DECISION Brief facts of the case are that the petitioner claims to be a Bachelor of Commerce. He had the experience Of working with Rupali Group of Companies (Spintext Ltd.) w.e.f. 1.6.1991 to 21.12.1998, from where he resigned. He alleged to have worked honestly and efficiently and due to hardworking the respondent No. 3 offered him to join their firm, Satellite Vehicle Tracking and Fleet Management Systems (SMS) Courier Service. The petitioner joined the said Organization as Client Executive w.e.f.
3.3.2000. He remained posted at Zonal Office, 21-Zaman Park, Lahore for about one month and after having proved his worth to the satisfaction of the Vice-President, respondent No. 3 and Managing Director, respondent No. 2 he was posted at Jhelum. He worked hard, gave excellent performance and got effected huge recoveries arid added to the good-will and reputation of the establishment of SMS Courier, in due course of events with the permission of the respondent No. 3 the petitioner took admission in the Diploma of Information Technology in the night classes at Patroman College, Shadman, Lahore. He then shifted from Jhelum to Lahore and in proof thereof the copy of shifting certificate dated 19.3.2002 has been enclosed. After completion of the studies of first semester the petitioner had to appear in the examination and for this purpose he applied it for leave from 21.10.2002 to 29.10.2002, which was duly supported by the date-sheet of the College. He had not previously availed any kind of regular leave and it was for the first the that the leave was so applied. He was informed that this leave applied has been allowed. Thereafter on the very next day of commencement of leave of the petitioner i.e. On 22.10.2002, he was handed over an ante-dated order dated 17.10.2002, whereby the petitioner had been transferred from Marketing Department to Operation Couriers Department w.e.f. 18.10.2002 F.N. And that his duty hours shall be from 02.00 to 08.00 a.m. (night) and that her will leave to send daily progress report of his activities. He further alleges that since his application of the leave had already been allowed, therefore, after taking the examination on 30.10.2002 he submitted his joining report, which was duly received. Simultaneously the petitioner apprised the respondents about his genuine difficulty that with permission he had taken admission in Diploma in Information Technology and the changed duty hours will certainly affect his studies and his family and, therefore, he may be allowed day duty. Unfortunately despite receiving the joining report of the petitioner, although he had been regularly attending his office, but under the verbal orders of the respondent No. 3 he was not allowed to mark his presence. This state of affairs continued upto 5.11.2002 and during this period and even thereafter the petitioner was verbally intimated that the application of the petitioner was under consideration and process and his duty hours shall be changed and he will be allowed day the duty. Then all of a sudden on 5.11.2002 he was told by the respondent No. 3 that his services have been discontinued and terminated. However, despite his request no written orders in this regard have been given to him till today. He served the respondents with a grievance notice as required under section 46(1) of the Industrial Relations Ordinance, 2002 through registered A.D. As well as through postal certificate. No decision has been conveyed to the petitioner within statutory period as required under se ction 46(2) of the Industrial Relations Ordinance, 2002, as such the present petition. The petitioner also alleges that the termination of the employment of the petitioner by means of verbal order is absolutely illegal, unjust, and is liable to be declared having no legal effect on the grounds mentioned therein. The grounds are sub-listed as sub-paras (a) to (f), in which the petitioner highlighted his grievance, which has been referred to above. He has at the end prayed for his reinstatement with back benefits.
