1976 PLP 507 (PLC)

Nemo for Respondent. Date of hearing: 12th April 1976. This is an appeal against an order dated 10-3-1976 of Punjab Labour Court No. 1, Lahore passed under section 2S-A of Industrial Relations Ordinance,1969.

2. Sarwar Masih, appellant, who was the permanent employee of Chand Dying and Finishing Industry, Lahore, respondent, alongwith some other employees on 24-5-1975 criminally tre3passed into the factory and manhandled one Farooq Ahmad partner of the respondent firm and extorted a sum of Rs. 3,000 from his pocket. They also took away some cloth belonging to the customers laying in the factory. Accordingly a case under sections 392/452/505, P. P. C. was registered against them at Police Station Shahdara. The appellant attended the factory on 7-6- 1975. He was charge-sheeted and was directed to attend the inquiry on 12-6-1975. He failed to turn up on the date fixed, and so ex pane inquiry was conducted against him and as a result thereof he was dismissed from service on 13-6-1975. Aggrieved by the above order he filed a petition under section 25-A of Industrial Relations Ordinance, 1969 praying that since no notice of inquiry had been issued to him, be should be re-instated with back benefits. The respondent not only resisted the petition on merits but also raised preliminary objection that since only 8 workers were employed in the factory, the appellant had no locus standi to file the petition in respect of aright guaranteed or secured to him under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The learned Labour Court after recording evidence came to the conclusion that the number of employees, employed in the respondent's factory were much less than twenty, therefore, provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were not applicable and dismissed the petition.

3. Aggrieved by the above order Sarwar Masih appellant preferred this appeal, which was fixed for hearing on 12-4-1976. A notice had already been sent to the respondent for that date, but nobody on his behalf turned up. So ex parte proceedings were ordered against him. Ex parse arguments were heard and the order was reserved.

4. The learned counsel for the appellant contended that the appellant had brought the petition in respect of a right guaranteed or secured to him by or under section 19 of the West Pakistan Shops and Establishments Ordinance VIII of 1969 and not under the Standing Orders Ordinance. Section 19 reads as follows :- "Termination of Employment.-(1) For terminating employment of a per manent 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 basis of average of wages earned during 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 temporary employee shall not be terminated as a punishment unless he has been given an opportunity of explaining the charges levelled against him."

5. From the above it is clear that in the case of termination of services of permanent employee no opportunity is required to be given to him to explain the charges levelled against him, but in the case of a temporary employee his services cannot be terminated as a punishment unless he has been given an opportunity of explaining the charges levelled against him. The learned counsel for the appellant, however, argued that the same protection must be extended to a permanent employee, who stands on a higher footing. This argument has no force because if the Legislature had intended to give the same protection to a permanent employee, it would have done so In the present case, however, I find that the appellant was given the charge sheet and was directed to attend the enquiry on 12-6-1975, but he failed to turn up and therefore it cannot be said that no opportunity was given to him to explain the charges levelled against him.

6. According to section 19(1) of the said Ordinance if no notice in writing has been given by the employer for terminating the services of a permanent employee, he is only entitled to one month's wages and not re-instatement. I am fortified in this view by the judgment of the Sind & Baluchistan High Court in the case, National Art Press, Karachi v. Bundoo Khan and another (P L D 1976 Kar. 177), wherein it was observed :- "The violation of section 19 of the West Pakistan Shops and Establishments Ordinance, 1969 would give rise only to the payment of compensation to the respondent to the extent he was entitled under law. At the very inception the requirement of services of one month's notice could be avoided by making payment of one month's salary. The legal position is that when a statute prescribes a mode to do a particular thing in a particular manner and also lays down penalty or consequences for none-compliance with that mode then the action in law would remain confined only to the penalty or consequences and would not normally exceed that limit. In the instant case the law provides compensation in such cases where one month's notice for termination of services was not given. Therefore, the action against the petitioner would be confined only to the extent of compensation by ordering payment of one month's salary which they should have paid in the first instance. The petitioner can by no stretch of argument be asked to re-instate the respondent in service. The intention behind legislating section, 19 of W. P. Ordinance, 1969, definitely was that no surprise should be given to an employee in case of termination of his services. On the other hand he should be given sufficient opportunity by way of service of one month's notice to find out any other employment for himself and in case no notice was served upon him one month's salary should be paid to hurt so that he may be able to sustain himself at least for one month during which period he is normally expected to find out an employment for himself. This being the intention of the Legislature the petitioner cannot be penalized by imposing upon him an order that he should re-instate the respondent in service and pay him all back benefits. If that is done it would be against the intents and purposes of the Statute."

7. In the present case one month's notice was not given to the appellant before his services were terminated. Therefore, in lieu of notice, he is entitled to one month's wages.

8. I, accordingly, partly accept the appeal, set aside the order of the learned Labour Court and direct the respondent to pay one month's wages to the appellant.