Brief facts, as stated in this writ petition, are that petitioner joined service with respondent No.2 / Muslim Commercial Bank Ltd. w.e.f. 25.01.1973, and worked there continuously till 13.08.2004.
Petitioner was issued a letter of charge on 23.12.2003 which was replied by him. The said letter of charge was followed by a letter of inquiry. Thereafter, an inquiry was held and petitioner was dismissed from service vide order dated 12.08.2004. Petitioner moved a grievance petition on 20.11.2004, before learned Punjab Labour Court No.V, Sargodha, against the said dismissal order.
Respondents No.2 to 5 submitted written statement. After recording of evidence, learned Labour Court, vide order dated 12.02.2007, allowed the grievance petition moved by the petitioner, and directed his reinstatement into service along with all back benefits. Respondents No.2 to 5 preferred an appeal dated 14.03.2007, before respondent No.1 / the Punjab Labour Appellate Tribunal. During the pendency of the appeal, the petitioner was proceeded on LPR (365-days) w.e.f.
03.01.2011. Finally, the appeal filed by respondents No.2 to 5 was partly allowed by respondent No.1 vide judgment dated 11.04.2011. Through the instant petition, the petitioner has impugned the aforesaid judgment with the following prayer:- "It is therefore respectfuly prayed that this Honourable Court may very kindly be pleased to allow this petition with special compensatory costs and while declaring the impugned judgment dated 11.04.2011, to be patently illegal, without jurisdiction, wholly unjust, perverse, without lawful authority and of no legal effect and the same be accordingly set aside, restoring the Order dated 12.02.2007 (Annex A/9) passed by the Learned Punjab Labour Court No.5 at Sargodha, directing reinstatement of the petitioner into service along with all the back benefits.
Any other additional relief which may be found just & proper, in the circumstances of the case may also be granted in the interest of justice."
2. Learned counsel for petitioner submits that the letter of dismissal dated 12.08.2004, was totally bereft of explicit reasons as required by law. It was result of non-consideration of defence version and evidence, and non-application of independent mind, therefore, the same was rightly recalled by the learned Labour Court but learned Labour Appellate Tribunal proceeded to award penalty of compulsory retirement which violates Standing Order 12 (3) of the Ordinance VI of 1968 read with Section 24-A of the General Clauses Act, 1897, as no penalty of 'compulsory retirement' is provided in law. He adds that before dismissing the petitioner from service, the petitioner was not provided with a copy of the inquiry report in order to rebut and explain adverse findings, if any, against him.
He submits that the impugned letter of dismissal and impugned judgment dated 11.04.2011 are liable to be struck down on this score alone.
3. On the other hand, learned counsel for respondents has defended the impugned judgment dated 11.04.2011 by contending that petitioner has failed to point out any illegality or legal infirmity in it and prayed for dismissal of instant writ petition.
4. Arguments have been heard and record perused.
5. Perusal of the impugned judgment reveals that even after considering that no financial loss was caused to the respondent bank; and the petitioner was never charged for misconduct throughout his 32 years of service prior to this incident, the learned Appellate Tribunal not only proceeded to set aside order of the Labour Court, whereby petitioner was ordered to be reinstated, but also converted penalty of dismissal, as initially awarded, into compulsory retirement. The operative part of the impugned judgment dated 11.04.2011, passed by respondent No.1, is reproduced as under:- "13. The prosecution has proved their case and has taken into consideration al aspects of the matter. The claim of the respondent that he earned no blemish or never was charged of misconduct throughout his 32 years of service prior to this incident has not been refuted by the bank. Although the bank had suffered in reputation on account of this technical jugglery of the respondent nevertheless it is equally a fact that no financial loss had occurred to the bank and this was clearly admitted by the enquiry officer while appearing as RW-1. In these circumstances I would hesitate to confirm the imposition of extreme penalty of dismissal and would award him penalty of compulsory retirement. This I belief would meet the ends of justice.
14. In this view of the matter the appeal is partly accepted and the order of the learned Labour Court is modified. The penalty of dismissal is converted into compulsory retirement. There shall be no order as to costs."