2. The petition has been duly replied by the answering respondents in their written reply with only single preliminary objection that the petitioner has no locus standi, nor cause of action against the respondents. Further that he has not been terminated from service, nor he has resigned from the service of the respondents Company. That the petitioner has filed this petition with mala fide intention just to blackmail the respondents by abusing the process of law. His petition is malicious and vexatious and is, therefore, liable to be dismissed. While replying on merits it was stated that the petitioner joined SMS Couriers (Pvt.) Ltd. As a Client Executive on 3.3.2000. However, there is no organization or branch known as Satellite Vehicle tracking and Fleet Management System (SMS)
Couriers Service. He was posted at Jhelum on 3.4.2000. The petitioner did not take any permission from the respondent No. 3 for attending the night classes in Patroman College, Shadman, Lahore and there is no record available in the documents of the petitioner to bring out this fact. The copy of application for leave attached by the petitioner is fake and false. The signatures of the recipient on the said application are falsa and forged. No employee of the respondent Company received the said application. Since no application, of the petitioner was received by the respondents question of leave application having been allowed does not arise. Averruncate of the petitioner that he was handed over an ante-dated order dated 17.10.2002 is incorrect. The petitioner absented from duty without leave w.e.f. 19.10.2002 and continues to be absent till today. Copy of the joining report attached by the petitioner with his petition was neither received by the respondents, nor by any employee., of the respondents Company. The signatures on the said report are fake, false and forged. The services of the petitioner have neither been terminated, nor discontinued verbally or in writing. The petitioner continues to be absent from service till toady. Grievance notice of the petitioner was received by the respondents. However, no action could be taken on the said grievance notice, because of the reasons that the services of the petitioner had not been terminated by the respondents, nor the petitioner visited the respondents Company, nor made any personal contract with the respondents. Again that since the services of the petitioner have not been terminated by the respondents, therefore, question of termination of employment of the petitioner being illegal, unjust, unwarranted, arbitrary, mala fide as well as without lawful authority does not arise. The grounds taken by the petitioner for reinstatement of his service with back benefits are totally incorrect, baseless and false. The respondents have also denied the grounds referred to above one-by-one and at the end they have prayed that the petition of the petitioner needs dismissal and the same be dismissed.
3. The evidence of the parties has been recorded. Syed Abrar Akber Kami, petitioner himself deposed as PW- 1. He in his examination-in-chief reiterated the facts, which have been enumerated in brief above, in the cross- examination he admitted that he does not remember the date of Diploma of I.T Course, nor he also remembers that the permission was granted by the respondent No. 3 for admission in that Course in writing. He, however, admits that the application for leave is admitted, which bears the signatures of Mr. Khalid Siddique Rana, who was previously Operation Officer and now A.V.P. The respondent No.1 is the Chief Executive of the Company. He denied the suggestion that Satellite Vehicle Tracking & Fleet Management System (SMS) Courier Service has got no link with the firm he has detailed above, in the evidence of the 2005 Syed Abrar Akbar Kazmi V. M. Akram Saighal L&S.C 29 (Syed Shahbaz Hassan Gardezo, Presiding Officer Punjab Labour Court No. 1 Lahore.) respondents two witnesses, namely Khalid Siddique Rana, E.V.P. As PW-1 and Muhammad Ashiq, Record Keeper, PW-2 have been examined, in his evidence RW-1 stated that he is employed since 1988. He knows the petitioner, who was employed since 3.3.2002. He took admission in Diploma Course without their written permission. They received no application of the petitioner for taking the admission in the said Diploma. The application for leave from 21.10.2002 to 29.10.2002 has not been received by them. He is absent since 18.10.2002. Further that the letter regarding duty of the petitioner dated 17.10.2000 has been issued by him and it has not been ante- dated. On the completion of his leave the petitioner has not reported for joining, in the cross- examination with respect to the facts of the petitioner the witness stated that he has the authority to sign on behalf of the Company with respect to the matters of all the employees. He did not bring the service record of the petitioner. However, it is stated that it is part and parcel of the file. He, however, stated that the petitioner was posted first at Jhelum and then at Lahore. He remained in Jhelum for some the and then at Lahore in the Head Office. He is Graduate. He, however, denied the suggestion that the petitioner had applied for leave to the Company properly. The witness has been put to lengthy cross-examination and has been brought to the witness-box for more than once. He, however, maintained that the record of the leave application of the petitioner is nowhere proved from the Company record. He, however, admitted that the fact of grievance notice is not denied.
