2017 PLP 215 (PLC)

SHAHID MUBEEN, J.

By way of this constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 the petitioner has challenged the legality and validity of judgment dated 10.08.2010 passed by respondent No.1/learned Punjab Labour Appellate Tribunal, Lahore whereby the judgment dated 11.05.2009 passed by respondent No.2/learned Punjab Labour Court No.V, Sargodha, was upheld.

2. Tersely, the facts relevant for the disposal of this constitutional petition are that the petitioner was appointed as Cashier in the respondent-Bank. He performed his duties with the respondent Bank till the year 2007 when on 17.10.2007 he received a relieving order by the Manager whereby he was transferred/posted at Naushera Branch at Khushab vide order dated 12.10.2007. Being aggrieved by the said relieving order he approached the Regional Manager Office where he was advised to go on leave already applied by him before issuance of relieving order. When the earlier leave was going to expire, the petitioner submitted another leave application on 05.11.2007 for four months w.e.f. 06.11.2007 to 05.03.2008. On 19.02.2008 a show-cause notice was served upon the petitioner for his unauthorized absence. He replied to the said show-cause notice. The respondent-bank after inquiry vide impugned order dated 29.04.2008 terminated the petitioner's services. The petitioner filed a grievance petition before respondent No.2 which was dismissed vide impugned judgment dated 11.05.2009. Being dissatisfied with the said judgment, the petitioner preferred an appeal before respondent No.1 which was disposed of vide impugned judgment dated 10.08.2010 whereby the petitioner's termination order was converted into that of compulsory retirement. Hence, the present petition.

3. Learned counsel for the petitioner contends that basic order of transfer dated 12.10.2007 was passed by incompetent authority inasmuch as such order should have been passed by Group Executive HR Organizational Development and not by Staff Officer and VP/RGM OPSS; that he has not been served with second show cause notice which is illegality; that he submitted leave application which was not adhered to by the respondent-bank which has caused great loss to the case of the petitioner; and that the impugned judgments of the courts below are the result of misreading and non-reading of oral as well as documentary evidence available on the record.

4. On the other hand, learned counsel for respondents Nos.3 to 5 supported the impugned judgments passed by learned Punjab Labour Court No.V, Sargodha as well as learned Punjab Labour Appellate Tribunal, Lahore.

5. Heard. Record perused.

6. I have gone through the grievance petition in which the contention of learned counsel for the petitioner that his transfer order dated 12.10.2007 was issued by incompetent authority, has not been raised. The petitioner has also not agitated the same in notice under Section 46 of the Industrial Relations Ordinance, 2002. He has not stated this fact in his examination in chief as well. He has also not agitated the same in the memo. of appeal preferred before appellate tribunal, therefore, this ground cannot be agitated for the first time before this Court.

7. The petitioner has failed to plead or raise specific ground qua his contention referred to above from the very inception of the case, hence, he was precluded by law to agitate the same as it is also settled law that no litigant can be allowed to build and prove his case beyond the scope of his pleadings. The point which was not taken before lower courts cannot be raised before this Court. New point involving investigation of facts cannot be taken up at this stage. It is established principle of law that party cannot be permitted to raise contention involving inquiry into the facts for the first time before High Court. Had the petitioner raised afore noted plea before Labour Court that would have been answered by the respondent-bank in their reply explaining their position about competency of the officer who has passed the order dated 12.10.2007. Reference may be made to the cases reported as "Muhammad Iqbal v. Mehboob Alam" (2015 SCMR 21) and "Punjab Seed Corporation through Managing Director and another v. Labour Court No.9, Multan through Presiding Officer and 2 others" (2015 PLC 232).

8. Even otherwise, simple filing of application for leave does not absolve the petitioner from his duty to pursue the same. It will not be out of place to mention here that mere submission of application for leave by the petitioner to the respondent-bank against transfer order does not mean that the same has been granted in his favour. The petitioner should have himself inquired about the status of application for grant of leave. He even did not bother to contact respondent-bank himself or through his agent to know as to whether leave has been sanctioned or not. After transfer, the petitioner could not stay at a place of his own choice unless operation of the transfer order has been stayed which was not the position in the case in hand. If this practice is permitted then it will give license to every employee to file representation against transfer order so as to stay at a place from which he did not want to move, as the same would create administrative chaos. The petitioner has not produced on record any order from the competent authority whether his leave has been sanctioned or not. The reasons provided by the petitioner that he has to look after his ailing mother and minor children is not a valid ground for not adhering to the transfer order dated 12.10.2007 whereby he was posted at Noushera.

9. The services of the petitioner were terminated by the competent authority on account of his absence from duty. In this regard, in order to prove his case petitioner appeared as PW-1 and reiterated the contents of grievance petition. However, in cross-examination he categorically admitted that he has not joined the duty at Naushera where he was transferred/posted. This absence from duty of the petitioner is not tolerable while in service. The absence whether avoidable or unavoidable was the sole headache of the official but so far as the respondent-bank is concerned, it cannot afford the luxury of the absence from duty on the part of the employees. From the evidence available on record, it is clear that petitioner never joined his duty where he was transferred. The learned Appellate Tribunal converted penalty of termination from service into compulsory retirement by taking a lenient view.

10. In the afore-noted facts and circumstances of the case this Court is of the considered view that petitioner has not been able to make out a good case and it can be held that when an employee would disobey orders of employer in respect of his transfer, no option would be left for the employer except to proceed against him and award penalty in accordance with law.

11. The contention of learned counsel for the petitioner that second show cause notice has not been given to him which has caused great prejudice to his case is of no significance as laid down by the Hon'ble Supreme Court of Pakistan in case law tilted as "Dawood Cotton Mills Ltd. v. Guftar Shah and another" and Fazal Shafiq Textile Mills Ltd. v, IV Sindh Labour Court and another" (PLD 1981 SC 225).

12. The findings of learned Punjab Labour Court No.V, Sargodha as well as learned Punjab Labour Appellate Tribunal, Lahore are concurrent, therefore, do not call for any interference by this Court. This Court cannot interfere into the concurrent findings of facts of the learned Punjab Labour Court No.V, Sargodha as well as learned Punjab Labour Appellate Tribunal Lahore recorded after due assessment of evidence as a Court of appeal. Reference may be made to the case law reported as "Ghulam Muhammad and another v. Mst. Noor Bibi and 5 others" (1980 SCMR 933). The relevant portion of the judgment is reproduced herein below:- "we agree with the view taken by the High Court that it could not in its limited constitutional Jurisdiction interfere with the concurrent findings against the petitioner-departments on what was essentially a question of fact." Further reference may be made to the cases reported as "Allah Ditta v. Ahmed Ali Shah and others" (2003 SCMR 1202) and "Mst. Farah Naz v. Judge Family Court, Sahiwal and others" (PLD 2006 Supreme Court 457).

13. Learned counsel for the petitioner has failed to point out any illegality and jurisdictional defect in the impugned judgments of the learned Punjab Labour Court No.V, Sargodha as well as learned Punjab Labour Appellate Tribunal, Lahore.

14. Sequel to the above, this writ petition being devoid of any force is dismissed and the judgments dated 11.05.2009 and 10.08.2010 passed by the learned Punjab Labour Court No.V, Sargodha as well as learned Punjab Labour Appellate Tribunal, Lahore, respectively are upheld. No order as to cost. ZC/Z-11/L Petition dismissed.