaid documents.

7. Now I come to the illegality of the termination of the service. I have reproduced the letter of the termination. According to Standing Order No. 12(3) the service of the workman shall not be terminated except by an, order in writing which shall specifically show the reasons for the action taken. Although, the termination of service was in writing, yet no reason was given and, therefore, Standing Order No. 12(3) was violated, with the result that the termination of the service was illegal and cannot be supported. Admittedly, the appellant was a permanent workman and his service could not be terminated four any reason other than misconduct without one month's; notice. No such notice was given. It is not the case of the respondent that the service of the appellant was terminated on account of retrenchment. Admittedly, some persons junior to him were still in the employment of the respondent.

8. In result I allow the appeal and set aside the order passed by the Labour Court as well as the termination of the service and order re‑instatement with full back benefits. Appeal allowed.