1. DECISION ' JUSTICE (RTD.) ALI MUHAMMAD BALOCH (CHAIRMAN).--- The appellants have challenged the common order passed by the Sindh Labour Court No, VI, Hyderabad, dated 21-2-2008, which was passed by the learned Presiding Officer, Syed Irshad Ali Shah, after hearing five appeals filed by the appellants Corporation against respondents namely (i) Haji Zameer Ahmed Akhund, (ii) Subhan Ali, iii) Muhammad Zahid Farooqui, (iv) Khizar Khan and (v) Miss. Gulzar Khan. A common judgment was passed deciding all the five appeals as it was held that all the appeals contained similar questions of facts and law and, therefore, the Labour Court was of the view that the same could be decided by a common judgment. Although five appeals were filed by the appellants challenging the orders passed on their grievance petitions, but the same were clubbed together and considered and decided by a common order terminating their services, which order was challenged before this Tribunal.
2. Before filing of grievance petitions services of all the respondents had been terminated by appellants, as on account of floating of a scheme called "premature retirement of employees by golden hand shake", which was in fact floated by the local authorities viz. Appellants Nos.1, 2 and 3 without the approval of Federal Government. In that scheme it was specifically mentioned that in para.4(b) of the scheme the employees who did not opt for the said scheme would be retrenched under the "last in first out" basis on payment of only one month's salary. The appellants were provided with the forms to be filled in by the employees. According to .The appellants, the respondents filled in the forms of that scheme as they aprehended that they will be ousted out of service if they did not fill in those forms, under that retrenchment policy. It was done on 28-11-2000.
3. All the respondents were old employees of the appellants and they moved these applications for the retrenchment/ retirement from service. However, on some second thought on the same day they gave another application to the authorities (appellants) that they should be paid their full and final dues on the same day under the said scheme, otherwise their option given the same day may be considered as withdrawn. Their withdrawal option was even addressed to their higher authorities. Again those applications were given to the Regional Chief. All the respondents forwarded similar withdrawal petitions on 30-11-2000 also in which it was stated that under mis- conception coercion, threat of losing the job each of the respondent had given in writing that since it was not a voluntary retirement from the job, and that the same may not be considered as their wilful acceptance of the scheme. However, ignoring their withdrawal statements and protests, the respondents were retired from the service and were relieved from their jobs on 30-11-2000.
4. However, the payment of the dues was made to them on 14-12-2000 which was accepted only on protest that till the employee is allowed his duty he will be utilising the service benefits. Appeals moved by the respondents against their ouster from services under these circumstances were refused by their department. The respondents then moved their complaints to the higher authorities in shape of appeals, but all their requests bore no fruit. The Federal Government however had vide Office Memo No,35/2/97 R.W.3 dated 29-12-197 deferred the scheme of voluntary retirement as allowed to the Government servants, who wanted to withdraw from the scheme, but their applications were rejected, as the withdrawl option was only available to Government servants and not the employees of Corporations. The respondents then approached the Federal Service Tribunal, who by its judgment dated 2-9-2004 held that the respondents could not be said to be aggrieved persons. However, the respondents although permitted by the Federal Service Tribunal for reconsideration of their case, failed to achieve their objection. The respondents then appealed to the honourable Supreme Court where their appeal was pending when the decision came in the case of Mubeen-ul-Islam declaring section 2-A of Service Tribunals Act to be ultra vires and against the law, and allowed the employees of Corporations to seek other remedies.
5. Under these circumstances the respondents approached the Labour Court, which passed the impugned order dated 21-2-2008, whereby it was held that the V.R.S.S.-was purely voluntary scheme and the employees could not be forced to be retrenched, and that the emolumentes received by the employees under protest could not be treated as a closed transaction. However, in this case it was found that the amounts received by the employees were returned and the same could be adjusted towards their dues and thus the Labour Court took pains to go through the evidence recorded before it and finally come to the conclusion that the filing of departmental appeal/representation in such cases was not necessary at all. The present cases were out come of abatement of proceedings by decision of honourable Supreme Court hence the filing of domestic representation in shape of grievance notice was not required.
