Through the instant judgment, I propose to decide the above mentioned eight cases as similar questions- of law and facts are involved.
2. The necessary facts for disposal of these cases, as per the memo. of petitions, are that the Respondents No. 3, in all the instant petitions before this Court, filed Grievance Petitions under Section 33 of the Industrial Relations Act, 2012 ("Act, 2012") read with KPK Industrial and Commercial Employment (Standing Orders) Relations, 2013 against the Petitioner. Each of them prayed for declaration that the Petitioner's act of precluding them for work is illegal and for direction to pay salary with all back benefits. The Petitioner contested the same and filed its written statements wherein the Petitioner alleged that the Respondents No. 3 had resigned from their respective position and filed complete record pertaining to the appointments, resignations, clearance certificates signed by the Respondents No. 3, copies, of crossed cheques through which payment was made to the Respondents No. 3 and also copies of the service certificates along with confirmation of receipt. However, the learned Single Bench, National Industrial Relations Commission ("NIRC"), after recording evidence accepted the Grievance Petitions of Respondents No. 3 vide Order dated 28.12.2020 ("Impugned Order I"). Being aggrieved of the decision of learned Single Bench, NIRC, the Petitioner filed appeals before the learned Full Bench, NIRC who vide the Order dated 22-11-2021 ("Impugned Order II") dismissed the appeals filed by the Petitioner, hence the instant petitions.
3. The learned counsel for the Petitioner submitted that the conclusion reached by the learned NIRC is factually incorrect and contrary to the record as the documents produced in evidence clearly establish that the Respondents No. 3 resigned from their positions which resignations were duly accepted by the Petitioner. He argued that the decision reached by the learned NIRC whereby the Respondents No. 3 have been reinstated in service with back benefits is based on surmises and conjectures and not based on the record and that the learned Full Bench, NIRC has not applied its independent mind. He further stated that once an employee has accepted clearance certificate he can no longer challenge termination. In this regard he relied upon clearance certificates purportedly signed by the Respondents No. 3 produced in W.P.s No. 4269/2021, 05/2022, and 06/2022 as Exhibit R/3 and R/4 respectively and in W.Ps No. 4274/2021, 4275/2021, 4277/2021 and 09/2022 as Mark R/C and Mark R/D respectively. According to the learned counsel for the Petitioner the learned Single Bench, NIRC erred in not exhibiting the clearance certificates in W.Ps No. 4274/2021, 4275/2021, 4277/2021 and 09/2022 despite the fact that they were produced in original.
Lastly he submitted that the NIRC has no jurisdiction in the matter as termination which is not in relation to an "industrial dispute" does not lie with the NIRC and it falls within the jurisdiction of the Labour Court even if the Petitioner Company is a trans-provincial entity. He relied upon Pak Arab Refinery Limited vs. Muhammad Rashid, 1999 SCMR 373, Mustekhum Cement Limited vs. Abdul Rashid, 1998 SCMR 644, Gulzar Hussain Shah vs. The Chairman Sindh Labour Appellate Tribunal, 1999 PLC 348 (Karachi High Court) and Muhammad Tahir Suhaib vs. Muhammad Ali Jinnah University, Karachi, 2017 PLC 244 (Sindh Labour Appellate Tribunal).
4. The learned counsel for Respondents No. 3 submitted that the Petitioner is a trans provincial company having its head office in Islamabad , therefore, NIRC has jurisdiction. He conceded that the provisions of KPK Industrial and Commercial Employment (Standing Orders) 2013 do not apply in the present cases and provisions of Industrial and Commercial Employees (Standing Orders)
Ordinance, 1968 are applicable. He argued that the termination of Respondents No. 3 was not by way of resignation, which is evident from the circumstances as correctly appreciated by the learned NIRC. He argued that it is inconceivable that the Respondents No. 3 would resign voluntarily and that such resignations would be accepted on the same day and on the very next day clearance certificates were also issued without notice period and/or payment of salary in lieu thereof. He further pointed out that according to Ex.P/07 produced in the W.P. No. 4277/2021 the Additional Deputy Commissioner, Haripur reported that the Petitioner has terminated about 150 employees illegally as such he denied that the termination of the Respondents No. 3 disguised as resignation was not an "industrial dispute". Lastly, he submitted that there are concurrent findings against the Petitioner which do not warrant interference by this Court under Article 199 of the Condition.
