2018 PLP 21 (PLC N)
AURANGZEB Versus SONERI BANK LIMITED through President/Executive Officer and another
| Citation | 2018 PLP 21 (PLC N) |
| Forum / Court | Sindh Labour Appellate Tribunal |
| Bench Members | Justice (R) Ali Muhammad Balouch, Member |
| Parties | AURANGZEB Versus SONERI BANK LIMITED through President/Executive Officer and another |
| Primary Law | Industrial Relations Act (IV of 2008) |
Q1: What are the key laws and sections cited in 2018 PLP 21 (PLC N)?
This judgment primarily cites: Industrial Relations Act (IV of 2008) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2018 PLP 21 (PLC N)?
The case was heard and decided by the Sindh Labour Appellate Tribunal bench comprising: Justice (R) Ali Muhammad Balouch, Member.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2018 PLP 21 (PLC N) (AURANGZEB Versus SONERI BANK LIMITED through President/Executive Officer and another). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Ghulam Murtaza Saryo for Appellant.
- Khaleeq Ahmed for Respondent No.1.
- When respondent No.1 did not redress the Grievance of the appellant, appellant filed Grievance Petition/Application under section 41 of Industrial Relations Act, 2008 and upon notice from the Learned Labour Court the respondent No.1 filed their reply statement. The appellant filed his own affidavit-in-evidence and was subjected to cross-examination by the respondent No.1's advocate where as the respondent No. 1 filed affidavit-in-evidence of Mr. Jaffar Ali son of Muzaffar Ali as their witness and was subjected to cross-examinations by the appellant's advocate.
- Mr. Ghulam Murtaza Saryo, learned Advocate for the appellant and Mr. Khaleeq Ahmed, learned Advocate for the respondent No.1 submitted their synopsis of written arguments. I have gone through the record and proceedings of the case and also perused the written arguments advance by both the learned Advocates.
Headnotes / Summary
S. 41
Sindh Industrial Relations Act (XXIX of 2013), S.48(3)
Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15
Termination of permanent worker
Employee was previously serving in other Bank "K", resigned from service of said Bank of his own accord and joined the employer bank
Being fully satisfied with performance of employee, employer Bank confirmed the service of employee
Services of the employee, however, were terminated without holding any enquiry, on the ground that a complaint was received against the employee from the Bank "K" where he was previously employed that he had been found guilty of misconduct; and was involved in fraudulent loans, criminal breach of trust; and that 'NAB' was investigating the matter
Employer Bank, terminated the service of employee and did not resort to the mechanism provided under S.O.15(4) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968
Grievance application filed by the employee against termination of his service, was dismissed by the Labour Court
Labour Court had failed to appreciate that employee remained in the employment of Bank of "K" for about six years; and after his resignation he served number of organizations
Termination of the employee without any inquiry, itself had shown the mala fide on the part of the employer Bank
Employee never received any letter or notice, either from the Bank "K" his previous employer or from the NAB Authorities
Employer, admitted that there was no complaint against the employee; that employer was satisfied with the performance of the employee and that termination of the employee , was a result of complaint lodged by the Bank "K" (previous employer) against the employee in the National Accountability Bureau (NAB)
Termination of the employee being illegal, based on mala fide consideration, was set aside and his appeal was allowed as prayed
Employer Bank was directed to reinstate the employee in service with all back benefits within thirty days. [Paras. 2, 3, 4, 5, 6, 9, 14, 15 & 18 of the judgment] 2003 PLC 99; 1992 SCMR 1891; 1990 PLC 142; C.P. No.D-864/2012; C.P. No.D-865/2012; 2006 PLC 24; 1999 PLC 302 and 1979 PLC 443 ref.
Judgment & Decree
Standing Order 15(4) is reproduced here as under: "S.O. 15(1) x x x x x x x x x x x x x x x x x x x x x x (2) x x x x x x x x x x x x x x x x x x x x x x x x x x (3) x x x x x x x x x x x x x x x x x x x x x x x x x x (4) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct [within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer] and is given an opportunity to explain, the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and, [the employer shall] institute independent enquiries before dealing with charges against a workman: [Provided that the workman proceeded against may, if he so desires for his assistance in the enquiry, nominate any workman employed in that establishment and the employer shall allow the workman so nominated to be present in the enquiry to assist the workman proceeded against and shall not deduct his wages if the enquiry is held during his duty hours]. (5) x x x x x x x x x x x x x x x x x x" The respondent 1 witness during his cross-examination has admitted in the following manner:-- "It is fact that neither enquiry Officer was appointed nor enquiry was conducted against the Applicant by the Respondent." The learned counsel for the appellant relied upon following judgments and an unreported-judgment of the Hon'ble High Court in C.P. No D-864/2012 and C.P. No.D-865/2012 in which it has been held as under: "From above termination notice it is evident that basis for termination of service was strike said to be illegal under section 139 of Industrial Relations Ordinance, the Ordinance clearly provides mechanism when strike is to be declared illegal. It is not for the employer to himself declare a strike to be illegal. An opportunity of hearing is to be first accorded to the workers who are on strike in order to ascertain whether the strike was illegal. In the case in which no evidence was adduced by the Petitioner the fact that termination letter was based on allegations of misconduct remains undeniable as notice of termination itself contained allegation against the private Respondent and admittedly when the Petitioner has itself treated termination as termination simplicitor it did not resort to the mechanism provided under section 15(4) of the Standing Orders Ordinance, 1968. Once it has come on record that basis for termination was allegation of misconduct then services cannot be terminated without fulfilling the requirement of section 15(4) of the Standing Orders Ordinance, 1968." "2006 PLC 24 "
Ss. 2(xxiii), 25-A & 37(3)
Industrial Relations Ordinance (XCI of 2002), S.48
Employee was served with notice on certain allegations
Employee denied allegations and submitted reply
Enquiry was conducted against employee and at the close of enquiry, lenient view was suggested to be taken against employee, but without hearing him in person and without final show-cause notice, he was dismissed from service Employee, proved to be a workman although he was promoted to Grade II officer, but he was not an independent official, but was subordinate and answerable to his officers keeping second position in concern branch of employer Bank
Employee being a workman, could maintain grievance petition before Labour Court
Labour Court was not justified to dismiss grievance petition of employee holding that he was not workman." "1999 PLC 302 "
S. 25-A
Constitution of Pakistan (1973), Art.199
Constitutional petition
Redress of individual grievance
Respondent, an Assistant Manager of Bank was dismissed from service without holding an enquiry by the Petitioner Bank
Labour Court converted the dismissal into that of retirement and the order was upheld by the Appellate Tribunal
Such a dismissal would have resulted in the permanent attachment of a stigma to the rest of the life of the respondent/employee who might not have been in a position to get any suitable employment anywhere
Such an extreme penalty could not have been imposed by employers without holding an inquiry and affording him a reasonable opportunity of hearing
Orders of Tribunals below were upheld in circumstances." The case of respondent No.1 bank is that termination of appellant was in accordance with terms and conditions of his appointment letter and was with specific reasons but perusal of Standing Order 12 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 reveals that there are subsections of S.O.12 and the same we read as under: "S.O.12 Termination of Employment.
