KHALID MEHMOOD vs STATE LIFE INSURANCE CORPORATION OF PAKISTAN and others

ORDER

MAQBOOL BAQAR, J.---The appellant, through the instant appeal, has assailed the judgment dated 11.1.2012, whereby a learned Single of the Lahore High Court, has allowed the writ petition filed by the respondent-Corporation, challenging the order dated 15.7.1991, whereby Punjab Labour Appellate Tribunal, Lahore dismissed in limine the respondent-Corporation's appeal against the judgment of the Punjab Labour Court, in terms whereof the present appellant was ordered to be re- instated to his post in the respondent-Corporation, who was appointed as Junior Office Assistant on 30.10.1989, and was in terms of Office Order No,P&G/P0/187/90 dated 21.6.1990 (page 80 of the paper book) confirmed as such, was through letter dated 28.11.1990 terminated, without assigning any reason. The termination was challenged by the appellant before the Punjab Labour Court No,6, Rawalpindi. The Labour Court vide order dated 15.7.1991, ordered reinstatement of the appellant. The respondent-Corporation challenged the said order before the Punjab Labour Appellate Tribunal, but failed, and their appeal was thus dismissed by the Tribunal through judgment dated 12.8.1991.

The said order was impugned by the respondent-Corporation by filing Writ Petition before the Lahore High Court, which was disposed of on 18.11.1998, directing the parties to approach the Service Tribunal. The Service Tribunal non-suited the respondent-Corporation on the basis of the pronouncement of this Court in the case of Muhammad Mubeen-usIslam v. Federation of Pakistan (PLD 2006 SC 602). The respondent-Corporation thus approached the High Court once again. The learned High Court whilst partially accepting the respondent-Corporation's petition held that , in view of the appellant having accepted his reinstatement with back benefits, is not entitled to the same.

2. The learned counsel for the appellant submitted that since the Labour Court as well as the Labour Appellate Tribunal has held the order of termination of the appellant's service as illegal, as having been made without any reason or justification and/or disclosing any in the termination order, the appellant, in terms of this Court's judgment in the case of Ali Nawaz v. Pakistan Railway through Chairman/Secretary and others (1999 SCM R 1873), is legally entitled to back benefits for the period intervening between the date of termination i,e, 28.11.1990 and up to the date of his reinstatement, being 04.4.1994. He further submitted that the appellant at the time of his reinstatement has not given any undertaking not to claim any back benefits from the respondent- Corporation. He submitted that the appellant's signature were obtained on the charge assumption report which he signed under protest, and in the compelling circumstances, the appellant having remained out of job for a long period of about 4-1/2 years, and the appellant and his family were suffering starvation.

3. On the other hand learned counsel for the respondent-Corporation submitted that respondent- Corporation has committed no illegality in terminating the services of the appellant. Such termination was made in terms of Regulation 22(I)(a) of the State Life Employees (Service)

Regulations, 1973. He submitted that the appellant having accepted the terms and conditions of his reinstatement through his undertaking/joining report dated 04.4.1994, cannot now turn around and seek payment of back benefits in violation of his undertaking. The learned counsel submitted that the appellant's claim is also hit by the principle of acquiescence and waiver. However, in the concise statement filed on behalf of respondent-Corporation, it has been additionally submitted that since the appointment of the appellant was made without any advertisement, interview, and also without any selection process, and was made simply in compliance of the order of the concerned Federal Minister, and since this Court in the case of Syed Mubashir Raza Jaffri and others v. Employees Old Age Benefits Institutions (E0BI) through President of Board, Board of Trustee and others (2014 SCM R 949), declared all such appointments to be without lawful authority and of no legal effect, the services of the appellant stood terminated in view of the above judgment. The termination of the services of the appellant cannot therefore be termed as illegal to enable the appellant to claim back benefits.

4. Admittedly the appointment of the appellant was confirmed on 21.6.1990. His services were terminated without assigning any reason whatsoever, which termination was found illegal by the Labour Court as well as by the concerned Labour Appellate Tribunal. Regulation 22(I)(a) of the State Life Employees (Service) Regulations, 1973, relied upon by the respondent-Corporation for appellant's termination without assigning any reasons, has been rightly held by the appellate Tribunal to be against the provisions of Standing Order 1 of Standing Ordinance, 1968. In terms of Standing Ordinance 1986, a person who has satisfactorily completed the probation period of 90 days, and is employed' against a permanent post likely to last for more than nine months, becomes a permanent employee, and in terms of Standing Order 12(3) of the Standing Ordinance, 1968, the services of a permanent employee can be terminated only by giving explicit reasons. The appellant's termination is also in clear violation of the judgment in the cases of Muhammad Ashraf Tiwana v. Pakistan and others (2013 SCM R 1159) and Pakistan v. Public at Large (PLD 1987 SC 304).

In the first of the cited judgment, this Court declared clause 3(1) of Chapter II of the SECP Service Rules (HR Handbook), which allowed for termination simpliciter (without cause) of employees of SECP, as ultra vires of the Constitution, and therefore a similar regulation relied upon by the respondent-Corporation is of no avail in portraying the appellant's termination as valid and legal.

As regards the charge assumption report, relied upon by the respondent-Corporation to deny the back benefits to the appellant, it may be noted that obtaining such a nature of consent by the employer from the employee has been clearly deprecated by this Court. Reliance in this regard may be placed on the case of Ikram Bari and 52 others v. NBP (2005 SCM R 100). Relevant portion whereof is reproduced here under:- "... An employee being jobless and in fear of being shown the door had no option but to accept and continue with the appointment on whatsoever conditions it was offered by the Bank. In the case of Pakistan v. Public at Large (PLD 1987 SC 304), it was contended before the Shariat Appellate Bench of this Court that the provisions of law impugned therein amounted to a contract between the Government and the civil servant thus they involved his consent. It was observed that in fact it was not in the nature of a free consent between the agents. On the one hand, State power was projected in the form of a Statute and on the other, the civil servant had no choice of a bargain on those provisions when joining the service. He could not get it changed. In Habibullah v.

Government of the Punjab and 5 others (PLD 1980 Lahore 37), it was held that the employer being placed to a position of authority and strength could always coerce employees to waive their legal protection and accept contractual terms and the pains of losing his job...."

5. As regards the respondent-Corporation's claim that the very appointment of the appellant was illegal, it may be noted that such has never been the stance of the respondent-Corporation, neither was so pleaded before the foras below, nor was it submitted by their counsel during his arguments before this Court and it is for the first time that the respondent-Corporation through their concise statement filed after we reserved the judgment, that they raised the said plea, without placing any material in support thereof, and therefore the same cannot be considered by us.

6. In view of the foregoing, we allow this appeal, uphold the D judgments of the Labour Court as well as of the Labour Appellate Tribunal and order payment of the back benefits to the appellant within 15 days under intimation to this Court.