The facts necessary to dispose of this appeal are that the respondent Sadia Khanam D/o Ch. Muhammad Ismail filed grievance petition U/S 33 of Punjab Industrial Relations Act, 2010 mentioning the facts that she was appointed as Lady Assistant against a regular and permanent post in April 2006; that she had been performing her duties without any interval till 19.04.2012 when without assigning any reason her services were terminated orally; that due to nature of her job as she used to perform her duties manually, she fell within the category of worker/workman; that under Para 12(3) of Standing Orders, Ordinance, 1968 her services in such manner could have not been terminated; that she sent grievance notice to the respondents on 25.06.2012 and filed the grievance petition with a prayer that oral termination order be set-aside and she be reinstated in service.
2. The grievance petition was replied by the respondents through their written reply raising four preliminary objections about its maintainability having been filed without any cause of action. Even otherwise, as nature of her job was contractual, therefore, the learned trial Court had no jurisdiction and matter was to be governed under the principle of master and servant; that she had no right to claim any right beyond the initial contract employment letter dated 14.04.2006. On factual side it was replied that she was a contractual employee and her services were remained on being extended after expiry of each year contract period; that as her services were not required due to internal problems of the bank, hence her contract was not extended; that she has no right to claim her reinstatement. Prayed that grievance petition be dismissed.
3. The learned trial Court recorded the statement of the respondent Sadia Khanam as PW-1 wherein she reiterated her stand mentioned in the grievance petition while getting exhibited documents Ex.P. 1 to Ex.P.12 and her learned counsel vide statement dated 21.10.2013 closed the evidence.
On the other hand Muhammad Hussain Shah Deputy Zonal Head H.R Multan appeared as RW-1 and reiterated the stand given in the written reply. He got exhibited documents Ex. R.1 to Ex.R.16 while learned counsel for the appellant vide statement dated 21.03.2014 getting exhibited documents Ex.R.17 to Ex.R.24 closed the evidence.
4. The learned trial Court vide impugned judgment dated 02.06.2014 allowed the grievance petition.
Feeling aggrieved the appellant-bank has preferred this appeal.
5. During the pendency of this appeal as objection was raised on behalf of the learned counsel for the respondent about filing of this appeal by an unauthorized person as no authority letter or authorization was granted by respondent-bank in favour of the person who filed the appeal. An application (CM. No, 104/2016) dated 05.12.2016 was moved by the learned counsel for the appellants with a prayer that office order dated 29.04.2013 whereby Syed Nasir Abbas Gardazi, legal advisor was authorized to file plaints, complaints, .appeals etc. on behalf of the bank be allowed to be placed on records. This application was contested by the learned counsel for the respondent while submitting written reply opposing the same on the grounds that it is an after thought effort on part of the appellants to cover-up the lacuna on the basis of which this appeal is not maintainable. Arguments on this application as well as main appeal were heard.
6. Learned counsel for the appellant while referring order dated 16.04.2012 Ex.P.1 with reference to Ex.R.4 a request by the respondent for further extension in her service from 20.04.2012 to 19.04.2013 which was declined, hence prayed that the observation by the learned trial Court that no written order was issued is without any foundation; that written reply submitted by the appellant in the light of evidence brought on record that contract employees being superseded to earlier employees of the appellant-bank and as so many branches were closed, hence the contract employees were not required, hence their contracts were not further extended and this fact was not considered by the learned trial Court; that this fact was replied by the appellants in Para 14 of the written reply as well as in statement of RW-1. Prayed that this appeal be allowed.