5. Arguments advanced by the learned counsel for the parties have been heard and the record has been examined.
Jurisdiction
6. I will take up the objection regarding jurisdiction of the NIRC raised on behalf of the Petitioner first and foremost. Such objection is not maintainable in view of the fact that unlike the Industrial Relations Ordinance, 1969, pertaining to which the learned counsel cited case law, under Section 54(h)(i) of the Act, 2012 it is one of the functions of the NIRC to deal with cases of "individual grievances" in the mariner prescribed in Section 33 of the Act to exercise exclusive jurisdiction over the establishment or group of establishments situated in the Islamabad Capital Territory and trans-provincial. Bare reading of the Act shows that Section 34 of the Act provides for raising of "industrial disputes" whereas Section 33 of the Act deals specifically with redress of individual grievances. Since the Petitioner is admittedly a trans-provincial company whether the Respondents No. 3's grievance was "individual" or an "industrial dispute" in both cases it is the NIRC that has exclusive jurisdiction and not the Labour Court.
7. The same has already been observed and held by another Single Bench of this Court in the case titled Pakistan Telecommunication Company Limited vs. Muhammad Dilpazeer Abbasi, 2016 PLC
367. Reference may be made to the following excerpt: "9. The petitions were filed by the private respondents under Section 33 of the Act and in this behalf the petitioner raised objection that the same could not have been done inasmuch as the provisions of Section 33 ibid can only be invoked for redressal of grievance with respect to any right guaranteed or secured to a worker by or under any law or any award or settlement for the time being enforced; under Section 54(h) of the Act the Commission has the power jurisdiction to deal with cases of individual grievance in the manners prescribed in Section 33. In this behalf the individual grievance of a worker/workman can be exercised in the manner/mode provided in Section 33 ibid. Moreover, under Section 54(i) Respondent No. 2 also has exclusive jurisdiction over establishment or group of establishment situated in Islamabad Capital Territory and which are trans-provincial, therefore, in view of the referred position of law the objections by the petitioners that the jurisdiction of Respondent No. 2 could be invoked by worker/workman only vis- a-vis enforcement of any right/settlement or award is without any substance." [Emphasis added].
Resignations
8. As far as findings of fact are concerned as to whether the Respondents No. 3 resigned or not there are concurrent findings of facts that the learned NIRC disbelieved the Petitioner's allegation that the Respondents No. 3 resigned voluntarily. It is settled law that a High Court in exercise of its Constitutional jurisdiction does not act like a Court of appeal. It neither reappraises evidence nor does it substitute the concurrent findings of fact recorded by the lower fora with its own findings solely on the ground that another view is possible on the same evidence. A party approaching the High Court under Article 199 of the Constitution has to demonstrate that there is a gross misreading or non-reading of evidence or jurisdictional error or such legal infirmity that has caused miscarriage of justice. No misreading or non-reading of evidence has been pointed out by the learned counsel for the Petitioner in the Impugned Orders to the extent of the decision of the NIRC that the alleged resignations of the Respondents No. 3 were voluntary.