(1) For terminating employment of a permanent workman, for any reason other than misconduct, one month's notice shall be given either by the employer, or the workman. One month's wages calculated on the basis of average wages earned by the workman during the last three months shall be paid in lieu of notice. No temporary workman, whether monthly-rated, weekly-rated, daily-rated or piece-rated, and no probationer or badli, shall be entitled to any notice if his services are terminated by the employer, nor shall any such workman be require to give any notice or pay any wages in lieu thereof to the employer if he leaves employment of his own accord. The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may [take action in accordance with the provisions of section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance. Where the services of any workman are terminated, the wages earned by him and other dues, including payment for unavailed leaves as defined in Clause (1) of Standing Order 8 shall be paid before the expiry of the second working day from the day on which his services are terminated. The services of a permanent or temporary workman shall not be terminated on the ground of misconduct otherwise than in the manner prescribed in Standing Order 15. x x x x x x x x x x x x x x x x x." Perusal of the above law reveals that the termination as provided under Standing Order 12(3) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 must be with reasons, means thereby that the same shall be explicit and cogent and in my humble view in the present case the reasons given by the respondent No.1 Bank, if looked into leads me to the conclusion that termination of service of the appellant was based on complaint received against appellant from the Bank of Khyber, his previous employer, alleging that appellant was found guilty of misconduct and involved in fraudulent loans, criminal breach of trust NAB was investigating the matter, therefore, the same cannot be termed as "explicit" as required under Standing Order 12(3) of the Standing Orders Ordinance, 1968. 1979 PLC 443 "
S. 25-A read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12(3)
Employee having no supervisory powers and working under instructions of another
A workman-to determines his status, main duties and not incidental or minor functions, need consideration." The learned Labour Court has failed to appreciate that appellant remained in the employment of Bank of Khyber and served in that Bank from July, 1995 to August, 2001 and had resigned from service of Bank of Khyber at his own accord and thereafter served number of organizations upto December, 2009, respondent No.1 must have obtained a confidential report as being a practice from the Bank of Khyber before confirmation of service and when the appellant after leaving the Bank of Khyber up to joining the respondent No.1 was cleared all the way, the so-called allegations after a period of 8 years are false and baseless, especially when internal audits, external audits and the State Bank of Pakistan audits must have been carried out but nothing was found against the appellant. It is pertinent to mention here that the service of appellant was terminated without any inquiry which itself shows the mala fide on the part of the Respondent No.1. The appellant never received any letter or notice either from the Bank of Khyber (his previous employer) or from the NAB authorities. Learned Labour Court has also failed to appreciate that respondent No.1, vide letter No.SBL/HRD/0584/03123/2009 dated 26.02.2010 (Annexure P-11 of Affidavit-in-Evidence of Appellant) whereby the respondent No.1 categorically admitted that the respondent No.1 had no complaint against the appellant and was satisfied with the appellant's performance and termination of appellant was a result of complaint lodged by the Bank of Khyber against the appellant in the National Accountability Bureau (NAB), Peshawar the NAB authorities vide their letter dated 11.01.2010 (Annexure A-4 with memo. of appeal) informed the appellant that no enquiry/investigation is/was pending against the appellant. The respondent 1's witness during his cross-examination has admitted in the following manner: "It is fact that Annexure. R/E6 shows that applicant served in the Bank of Khyber from 27.7.1995 to 30.8.2001. It is fact that I have not produced any document which show that applicant was convicted and sentenced by the NAB Court." The respondent No.1 witness during course of his cross-examination has frankly admitted as under: "It is fact that no fault was on the part of the Applicant regarding Respondent bank. It is fact that applicant was bound to perform duties as assigned to him by his supervisor." In view of the aforesaid circumstances I am of the view that termination of appellant was illegal, based on mala fide consideration and the impugned order dated 04.5.2013 is set aside and appeal of the appellant is allowed as prayed. Respondent No.1 Bank is directed to reinstate the appellant physically in service with all back benefits within thirty days from the date of announcement of this decision. HBT/7/SLT Appeal allowed.