6. ' The main objection of the management was regarding maintainability of this appeal on the ground that each respondent had accepted the payment of his dues towards full and final payment from the appellants and, therefore, their grievance, if any, against the appellants was over I do not find any force in this argument because the option of the retirement was accepted only on 30th November, 2000 (in case of the respondent Haji Zameer Akhund, it was on the very day i.e, 28-11-2000 as it was noted on the back page of the very paper on which he was asked to sign his acceptance, that the statement of withdrawal was written by the respondent Haji Zameer Akhund on the very day i.e, 28-11-2000). Therefore, this shows that the amount was not paid to the respondents on the very day. It was also clear that the amount which was paid to the respondents was paid by cheques which were of a subsequent date i.e, 14-12-2000, and the same was received under protest. The learned Labour Court in the impugned order has held by advancing cogent reasons that the R.S.S. Scheme was made with giving the employees the understanding that if they had opted under the scheme to leave the service, they shall be relieved after one month and their services will stand retrenched. Not only this but the application given to the Regional Chief shows that respondents had withdrawn the option which fact is also proved from their endorsement to the lower officers on their applications, thus they had given in writing on the very day of their giving their statement of acceptance of the scheme. In fact, the circumstances show that the respondents had not accepted to leave the job without some incentive which was not in accordance with the decision of their superiors and it was also not believable that during these days of joblessness the respondents could be believed to have shown their willingness to give up the jobs which the respondents were performing satisfactorily. The learned Labour Court in its verdict has rightly relied upon the case of G.M. National Radio Tele-Communication v. Muhammad Aslam and others reported as 1992 SCM R 2169, that the payment, of dues received by workmen would not disentitled him to reinstatement in service, it is held that termination was mala fide or that charges were not proved against the employee. It was also held by the honourable Supreme Court in the same case that mere acceptance of legal dues by an employee does not amount to waiver of right, so as to stop him from challenging the order of termination and it cannot be accepted as a rule in each and every case that receipt of dues would debar an employee to approach the Labour Court for the redressal of his grievance. It is also held by the superior judiciary that law has provided a forum to settle the dispute between the employer and employee, and that the jurisdiction of Court cannot be taken away on the plea that after the payment had been received by the worker, he was no more aggrieved person. However, it is always a question of fact to be determined on the basis of evidence whether an employee had accepted his termination and severed his relationship with the employer after termination out of freewill, he accepted all his dues as full and final settlement of dispute and by that way he had discontinued his connections with his employer for good and that after such severance of connections there were no disputes to be adjudicated. So the acceptance of dues had direct nexus .With the final settlement of the disputes, leaving no cause of action between the employee and the employer. Therefore, it was held that such receipt of dues by the employee could not act as waiver of his rights against the employer. In the present case the employees had filled in the forms of showing their option to withdraw the option of giving up the jobs, as they were threatened of being removed from the job after one month only. This could be rightly, called misconception, misrepresentation, intimidation, pressure and coercion, and therefore, I hold the judgment of the learned Labour Court as correct, and that the respondents were made to opt for retirement, and when they realized that it was not in their favour, they made applications for withdrawing the said option, and their withdrawal was wrongly disallowed.
7. ' The respondents are, therefore, directed to be reinstated in service from the date they were wrongly terminated in accordance with the service laws. As regards back-benefits, it appears that the department from the very beginning has been treating them as out of the jobs, therefore, under the law they are entitled to the full back-benefits. However, some amounts were returned to the employees, therefore, it will be a question of settlement of the accounts between the employees and the employers. The same may be determined and if it is proved that certain employees had been over paid, those amounts may be recovered from them in easy instalments and if the employees are found entitled to receive some dues the same may be paid to them by the appellants.