5. The second witness, Muhammad Ashiq, Record Keeper stated that he is employed in the respondents establishment since 29.3.2000 and he knows the petitioner. He stated that he had brought the service record of the petitioner. Original Identity Card is Exh. R-1 and as per bio-data of the petitioner, which is along with photo, it is Exh. R-2(1 to 3) and the application Exh. R-3. His application for transfer from Jhelum to Lahore is Exh. R---
4. The joining report of the petitioner is Exh. R-5. Leave application is Exh. R-6. Transfer order is Exh.
R-7. Attendance register in original is Exh. R-8. The same has further been produced as Ex. R-9 and at page 5 at S.No.'38 the petitioner received with his signatures, in the cross- examination he admitted that he did not bring the leave account with him. However, he brought the pay account of the petitioner, which pertains to the period from 1.8.2001 to 1.9.2002 Ex. R-7 is not signed by the petitioner. However, two copies were prepared, on which it was written on whom these are to be served Exh. R-9 is signed by the petitioner and it shows that the signatures have been affixed with two different inks. Whoever signed, has not given any date. He denied that the said register is without page marked. He also stated Exh. R-8 is of the same position. He denied that he deposed with mala fide.
6. The counsel for the parties have further brought on record various documents duly placed for the perusal of this Court and argued at length. Case of the petitioner is basically that he did not bypass the Bye-laws of the Company. He served the Company diligently and with bona fide. He only got admission in the Patroman College, Shadman, Lahore and with due permission of the respondents. The case of the respondents is that he did so without applying properly and there is no such record of the leave in the Company Register. The I.T. Course admission with the permission of the respondents is proved on record that the petitioner applied for the leave from 21.10.2002 to 29.10.2002 to take the examination alongwith the date- sheet. Which he has so appended.
Respondents Nos. 2 and 3 proceeded to issue an order dated 17.10.2002. in the statement the witnesses RW-1 not only denied the transfer of the petitioner and the fact that the application for leave of the petitioner has been duly received in the Company and allowed by the relevant officer, which further shows that the grievance notice served by the petitioner against his termination order stands proved on record. The question is that of maintainability of the petition. The persons, Muhammad Akram Saighal, Dr. Mansoor Ahmad and Rana Khalid Siddique, who are part and parcel of the Company, have acted in disregard of the Company Rules. The matter 2005 Syed Abrar Akbar Kazmi V. M- Akram Saighal L&S.C 31 (Syed Shahbaz Hassan Gardezo, Presiding Officer Punjab Labour Court No. / Lahore.) of the parties also carries an F.I.R, which according to the learned counsel for the petitioner is mala fide and ill- motivated. in this respect the counsel for the petitioner has relied upon PLD 1952 Baghdad-ul-Jadeed 22, AIR 1916 P.C 27, 1982 PLC 1949 and 1992 SCM R 2182. in his arguments the counsel further stated that this mandatory law has not been carried out. This is not a fair practice.
7. The arguments of the counsel for the respondents are whether the petitioner is a worker or not in the SMS Courier Service as Client Executive. He has further argued that the petitioner has himself not stated to be a worker in his evidence. Learned counsel has relied upon 1993 SCM R 1282, 1993 SCM R 488, 2001 SGMR 1928, 2003 PLC 1 and 1998 PLC 139.
8. With this detailed discussion of the case of both the parties one thing is clear that the respondents firm has not been able to deny the leave applied for by the petitioner and that he did not join the Patroman Colleges, Shadman, Lahore without the permission of the SMS Courier Service. The leave period from 21.10.2002 to 29.10.2002 availed by the petitioner is all the more duly proved to be genuine. The fact that he has been put to task on his return is without any justification.
From the case-law produced by both the sides it makes it clear that the termination letter issued against the petitioner is without any cause and reason. The record of the respondents Company itself speaks in favour of the petitioner. A person cannot be denied of his right and he cannot be just terminated for no fault on his part.
9. In the light of the discussion above, I am fully convinced that the petitioner is not at fault and it is the mala fide on the part of the respondents Company that he has been so victimized. For these reasons the petition is accepted in favour of the petitioner with the direction to the respondents to reinstate him in service with back benefits.
10. No order as to costs.