7. On the other hand learned counsel for the respondent opposed the arguments advanced by the learned counsel for the appellant on the ground that grievance petition was filed against the President, Zonal Head and S. V.P H. R. Division, the respondents No, 1 to 3 whereas the appeal was only filed by Zonal Head. As far as Ex.P.1 is concerned, learned counsel submitted that it was only a direction by S. V.P H.R Division to Zonal.Head but no formal order in this respect subsequently was passed. Learned counsel further referred cross-examination of Rw-1 wherein he clearly admitted that stance about closure of certain branches was not even taken in written reply to the grievance notice Ex.P.8; that the appellant is a cooperative bank registered under Cooperative Act, 1925, hence until and unless resolution authorizing the appellant-official to prefer an appeal, the appeal is not maintainable; that contract employees are also considered a worker/workman under Standing Orders, Ordinance 1968 and for that purpose he has referred 1999 SCM R 2331; that respondent had been performing her duties for the last about 6/7 years without any break, hence was entitled for regularization, thus has rightly considered by the learned trial Court. Prayed that this appeal be dismissed.
8. I have heard learned counsel for the parties and perused the records.
9. The memorandum of appeal according to the records was signed on behalf of the appellant- bank by Syed Nasir Abbas Gardazi A.Head, Legal Division Punjab Provincial Cooperative Bank Head Office Lahore, Zonal head (S. V.P) Punjab Provincial Cooperative Bank limited, Multan and it was filed through Ch. Khalid Mehmood Arain advocate. An application for suspension along-with the affidavit and the power of attorney/Wakalat Nama in favour of Ch. Khalid Mehmood Arain advocate was also signed by said Syed Nasir Abbas Gardazi A. Head, Legal. Learned counsel for the appellants argued that due to inadvertence the authorization/authority in favour of Syed Nasir Abbas Gardazi could have not been annexed with memorandum of appeal whereas this authorization was passed by President/C.E. of the Bank since 29.04.2013. This appeal was filed on 04.07.2014, hence no illegality was committed by the appellants in filing the appeal against the impugned judgment. It was mere an error and such technicalities normally are not taken into consideration for non-suiting a party to litigation. On the other hand learned counsel for the respondent as already stated above opposed these arguments on the ground that as filing of this appeal was by an unauthorized person, hence appeal is not maintainable.
I have learned counsels for the parties in this respect and perused the records in the light of the procedural law in shape of Order VI Rule 14 and Order XXIX Rule 1 of Civil Procedural Code 1908. No- doubt pleadings are to be signed and verified by an authorized person in individual cases as provided U/O VI Rule 14, CPC and any suit/appeal by or against a corporation/company U/O XXIX Rule 1, CPC in the same manner by an authorized person with authority given by Board of Directors etc of the company. Here in this case, no-doubt along-with memorandum of appeal the authorization/resolution by the appellant-bank was not annexed, however, as already mentioned the memorandum of appeal an accompanying application, the affidavit and the power of attorney were signed by Syed Nasir Abbas Gardazi H. Head, Legal who was authorized by the President/C.E.O of the Bank vide office order dated 29.04.2013 to appear on behalf of the bank and signed complaints, appeals whatsoever. It is now settled that only due to technicalities the matters are not to be decided rather these are to be decided on merits so to curtail the litigation between the parties. Even otherwise, there are so many judgments when oral instructions are treated sufficient to be taken as due authorization for filing the suits/appeals etc. In this respect the judgments cited as PLD 2010 Karach 158 title Karim Dad Khushk vs. United Bank Limited and PLD 2008 Karachi 332 title Pakistan Television Corporation vs. Messrs Bond Advertising (PVT) Ltd also can be safely referred. Hence, the objection raised by the learned counsel for the respondent about maintainability of this appeal on this technical ground is without force.
10. If the appeal on merits is seen, the respondent Sadia Khanam in her grievance petition and while appearing as witness Pw-1 stated that she was appointed as Lady Assistant in April, 2006 and she continued her service till 19.04.2012 when without any justification through oral order she was terminated. Her initial appointment letter dated 14.04.2006 is present on records as Ex.R.3 which is actually appointment on contract basis. The Para 5 & 9 of Ex.R.3 are important to reproduce here:
5. Period of contract. The contract shall be initially for a period of one year from date of joining, subject to satisfactory performance and subject to extension in case of bank's requirement but at the sole discretion of the Management of the Bank.
9. Termination of contract. Contract of appointment shall be liable to termination on one month's prior notice (by either party without assigning any reason) or payment of one month's remuneration in lieu thereof by the appointee.