Acceptance of Dues
9. Having said that even if it is to be assumed that the Respondents No. 3 did not resign but their employment was terminated by the Petitioner, examination of the Impugned Orders I and II shows that there is no discussion or finding regarding the effect of full and final acceptance of dues despite the fact that it was specifically stated in the Petitioner's written statements that the Respondents have received and acknowledged their full and final settlement and as such are no more aggrieved therefore are not entitled to challenge the termination. The learned counsel for the Petitioners relied upon Gulzar Hussain Shah vs. The Chairman, Sindh Labour Appellate Tribunal , 1999 PLC 348, wherein it was held: "The petitioner admittedly received his dues as per letter, dated 20-9-1991, which included salary of 24 days, over time, gratuity and leave encashment. Mr. Gohar lqbal, learned counsel for the petitioner argued that said letter is a "Pay Roll Sheet" and was not a document of final settlement. In Monthly Pay Roll Sheet Gratuity is not paid. Learned counsel failed to offer and satisfactory explanation regarding receipt of gratuity. It appears that although the payment was made on Pay Roll Sheet, but in fact, it was in final settlement of claim of the petitioner. It is settled proposition of law that a workman, voluntarily having received all dues in full and final settlement of account ceases to be an aggrieved person and has no grievance left on the basis of which he could invoke the jurisdiction of the Labour Court. The fact that the petitioner had obtained Service Certificate indicated that he was satisfied and for that reason he had accepted willingly all his dues." [Emphasis added].
10. Similarly, a Division Bench of the Honourable Lahore High Court in the case reported as Climax Engineering Company, Ltd., Gujranwala v. Shoaib Ahmad and another, 1985 PLC 400 held that: "It may be correct that when an employee's services are terminated and he accepts all his dues in final settlement of the dispute between him and his employer and virtually says goodbye to his employer, he accepts the termination of his service and having done so he would not be entitled to challenge the same subsequently because having parted company with consent and grace, he cannot turn round and repudiate what he had earlier done. However, it will be entirely different if an employee's services are terminated and he is handed out the dues which he had earned while serving. He has the right to accept payment as he had served. By acceptance of payment for the past service he does not forfeit his right to challenge the termination of his service. In the case in hand, the dispute is between the employer and the employee. The employer cannot say that if he terminates the services of his employee, the latter cannot even accept the payment for the period during which he had served the employer and if he does that, he gives up his right to challenge the termination of the service. The acceptance of money for the period during which the employee had served, he was entitled to and by the acceptance thereof, he cannot be presumed to have accepted the termination of his services as well as to debar him from challenging the same before a competent Court or Tribunal. The relevant law deals with the grievances and rights of the employees-workers. They cannot be expected that when their services are terminated, they should either not accept the money for the period for which they had rendered services, or, they will be debarred to challenge the order of termination of their service because a worker ex facie would he needing the money for his daily livelihood. It would be too much to presume that a worker can forego his wages far service rendered and carry on litigation against termination of his services in the case in hand, the two documents relied upon by the petitioner are Annexures E' and 'F'. Annexure 'E' is the report prepared by the Accountant of the petitioner relieving the Respondent No. 1. What an employer does in his office that will obviously not create a disadvantage for the employee. As regards Annexure 'F', about which the learned counsel for the petitioner states that by signing this, the Respondent No. 1 has settled his accounts and said that there was nothing due to him from his employer and that amounts to acceptance of dismissal, thereby debarring him from petitioning the Labour Courts against the order of dismissal, the following facts may be noted: Firstly, it is a printed receipt prepared by the petitioner on which the Respondent No. 1's signatures are affixed. The learned appellate Tribunal has said that the document does not show the details of the payments made and, therefore, does not operate as estoppel. He is quite right. Secondly, this document by no means gives an impression or idea that the Respondent No. 1 had accepted the fact of his dismissal from service or its validity. Further, if it be recapitulated for what reasons the Respondent No. 1 was dismissed, it will be recalled that the petitioner had dismissed him for note accepting the order of termination of his service, by saying that it was disobedience amounting to misconduct. It is like saying that if an employer issues an order to an employee to cut his throat and the latter refuses to accept the order, it will amount to that the employee had disobeyed the order and therefore, committed misconduct and consequently liable to be dismissed from service.
This will be perversity of the highest order. In the circumstances of the case as given above, there was no justification for the petitioner to have dismissed the Respondent No. 1 and the latter was not debarred to bring his grievance before the Labour Courts under Section 25-A of the Industrial Relations Ordinance, 1969. The decisions impugned in this petition were within the jurisdiction of the special Tribunals and cannot be said to be without lawful authority and of no legal effect.
