1. This constitutional petition is directed against the order dated 13.10.2015 passed by Respondent No. 1 whereby revision petition of Respondent No. 2 against order passed by Respondent No.3 was allowed.
2. 2.Brief facts are that petitioner was employed with Respondent No.2, as CLK on 08.02.2003. On 30.07.2012, the petitioner was served with show-cause notice being involved in misappropriation of funds. After ex parte inquiry, the petitioner was dismissed from service on 31.10.2012. The petitioner filed application under Section 15(2) of the Payment of Wages Act, 1936 ("Act") for his service dues including gratuity on the ground that petitioner was not dismissed from service rather he resigned from service on 27.09.2012. The application of the petitioner was dismissed by Respondent No.4 on the ground that because petitioner was dismissed from service on 31.10.2012, therefore, he was not entitled for gratuity etc. The Said order was set aside by Respondent No.3, on 31.12.2014 and Respondent No.2 was directed to pay gratuity of Rs.222346/- to the petitioner. The order dated 31.12.2014 was further challenged by Respondent No.2 before Respondent No.1, where vide impugned order dated 13.10.2015, the order dated 31.12.2014 of Respondent No.3 was set aside and it was held that because petitioner was dismissed from service, therefore, under Section 12(6) of the Industrial and Commercial Employment, (Standing Order) Ordinance, 1968 ("Ordinance"), the petitioner cannot claim gratuity etc. The petitioner being aggrieved of order dated 31.10.2015 has filed this constitutional petition.
3. 3.Learned counsel for the petitioner argued that Respondent No. 1 failed to appreciate that petitioner was not dismissed from service rather he resigned from service and his resignation was also accepted as evident from performance certificate dated 29.11.2012 and letter dated 30.04.2013.
4. Therefore, under Section 12(6) of the Ordinance, the petitioner was entitled for claim of gratuity etc. He further submits that petitioner originally filed grievance petition before Labour Court but on the application of Respondent No.2 under Order VII Rule 11 CPC, the said petition was rejected and petitioner was directed to approach authority under the Act. He submits that in application under Order VII Rule 11 CPC, the Respondent No.2, never mentioned that petitioner was dismissed from service; therefore, the dismissal order is an afterthought.
5. 4.Learned counsel for the respondents argued that petitioner was dismissed from service for misconduct after holding inquiry on 31.10.2012, therefore, under Section 12(6) of the Ordinance, he is not entitled for claim of gratuity. Further submits that performance certificate was issued on 29.11.2012 because petitioner returned the embezzled amount. Submits that letter dated 30.04.2013 is a forged document and was never sent by respondent company.
6. 5.I have heard the learned counsel for the parties and perused the record.
6. For the purpose of claim of gratuity etc. under Section 12(6) of the Ordinance, the moot question requires determination is whether petitioner was dismissed from service for misconduct or he resigned from service. The documents available on record which were also placed before the forums below shows, that petitioner was issued show-cause notice on 30.07.2012 under Section 12(b) of the Ordinance on the ground that petitioner was involved in misappropriation of funds which amounts to misconduct. The order dated 31.10.2012 shows that petitioner was dismissed from service with immediate effect, after ex parte inquiry as petitioner failed to give reply to the show- cause notice or joined the inquiry proceedings. The dismissal order also provides that petitioner will deposit amount of Rs.201,720/- otherwise legal proceedings be initiated against the petitioner. The resignation letter of the petitioner dated 27.09.2012 does not show that this resignation was accepted or even acknowledged by tee respondents. The performance certificate dated 29.11.2012 relied upon by petitioner also does not acknowledge the acceptance of resignation. In fact the performance certificate dated 29.11.2012 states that petitioner served from 08.02.2003 to 31.10.2012 and the dates on this certificate actually support the stance of Respondent No.2, because on 31.10.2012, the petitioner was dismissed from service. If the resignation dated 27.09.2012 was actually stood accepted, then the last date on certificate should have been the date of resignation letter i.e. 27.09.2012 instead of date of dismissal order i.e. 31.10.2012.
7. 7.The affidavit of Tahir Saleem Butt, H.R. (Admn.) was produced as Exh.R-I where it was explained that petitioner was dismissed from service on 31.10.2012 and performance certificate was issued on compassionate ground because petitioner returned misappropriated amount. This explanation appears plausible and also corroborate with dismissal order dated 31.10.2012, under which amount of Rs.201,720/- was yet to be recovered from the petitioner. The mere fact that in order on application under Order VII Rule 11 CPC, it was not recorded that petitioner was dismissed from service will not refute the documentary evidence available on record. As per documentary proof, the petitioner was dismissed from service after inquiry on 31.10.2012, and the petitioner has not produced acceptance of resignation or even the copy of application filed under Order VII Rule 11 CPC to show any admission of resignation was made on part of Respondent No.2. So far as letter dated 30.03.2012 is concerned, the same is not on the Letter Head of the respondent Company and its authenticity has been disputed by the Respondent No.2. Petitioner had not produced or called as Court witness its executor to prove the said letter. In these circumstances, I have no manner of doubt that petitioner's resignation was not accepted rather he was dismissed from service on 31.10.2012.
8. Once it is established that petitioner was dismissed from service for misconduct, then under Section 12(6) of the Ordinance, the petitioner was not entitled for the claim of gratuity and he should have approached competent forum against his dismissal order. In this context reliance is also placed on Messrs Sartaj Flour Mills (Pvt) Ltd. Havelian, Tehsil and District Abbotabad through Manager vs. Ahmad Din and 2 others (1996 PLC (CS) 353).
8. 9.For reasons recorded above, I find no illegality and infirmity in the impugned order. Accordingly, this petition is dismissed with no order as to costs.