1978 PLP 369 (PLC)

This is an appeal against, the decision dated, 24‑6‑1977 of Punjab Labour Court No. 2, Lahore.

2. This case has a chequered history, Mohammad Haleem Chohan, respondent was appointed as a Junior Clerk ride order dated 1 7‑2‑1964. His services were terminated with effect from 19‑5‑1965 vide order Exh. P‑ E dated 31‑5‑1966. He made representation ‑ to the department and also filed a petition before the Labour Court, which was rejected on 27.6‑1967. As a result of his representation he was re‑instated with immediate effect by the department ride order Exh. D‑G dated 2.9‑1972 with the condition that the intervening period i.e. from the date of termination of his services to 31st August 1972 would be treated as extraordinary leave, not counting towards service. Extraordinary leave is defined in rule 102 of the National Bank of Pakistan (Staff) Service Rules, 11153. The said rule reads as under: Extraordinary leave may be granted to an employee at the discretion of the competent authority when no ordinary leave is due to him. Save in exceptional circumstances the duration of Extraordinary leave shall not exceed 3 months on any one occasion and 12 months during the entire period of an employee's services: Provided that the competent authority will have power to treat the period of absence without leave as Extraordinary leave.

3. On the aforesaid condition he joined service on 4‑9‑1972 and again started making representations against the conditions of his re‑instate ment. On 20‑9‑72 he made representation Exh D‑H to the Department, which was rejected on 4‑10‑1972 vice Exh. D‑J. Thereafter, he made a further representation Exh. D‑K dated 20‑10‑1972, praying that the period from 19‑5‑1966 to 31‑8‑1972 may very kindly be counted towards his service and net treated as Extraordinary leave. It was further prayed that he be allowed all the benefits, emoluments and amenities for the said period, treating him as on duty for the whole of the said period. The Department, vide reply Exh. PW‑1/2 dated 4‑12‑1972 rejected his representation. The said reply was received by the respondent on 21‑2‑1973 Thereafter, he served a grievance notice on the Management on 28‑4‑1973 through an Advocate Mr. Hamid Mirza. The reply to the grievance, notice was given by a counsel of the Bank on 11‑5‑1973, rejecting his representation.

4. The respondent, thereupon, filed a petition under section 25‑A of Industrial Relations Ordinance, 1969 before the Junior Labour Court which vide order dated 18‑11‑1975 rejected the petition on the ground that the grievance notice was not competent as it was given by a lawyer and not by the respondent himself.

5. Against the above order, the respondent filed an appeal before the Punjab Labour Court No. 1, which accepted the appeal and remanded the case back to the Junior Labour Court vide order dated, 14‑5‑1976 for decision on merits. By that time Junior Labour Courts were abolished and so the Labour Court itself recorded the evidence. After that this case stood transferred from Punjab Labour Court No. 1 to Punjab Labour Court No. 2 on account of change in territorial jurisdiction, Punjab Labour Court No. 2 partly accepted the petition by making following observations: "In view of what has been discussed above I direct that period from 19‑5‑66 to 2‑9‑72 in the service of the petitioner should be counted towards his service. He is not entitled for the wages of intervening period under rule 1;03 and for the reason that he did not work for that period. Upshot of this discussion is that his period of absence from duty would not affect his continuity in service."

6. Aggrieved by the above decision, National Bank of Pakistan through Deputy Managing Director and Vice‑President, appellant has preferred this appeal. The respondent also preferred cross‑objection, praying that the impugned decision be modified to the extent that he be given all back benefits for the entire intervening period from 19‑5‑1,966 to 2‑9‑1972.

7. The learned counsel for the appellant raised the following conten tions. (1) That when the respondent joined service after re‑instatement, he accepted the terms and conditions as laid down in the order of re‑instatement Exh. D‑G dated 2‑9‑1972 and as such had no locus standi to file a petition under section 25‑A of Industrial Relations Ordinance, 1969. (2) That the petition under section 21.‑A was hopelessly barred by time. (3) That the Labour Court had erred in applying rules 102 and 103 to the respondent, who was not in service of the Bank, because the said Rules are applicable only to person, who are in service of the Bank. Contention No. 1.-In this connection it will be convenient to reproduce order of re‑instatement, Exh. D‑G. dated 2 9‑1972 and the acceptance letter of the respondent Bah. PW‑1/3 dated 4‑9‑1972. Bib. D‑G reads as under: "In super session of this office Staff Order No. ESTT. 18/(3/A/ 11762 dated 19th May 1966, it has been decided to re‑instate Mr. Muhammad Haleem Khan, Ex‑Junior Clerk, NBP/Bahawalpur branch in the Bank service with immediate effect. The intervening period i e. from the date of termination of his services to 31st August 1972, has been treated as Extraordinary leave not counting towards service. He has been posted to WAPDA Branch. Lahore in the same capacity. He is, therefore, directed to report at WAPDA Branch, Lahore on 4th September 1972 (F. N.) positively." Exh. PW‑1/3 reads as under r‑‑ "1n obedience to Staff Order No. ESTT/III/CONF/2191 dated 2nd September 1972 I the undersigned beg to report for duty today as on 4th September 1977 (F. 1V.) positively." It may be mentioned here that when the respondent vas re‑instated on 2‑9‑1972, he had no legal right to be re‑instated. By the acceptance letter be bad made the Bank believe that he had accepted the terms end conditions of the re‑instatement letter and as such he cannot now complain against them. In the case, Jitendraral K. Oza v. Saurashtra State (A I R 1954 Sura. 90) it was held that an applicant taking advantage and benefit under an order cannot complain against that order.

8. In the cast of Nidamarthu Bulasurya Bheemaraju v. Changati Mruiyanjayudu and another (A I R 1931 Mad. 354) it was observed: "If a person having a right, and seeing another person about to commit, or in the course of committing an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its being committed, he cannot afterwards be heard to complain of that act"

9. In the case, Sishu Bala Ghose and another v. Profullya Chandra Mondal and others (P L D 1962 Dacca 490) it was observed: "Although both the transfer and the agreement to transfer a reversionary interest are void, yet a reversionary may be estopped from claiming the reversion by his conduct if he has consented to an alienation by a widow or other limited heirs."

10. In the case, Baroness Wilhelimine Yon Maltazan (German National) v. Collector of Customs, Visakhapatnam (A I R 1958 Andh. Pra. 122) it was observed: "Where the provisional assessment was made a1 the instance of the petitioner's husband though such a provisional assessment was not permitted by the provisions of the Sea Customs Act, yet when the petitioner's husband has taken advantage of the same, the petitioner cannot, later on turn round and challenge it."

11. In the instant case the respondent, having accepted terms and conditions of the re‑instatement letter by joining service, he cannot approbate and reprobate at the same time. The contention of the learned counsel is therefore, upheld.

12. In view of the above it will not be necessary to consider the other contentions raised by the learned counsel.

13. I, accordingly, accept the appeal, reject the cross‑objection, set aside the decision of the Labour Court and dismiss the petition of the respondent filed under section 25‑A. of Industrial Relations Ordinance, 1969.