Exercise of Constitutional jurisdiction is not called for at all. The petition is totally without merit or force. It is, accordingly, dismissed in limine." [Emphasis added].
11. The takeaway is that where the employer pays and the employee accepts payment for services such as monthly salary/wages in the usual course, such acceptance shall not bar him from challenging his termination of employment as he cannot be expected to refuse compensation for his services in order to retain the right to challenge termination of his employment. However, where an employee voluntarily accepts payment of dues which are paid at the time of full and final settlement, for example provident fund, gratuity, leave encashment, etc. he ceases to be an aggrieved person. Therefore, not only is it relevant for the NIRC to see whether the employee has accepted payment of dues in full and final settlement of account, the NIRC is also required to determine keeping the facts and circumstances involved in each case as to whether or not such acceptance was voluntary. The Court in Climax Engineering Company Ltd., Gujranwala (Supra) took note of the fact that the receipt on which the employee had affixed his signature was printed by the employer and did not include details of payments made. Keeping the foregoing in view as well as the background in which the termination was carried out, the Honorable Lahore High Court opined that the document does not show that the employee had accepted the fact of his dismissal from service or its validity and as such upheld the tribunal's decision to reinstate the employee with all back benefits and dismissed the Constitutional jurisdiction of the employer in limine.
12. As observed herein above, there is no finding of fact rendered by the NIRC vide the Impugned Orders whether the Respondents No. 3 accepted payment of dues for services rendered or whether the clearance certificate relied upon by the Petitioner represents full and final settlement of benefits due upon termination and whether such acceptance was voluntary or not. The Impugned Order II passed by the learned Full Bench NIRC does not reflect any independent application of judicial mind.
13. In the instant case, it is also noted that the Petitioner's examination-in-chief in W.Ps No. 4274/2021, 4275/2021, 4277/2021 and 09/2022 records that clearance certificates marked as "Mark R/C" and "Mark RID" were produced in original yet the same have not been exhibited rather marked.
The only objection recorded was that the said clearance certificates are fake and fictitious.
However, the same objection was raised in respect of the clearance certificates produced in W.Ps 4269/2021, 05/2022 and 06/2022 but they were exhibited and rightly so as it must be borne in mind that admissibility of evidence and proving the same are two separate matters and distinct requirements. Mere admissibility into evidence of a document does not automatically mean that its execution and/or contents stand proved, authenticated or admitted by the other side. In fact once the document is admitted into evidence only then can it be determined whether the same is fake and fictitious or not as alleged by the Respondents No. 3.
14. Courts/Tribunals have to ensure that documents produced in evidence are endorsed in accordance with Order XIII, Rule 5. C.P.C., unless the same are found inadmissible in which case they are to be rejected as per Order XIII, Rule 4, C.P.C. In case an objection is raised to the admissibility of any documentary evidence the Court/Tribunal must determine such objection.
Where the Court considers a document relied upon as evidence by either side to be inadmissible, it shall endorse the particulars as stipulated in Order XIII, Rule 6, C.P.C., together with a statement of it having been rejected. As per Order XIII, Rule 7(2), C.P.C., documents not admitted in evidence shall not form part of the record and shall be returned to the person producing it. In the instant case, the clearance certificates are on the record in W.Ps No. 4274/2021, 4275/2021, 4277/2021 and 09/2022 but neither exhibited nor rejected as required under Order XIII, C.P.C.
15. In view of the foregoing discussion, the above titled writ petitions are allowed. Both the Impugned Orders I and II are set-aside and the matters are remanded to the learned Single Bench.
NIRC to hear and decide whether or not the respective Respondents No. 3 in each of the instant petitions voluntarily accepted his/her full and final settlement of dues and the effect thereof in light of the observations made herein above and for purposes of the same to determine the admissibility of the marked clearance certificates.