AURANGZEB Versus SONERI BANK LIMITED
DECISION
1. JUSTICE (R) ALI MUHAMMAD BALOCH, MEMBER.--- By this decision I propose to dispose of this appeal preferred by appellant under section 48(3) of the Sindh Industrial Relations Act, 2013, against the order dated 04.5.2013, passed by the learned Presiding Officer, Sindh Labour Court No.V at Karachi in Grievance Petition/Application No.21 of 2010 under section 41 of Industrial Relations Act, 2008.
2. Brief facts of appeal are that the appellant was employed in the respondent No.1 who was appointed on the terms and conditions as specified in the letter of appointment dated 23.05.2008 on merits. The appellant, being a permanent workman/worker doing, manual and clerical work falls within the definition of section 2(xxxii) of the Sindh Industrial Relations Act, 2013, as well as under the Standing Orders Ordinance, 1968. Being fully satisfied with performance of appellant, respondent No.1 confirmed the service of the appellant vide Letter of Confirmation No.SBL/HRD/2822/031237/2009 dated 20.08.2009, appellant was discharging his duties, which were manual and clerical in nature, like receiving credit proposal of fund -- based and non-fund based facilities from the branches of the Southern Region of the respondent No.1 going through the proposal to ascertain whether the same are complete in all respect and if not, seeking requisite information/documents, verbally or through letter to be typed by the appellant from the concerned branches of South Region, taking dictation from the SEVP&GM (South) and Controlling of branches and writing those comments on the proposal. Preparing manual statements in respect of minutes of the meeting of Regional Finance Committee and filling the same in the relevant files and if the limits of fund-based and non- fund based facilities were above the aforesaid figure, then after taking dictation from the members of Regional Finance Committee and recording the marks/recommendation of the Regional Finance Committee members as guided or dictated by them on the proposal, preparing manually list of proposals to be submitted to the Executive Finance Committee and to submit the proposals to the executive finance committee for its proposal, preparing monthly statements of controller of branches to be forwarded to the president of the respondent No.1 for his perusal and information, getting signed from the SEVP&GM (south) and submitting the same to the president, recording approval number of the committee in the files and without having:--
3. Any subordinate under control,
4. Any authority to recommend leave, monitor attendance and efficiency of the staff.
5. Any authority to monitor and or evaluate performance of staff.
6. Any independent charge of having powers of hire and fire.
7. Respondent No.1 addressed a letter No.SBL/HRD/3960/031/ 237/2009 dated 30-12.2009 to the appellant in which it was mentioned that they have received a letter No.BOK/HO/MD's Seett:/1387 dated 25.11.2009 from Mr. Bilal Mustafa, Managing Director of The Bank of Khyber. The respondent No.1 further informed the appellant therein that The Bank of Khyber addressed a letter to the Director General National Accountability Bureau (NAB) and copy endorsed to the respondent No.1 regarding a complaint against the appellant. The respondent No.1 enclosed the aforesaid letter of the Bank of Khyber and called upon the appellant to explain his position within 3 days alter receipt of said letter. The appellant through his letter dated 02.01.2010, specifically denied the allegations levelled against him and further requested respondent No.1 to provide him alleged documentary evidence and require report of the Bank of Khyber. The appellant explained the respondent No.1 that he had resigned from the Bank of Khyber in the year 2001, but he never received any notice, letter and/or complaint, from the said Bank till such alleged complaint, appellant also briefly disclosed in his reply that Mr. Mohammad Yaseen, SVP and Head of SAM Division of The Bank of Khyber who is his cousin has personal grudge and he is/was the person behind all such alleged complaint with sole intention to injure his reputation and lower down his respect, dignity in the eyes of the relatives, friends, colleagues as well as to spoil his career and to cause him financial losses.
8. The appellant vide his letter dated 02.01.2010 mentioned that he served The Bank of Khyber from July, 1995 to August, 2001 and resigned from service at his own accord. The appellant thereafter served a number of organizations, but up till December, 2009, the appellant never received any letter or notice either from the Bank of Khyber or NAB authorities regarding his alleged involvement. The appellant further mentioned there in that the 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. Appellant being dissatisfied with immediate termination of his service, availed an opportunity as per the service rules of the respondent No.1 submitted an appeal dated 13.01.2010 followed by another letter dated 21.01.2010 to respondent No.1's management for reinstatement in service but, the respondent No.1 did not consider. Appellant served Grievance Notice dated 24.02.2010 under section 41 of Industrial Relations Act, 2008 to the respondent No.1 against his illegal and unlawful Termination from service. Grievance notice was responded by the 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 respondent No.1 further admitted in their aforesaid reply to the Grievance Notice dated 24.02.2010 that the NAB had received complaints against the appellant, which were processed by them however, the respondent No.1 deliberately and malafidely have not mentioned that no inquiry/investigation was/is pending against the appellant in the NAB at present therefore, the clarification of NAB is solid evidence for reinstatement of the appellant.
9. 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.
10. Learned Labour Court framed following points for determination: "whether applicant was illegally terminated by respondent? whether applicant is entitled for the relief claimed? what should the order be?"
11. After hearing learned labour Court dismissed the Grievance Petition of appellant vide its order dated 04.5.2013.
12. 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.
13. Mr. Ghulam Murtaza Saryo, learned counsel for the appellant relied upon the following Judgments:--
14. 2003 PLC 99, 1992 SCMR 1891 and 1990 PLC 142.
15. From the above letter of termination of service, it is evident that basis for termination of service of the appellant was complaint received against the appellant from the Bank of Khyber, Peshawar alleging that appellant has been found guilty of misconduct and involved in fraudulent loans, criminal breach of trust and that NAB was investigating the matter. In the case in which no evidence was adduced by the respondent No.1 Bank the fact that termination letter was based on allegations of misconduct remains undeniable as letter of termination itself contained allegation against the appellant and Respondent No.1 did not resort to the mechanism provided under Standing Order 15(4) of the Industrial and Commercial Employment (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 requirements of Standing Order 15(4) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
16. Standing Order 15(4) is reproduced here as under:
17. "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:
18. [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"
19. The respondent 1 witness during his cross-examination has admitted in the following manner:--
20. "It is fact that neither enquiry Officer was appointed nor enquiry was conducted against the Applicant by the Respondent."
21. 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:
22. "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."
23. " 2006 PLC 24
24. "----Ss. 2(xxiii), 25-A & 37(3)---Industrial Relations Ordinance (XCI of 2002), S.48---Dismissal from service---Grievance petition---Appeal---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."
25. " 1999 PLC 302
26. "----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---Validity---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."
27. 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:
28. "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.
29. 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.
30. 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.
31. 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.
32. 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."
33. 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.
34. 1979 PLC 443
35. "----S. 25-A read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12(3)---Workman---Status determining of---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."
36. 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.
37. 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.
38. The respondent 1's witness during his cross-examination has admitted in the following manner:
39. "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."
40. The respondent No.1 witness during course of his cross-examination has frankly admitted as under:
41. "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."
42. 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.
43. HBT/7/SLT Appeal allowed.