P L D 1978 Karachi 302 (PLP)

S. 19(1)‑Termination of employment‑Opportunity of hearing Natural justice, rule of‑Petitioner's services not terminated on any ground of misconduct‑Case one of termination of service seemingly preserved by subsection (1) of S. 19‑No purpose, in circumstances, held, existed for which hearing could have been afforded.‑[Natural justice, principles of‑Industrial dispute. R. F. Viirja for Appellant. Mohsin Tayabally for Respondents. Date of hearing : 19th October 1977. ZAFFER HUSSAIN MIRZA, J.‑Miss Dubash, the petitioner in this Consti tutional Petition seeks to challange the legality of the decision dated 30‑5.19 f4, of the Sind Labour Appellate Tribunal, Karachi, whereby the award passed by the 5th Sind Labour Court. Karachi in favour of the petitioner under section 25‑A of the Industrial Relations Ordinance, 1969 was set aside. The brief facts forming the background of this case are that respondent No. 2 is a Company registered under the Shops and Establishments Ordinance, 1969 (hereinafter referred to as the Ordinance). The petitioner was a permanent employee of respondent No 2 and was serving as the Secretary with the said respondent. It is alleged that on 3‑5‑1972 the petitioner was informed on the telephone that her services were terminated and thereafter she was not permitted to perform hot duties. The petitioner lodged a written protest against the termination of hoe service in the aforesaid manner through a representation to the Manager and also served a grievance notice on her employer on 23‑5‑73. Eventually, upon receiving no response from respondent No. 2 the petitioner moved the Labour Court under section 25‑A of the Industrial Relations Ordinance, 1969. The aforesaid Court by its award dated 24‑11‑73 held that the petitioner being a permanent employee the termination of her services orally and without a written notice as con templated under section 19 of the Ordinance was illegal and ordered her re‑instatement with all back benefits. This award was challengef1 in appeal by respondent No. 2 before the Labour Appellate Tribunal, Karachi who accepts"" the appeal by the impugned order on taking the view that all that the petitioner was entitled to was one month's wages which the respondent No. 2 was prepared to pay. In this view of the matter the Appellate Tribunal came to the conclusion that the application under section 25‑A of the Industrial Relations Ordinance, 1969 did not disclose any guaranteed right under any law, settlement or award which may have been violated and set aside the award with a direction that the petitioner be paid one month's wages by the said respondent. We have heard Mr. R. P. Virji, Advocate for the petitioner and Mr. Mohsin Tayyab Ali. Advocate for respondent No. 2. The main contention advanced in support of the petition is that the order of termination of service of the petitioner is without lawful authority at, no prior opportunity of hearing was given to the petitioner. 1'ne pro vision relevant in this behalf is section 19 of the Ordinance which reads as under :‑ "19. Termination of employment.‑(1) For terminating employment of a permanent employee, one month's notice in writing shall be given either by the employer or by the employee and in lieu of notice, one month's wages calculated on the basil of average of wages earned duping the preceding three months shall be paid. (2) No temporary employee, whether monthly‑rated, weekly‑rated or daily‑rated, and no apprentice shall be entitled to any notice or pay in lieu thereof if his services are terminated, but the services of a temporary employee shall not be terminated as a punishment unless he has been given an opportunity of explaining tire charges levelled against him." The plain reading of the aforesaid provisions shows that a permanent employee's employment could only be terminated with one month's not' in writing or one month's wages in lieu of notice Although the word "and" appears in subsection (1) between the two clauses but the word has been clearly used in disjunctive sense and provides for an alternative situation an therefore, could be construed as " or ". It is now well settled that the conjunctions 'or' and 'and' wherever found necessary can be read one for the other depending upon the consequences intended by the Legislature (P L D 1969 S C A267). There is no other provision in the Ordinance which gurantees to a permanent employee, any other protection against the termination of employment or entitles such an employee to a filed tenure of service. We, therefore, agreed with the interpretation of the Appellate Tribunal that the only condition for termination of the employ ment of such employee is that one month's wages be paid in lieu of notice. The expression "in lieu of notice" used in subsection (1) of section 19 could mean only one thing that an employer could dispense with the service of permanent employee without giving notice in writing and without waiting for the expiry of the notice period and terminate the employment wit immediate effect if he is willing to pay one month's wages. If the word "and" is construed in the conjunctive sense it would obviously lead to the absurd consequence that an employer would be required to serve one month's notice in writing as well as pay one month's wages in lieu of notice. Mr. Virji, however, referred to provisions of subsection (2) of section 19 and strenuously contended that when a temporary employee has been given protection against dismissal by way of punishment without an opportunity of explaining the charges levelled against him, is would be anamolous to deprive the permanent employee or this protection. Counsel, therefore, urged that these provisions must be read into subsection (1) which deals with the termination of employment of a permanent employee. We are unable to accept this submission, for, a Court is not empowered while interpreting a provision of the statute to remove anomalies in the statue and it is well laid down that the Court has to give effect to the plain meaning of the statute irrespective of the hardship that might ensue in doing so. We are not here to question the wisdom of the Legislature in enacting a particular provision of law but the only function of the Court In this regard is to discover the true meaning and intendment of the statute. There is nothing in subsection (1) of section 19 which places an embargo upon the right of the employer to terminate the service of his employee provided that he gives one month's notice in writing or wages In lieu thereof. In any event, it is not the case of the petitioner that her services were terminated by way of punish ment and we find no allegation of mala fide made in the petition against respondent No. 2. The question seems to have been raised in view of the fact that when proceedings were commenced before the Labour Court the respondent served a notice of termination In writing on the petitioner on I7‑5‑1972 informing her that her services were terminated on account of her absence from duty without prior permission since 3‑5‑1972. But in our view, these are subsequent events and the grievance mentioned by the petitioner in her grievance notice was that she was told to leave the office orally on 3‑5‑1972 and, therefore, she was entitled to be re‑instated. In her petition under section 2i‑A of the Industrial Relations Ordinance also the only grievance disclosed is that the petitioner's employment was terminated without an order in writing. We are, therefore, of the view that the petitioner cannot enlarge the scope of her case at this stage to allege that her services were terminated on the ground of' misconduct by way of punishment. It was finally urged by the learned counsel that the action of the res pondent is violative of the rule of natural justice in so far as no opportunity of hearing was afforded to her. We are unable to accept this contention as in our view there is no occasion in the facts of this case fir application of the rule of natural justice. As stated earlier petitioner's services were not terminated upon any ground of misconduct and consequently, there were no purposes for which hearing could have been afforded. This was a simple case of termination of service which might seem to have been preserved by subsection (1? of section 19 of the Ordinance. Thus we agree with the Appellate Tribunal that there was no right guranteed under law which petitioner could invoke for the purpose of section 25‑A of the I. R. O. We are in entire agreement with the view taken by the learned Appellate Tribunal that the only obligation of the employer was to give one month's notice in writing and in default of such notice the employer was liable to pay one month's wages in lieu of notice. Notice has been aptly said to be a period of time which must elapse between announced intention to terminate and the actual termination of the contract. The law, therefore, provides that if the employer does not wish to retain the employee in service for the duration of tire period which must elapse between the announcement of intention to terminate and the actual termination of employment, then the employer must pay the wages for such period. For the foregoing reasons we find no force in this petition. which is accordingly dismissed with no order as to costs. I. MAHMUD, J.‑I agree. S A. H Petition dismissed.