Athar Minallah, C.J. Through this petition, the petitioner, Nazma Bibi (hereinafter referred to as the "Petitioner") has assailed judgment, dated 27-10-2015, passed by the Full Bench of the National Industrial Relations Commission (hereinafter referred to as the "Commission"), whereby the appeal preferred by Allied Bank Limited (hereinafter referred to as the "respondent Bank") was allowed.
2. The Petitioner was employed as Telex Operator. She was nominated in a criminal case and pursuant thereto arrested on 11-12-1997. The respondent Bank issued charge sheet, dated 10-01- 1998, wherein besides absence from duty, grave allegations were mentioned. It appears from the record that the Petitioner had submitted her reply but vide letter, dated 24-01-1998, she was informed that the envelope contained a blank paper. A notice of inquiry was issued on 30-03-1998 followed by notice of inquiry, dated 02-04-1998. However, pursuant to legal advice, the respondent Bank vide order, dated 04-05-1998, terminated the services of the Petitioner. It was explicitly stated that the termination was simplicitor in nature. It was further informed that the disciplinary proceedings had been dropped. The reason for termination was stated i.e. the post of Telex Operator could not be left vacant for an indefinite period. The Petitioner was released after obtaining bail on 16-07-1998. She approached the competent authority for reinstatement in service but her request was denied. The Petitioner filed a petition under section 22A(8)(g) of the Industrial Relations Ordinance, 1969, before the Commission. The Commission suspended the termination letter vide order, dated 16-12-1998. The respondent Bank challenged the interim order and W.P.
No.194/1999 was disposed-of by the learned Lahore High Court, Rawalpindi Bench vide order, dated 10-02-2004. The Commission was directed to dispose-of the petition filed by the Petitioner. The Commission referred the matter to the learned Labour Court, Islamabad for disposal in terms of section 22A(10)(c) of the Industrial Relations Ordinance, 1969. After recording of evidence and upon conclusion of the proceedings, the learned Labour Court set-aside the impugned order, dated 06- 10-2005. The appeal preferred by the respondent Bank was not entertained by the Commission for want of jurisdiction. The said order passed by the learned Full Bench of the Commission was challenged by the respondent Bank through W.P. No.3269/2005 titled "Allied Bank Ltd v. Nazima Bibi & another" before this Court. The petition was subsequently decided vide order, dated 31-10- 2008. Pursuant to the decision of this Court, the appeal was heard and it was allowed by the Full Bench of the Commission. The judgment of the learned Labour Court was set aside.
3. The learned counsel for the respondent Bank has placed reliance on a judgment of the august Supreme Court titled "Allied Bank Limited v. Zulfiqar Ali Shar and others" [2021 SCMR 1213]. He has contended that the termination in simplicitor did not suffer from any legal infirmity. He has laid great stress on paragraph 9 of the judgment. With the able assistance of the learned counsel, the judgment has been carefully perused. The august Supreme Court has held that the reasons given for termination in simplicitor are justiciable and that a competent forum is empowered to set it aside if in its opinion the reason was not sufficient, valid or appropriate. It has been further held that the scope of inquiry of the competent forum was to be limited to the extent of determination; whether or not the reasons given by the employer justify its action for termination in simplicitor were explicit, clear, enough and valid. The competent forum cannot set aside the termination of service in simplicitor merely on the ground that the process for dismissal from service for misconduct i.e. issuance of show cause notice, regular inquiry and order of dismissal had not been followed. It is noted that the facts involved in the aforementioned judgment were distinct. In that case the employee was convicted and sentenced to undergo rigorous imprisonment for 12 years.
The employer had waited for almost five years and thereafter it had concluded that the services of the employee would no longer be available during the period of his imprisonment.
4. In the case in hand, the Petitioner was arrested on 11-12-1997 and subsequently released on bail on 16-07-1998. On the basis of evidence recorded by the learned Labour Court, the latter had concluded that the post against which the Petitioner was working had not been filled. Moreover, the respondent Bank had taken the position before the learned Labour Court that the Petitioner was involved in alleged misconduct. The reason stated in the termination order in simplicitor was that since the Petitioner was incarcerated, therefore, the respondent Bank could not keep the job vacant. It was on this ground that the disciplinary proceedings were dropped and order of termination in simplicitor was issued. The competent authority had approved the termination in simplicitor on 02-05-1998. As already noted, the Petitioner was released on bail on 16-07-1998 and admittedly the post remained vacant till then. She was subsequently acquitted and the post continued to remain vacant. The reason for absence of the Petitioner was also known to the respondent Bank as is evident from a plain reading of the charge sheet, dated 10-01-1998. The Petitioner was released on bail after seven months from the date of her arrest. She had reported for duty but the respondent Bank refused to review her termination in simplicitor despite the fact that the post was vacant since it was not filled. In the facts and circumstances of the case in hand, the reason mentioned in the order of termination in simplicitor, dated 02-05-1998, was not sufficient, valid nor appropriate. The disciplinary proceedings were dropped by the respondent Bank. Since the vacant position was not filled, therefore, there was no reason for the respondent Bank not to allow the Petitioner to resume her duties. This Court is satisfied that the reason given by the respondent Bank did not justify the action for termination in simplicitor. The reason was not enough, valid nor in consonance with the principle of reasonableness. The learned Labour Court had correctly appreciated the evidence and its conclusion did not suffer from any legal infirmity.
The learned Full Bench of the Commission without adverting to the evidence recorded by the learned Labour Court had set aside the judgment. Moreover, the learned Full Bench had also not considered whether in the facts and circumstances, the reason mentioned in the order of termination in simplicitor was sufficient, valid or appropriate. In the light of the principles and law enunciated by the august Supreme Court in the case titled "Allied Bank Limited v. Zulfiqar Ali Shar and others" [2021 SCMR 1213] this Court is satisfied that in the facts and circumstances of the case in hand, as already discussed, the reason mentioned in the order of termination in simplicitor was not sufficient, valid or appropriate.
5. For the above reasons, the petition is allowed and consequently the judgment of the Commission, dated 27-10-2015, is hereby set aside.