Ex.R.4/1, Ex.R.6 to Ex.R.10 are the applications moved by the respondent wherein she sought the extension of her contract period which expired after lapse of earlier one year period. The extension order Ex.R.11 to Ex.R.14 and the orders passed by appellant-bank whereby her services were extended on the same terms and conditions as agreed and on the basis of which the respondent was granted contract employment by the appellant-bank on 14.04.2006 vide Ex.R.3, the initial employment contract order. The contents of first extension order Ex.R.5 are hereby reproduced: EXTENSION IN THE CONTRACT PERIOD OF MISS SADIA KHANUM LADY ASSISTANT ZONAL OFFICE MULTAN.
Dear Sir, Refer your letter No,.M.MA/ZC/17945 dated 03.04.2007 on the subject cited above.
2. In this context, this is to inform you that the General Manager has very kindly extended the contract of Miss Sadia Khanum, Lady Assistant, Zonal Office, Multan for the period of one year from 20.04.2007 to 19.04.2008 subject to good performance.
3. The other terms and conditions will remain the same.
Yours faithfully, (Ch. Ijaz Ahmed)
Senior Manager (Admn)
The other extension orders are also in the same lines as that of Ex.R.5 and the services of the respondent were extended till 19.04.2012. The last extension order Ex.R. 14 shows that contract period of the respondent was extended till 19.04.2012. The respondent as usual sought further extension of her contract period but it was declined vide order dated 16.04.2012 Ex.P.1. The contents of said order are hereby reproduced: EXTENSION IN THE CONTRACT PERIOD OF MISS SADIA KHANUM LADY ASSISTANT ZONAL OFFICE MULTAN.
Dear Sir, Please refer to your letter No, MAK/ZH/SVP/15 dated 02.4.2012 on the captioned subject.
In this context, it is to inform you that the Competent Authority of the Bank has declined your request and directed you to dispense with the services of Miss Sadia Khanum, Lady Assistant on Contract Basis after clearing her dues as per entitlement.
You are, therefore, desired to act accordingly under intimation to this office.
Yours faithfully, (Abdul Jabbar)
SVP/Head HR Division
11. Now if the statement of the respondent herself is seen, she in her own statement stated: {{URDU TEXT}} She during cross-examination stated: {{URDU TEXT}} If the original advertisement Ex.R.1 on the basis of which respondent was employed by the appellant-bank is seen, in its Para 4 it itself clearly found mention that it was a contract employment for a period of one year extendable with the discretion of the appellant- administration and it was also provided that service of the respondent could be terminated by issuance of one month's notice. The applications for extension as mentioned above moved by the respondent clearly show that she was cognizant of the fact that her services were obtained on contract basis 3 expiring after a period of one year and that is why she had been applying for its extension which was allowed on the same terms and conditions as that of first contract employment order dated 14.04.2006 Ex.R.3. She has also admitted receipt of Ex.P.1, the letter dated 16.04.2013 whereby it was informed to her that her contract period was not being extended. The claim by the respondent that she was forced to sign the extension order under pressure, her services would be terminated seems after thought effort on her part to prove her stance that her service was a regular service rather than contract employment but unfortunately the documents on record do not are support the respondent's plea. The services of the respondent being contractual, the- appellant-bank authority did not feel it to further extend the same after expiry of the running contract period, hence no illegality was committed.
12. Learned counsel for the respondent tried to make out a case that contractual employees are also on the force of judgment cited as 1999 SCM R 2331 title Qayyum Nawaz and 9 others vs. N.W.F.P, Small Industries. Development Board, Peshawar through Managing Director, Kohat Road, Peshawar and 4 others fall within the category of work/workman and their services can be regularized but unfortunately that judgment is not applicable on the facts and circumstances of the present case.
Hence in these circumstances, the learned trial Court committed illegality while allowing the grievance petition, therefore impugned judgment dated 02.06.2014 is hereby set-aside and grievance petition filed by the respondent is hereby dismissed. File be consigned to the records room after due completion. The trial Court's records be sent back immediately.