7. Under the similar circumstances, in a case emanating from a service matter, Hon'ble Supreme Court of Pakistan held as under, in case titled Deputy Director Food and others v. Muhammad Rafique Khan (2005 PLC (C.S.) 214):- "It may be noted that as per the definition of 'misconduct' and 'inefficiency' under the Efficiency and Discipline Rules, 1999, the respondent, in view of above charges, cannot be held accused for either of them. It is also to be noted that on account of allegations as have been a leged against him, no loss to public exchequer or the Government has occurred. Therefore, we are of the opinion that in such view of the matter, if respondent, for any reason, could not answer satisfactorily about the fumigation process etc., he would not be penalized by imposing major penalty. Besides it, as far as remaining two other charges i.e. Non-cleanliness of the godowns and infestation in the gunies etc. Are concerned, no loss admittedly has been caused to the Government on that account, therefore, for such reason, the Provincial Service Tribunal was quite justified to interfere in the order of the Departmental Authority."
8. Examination of the Standing Order 12 (3) of the Industrial & Commercial Employment (Standing Orders) Ordinance VI of 1968 ("Standing Order"), shows that the penalty of compulsory retirement cannot be awarded under the law. The said provision of law reads as under:- "(3) 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 of 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."
9. From bare reading of the afore-quoted provision, it is clear that penalty of 'compulsory retirement' is alien to the Standing Order as the prescribed penalties are removal, retrenchment, discharge and dismissal from service, but there is no penalty of 'compulsory retirement'. The impugned penalty, which has also not been prescribed by law, even otherwise appears to be harsh thus, the same is not sustainable in the eye of law, as it has also deprived the petitioner from award of full retirement benefits.
10. The fundamental principle, which is enunciable from the labour laws, is that the same hold out a guarantee to all workmen that no action can be taken which can adversely affect terms and conditions of their service including retirement benefits, which are prescribed by laws / rules / regulations. Any adverse action, offending his right to retirement benefits, is also violative of Article 9 of the Constitution of Islamic Republic of Pakistan, 1973.
11. Major penalty, as the Tribunal suggested, was a severe and extrement punishment; in the context of labour laws, it could mean the end of a person's service. Such penalty could not be imposed lightly and without proof of serious allegations. Punishment awarded must be proportionate to and commensurate with the magnitude of the offence, especially when the Labour Court had set aside the penalty of dismissal of petitioner, operative part of which reads as under:- "20. It is proved from the material brought on record that there was no complaint of embezzlement of Rs.40,000/- against the petitioner as the alleged complainant Sher Zaman neither moved an application to the bank for embezzlement nor appeared before the enquiry officer during enquiry by levelling allegation of embezzlement of Rs.40,000/- against the petitioner. It is also an admitted fact that no financial loss has been caused to the respondents' bank and charge-sheet is also proved to be time barred and dismissal order and charge-sheet were not issued by the competent authority. More-over, after concluding the enquiry and before passing the dismissal order, no final show-cause notice was served upon the petitioner and he was deprived of giving opportunity of personal hearing. The respondents by dismissing the petitioner have acted in an illegal manner and contrary to the principle of justice and equity. So, the order of dismissal dated 12.8.2004 is liable to be set aside
21. The petitioner has also taken the plea that he is un-employed since the date of his dismissal and this fact was not controverted by the respondents in the statement of R.W.1, so this fact stands proved.
22. So, in the circumstances mentioned above, the application under section 46(3) of the IRO, 2002 is hereby accepted by setting aside the dismissal order dated 12.8.2004 with the direction to the respondents to reinstate the petitioner into service with all the back benefits within a period of one month from today. The file be consigned to the record room after completion."
12. Learned counsel for the respondent bank submits that the petitioner has received the retirement benefits and now he is estopped from assailing it further. Suffice it to say that on account of penalty of 'compulsory retirement', he had received only partial benefits, while he had been deprived of substantial amount owing to the impugned penalty. Further there is no estopple against law, and petitioner is entitled to be treated in accordance with law in terms of Article 4 of the Constitution. He has the right to be dealt with fairly and justly under Section 24-A of General Clauses Act, 1897. The argument is thus repelled.
13. More-so, mere acceptance of legal dues by an employee would not amount to waiver as to estop him from challenging the order passed against him. Such remedy could not be denied to him if the charge of misconduct had not been established. Likewise, Hon'ble Supreme Court of Pakistan, in case titled Farasat Hussain and others v. Pakistan National Shipping Corporation through Chairman and others (2005 PLC (C.S.) 890), observed that merely receiving such an amount would not constitute estoppel and the appropriate legal remedy could be sought.
14. In this view of the matter, instant writ petition is allowed and the impugned order is set-aside.
The case is remanded to the respondent No.1 / Punjab Labour Appellate Tribunal, Lahore, to decide it afresh, after hearing the petitioner and all concerned, through a speaking order, within a period of two months from the date of receipt of this order, under intimation to Deputy Registrar (Judl:) of this Court.