This appeal arises from the decision, dated 3rd February, 1981 passed by the learned Presiding Officer, Punjab Labour Court No, 5, Faisalabad, whereby the grievance petition of the appellant for his re-instatement in service was dismissed.
2. The appellant was officer grade-III. He was firstly transferred to Azad Kashmir, but he apologised on account of domestic affairs. He was, therefore, transferred to Sargodha on 26th March, 1980 but he instead of complying with the order applied for leave on medical grounds from 5th March, 1980 to 15th April, 1980, vide application dated 24th May, 1980. He was treated as absent from Sargodha.
His services were terminated on 21st May, 1980. After the service of grievance notice Exh. P. 8, dated 30th June, 1980 he lodged grievance petition on 7th August, 1980. It was entertained by the learned Punjab Labour Court No, 4, Faisalabad as the learned Presiding Officer, Punjab Labour Court No, 5, Faisalabad was on long leave. Learned Presiding Officer, Punjab Labour Court No, 4 also went on leave, therefore, the appellant got his case transferred to Punjab Labour Court No, 1, Lahore. It appears that the transfer orders were either not communicated by the office of this Tribunal to the previous and the transferee Courts, or the orders were lost in the said Courts. But whatever the position may be, the orders were not placed on the file of the said Court. The appellant instead of informing the transferee Court, that the case had been transferred to it and requesting the Court to summon the case from Labour Court No, 4, Faisalabad, presented fresh grievance petition on 10th August, 1980 just on the following day of the transfer order secured from this Tribunal, Since the file of the previous case was lying in Court No, 4, notice was issued from that Court to the respondents for 2nd September, 1980. The appellant also appeared before Court No, 4 and made statement that he had brought another petition in Court No, 1, so he wanted to withdraw the case. On his statement copy Exh. D. 7, the Labour Court No, 4 dismissed the application as withdrawn. Later on the petition pending in Court No, 1, Lahore was, on the application of the respondents, transferred to Court No, 5, Faisalabad, as by that time the learned Presiding Officer of that Court had resumed duty.
3. The ground on which the services of the appellant were terminated is that he did not join at Sargodha, when he had been transferred and his post could not be kept vacant for indefinite period and that it was clear from his conduct that he did not want to serve the bank in accordance with its requirements. The stand taken by the appellant throughout was that he had not been relieved from Lahore and that he was suffering from kidney trouble, therefore, could not join at Sargodha. The same is the argument of the learned counsel for the appellant. He has also argued that since this Tribunal had issued the stay order, in an appeal which ended with the decision of the appeal after the order of termination was passed, therefore, failure on the part of the appellant to report at Sargodha did not amount to disobeying the order.
4. This is wrong that the appellant had not been relieved from Lahore to join the place of his new posting. He had been relieved, vide Exh. P. 5 from Lahore when he was transferred to Azad Kashmir.
Thereafter, the appellant never resumed duty at Lahore, therefore, no question of again relieving him from Lahore could arise. He did request, vide Exh. P. 4 to be allowed to resume duty at Lahore after his petition brought against his transfer to Azad Kashmir had ended, but the request was not accepted, vide Exh, P.
3. The appellant has not produced any documentary evidence that he had after being relieved from Lahore on his transfer to Azad Kashmir, resumed duty at Lahore. When his transfer to Azad Kashmir was cancelled and he was transferred to Sargodha, vide Exh. P. 4, he was directly asked to report at Sargodha. It is, therefore, manifest that he had been relieved from Lahore and should have reported at Sargodha.
5. The plea of the appellant that he was suffering from kidney trouble and for this reason did not go to Sargodha is equally without any substance. No doubt he did apply for leave on this ground, but his application was rightly disallowed as he did not send any medical certificate. The appellant had taken the plea in Exh. P. 4 against his transfer to Azad Kashmir that his father was dead and he being the head of the family could not go out of Lahore, but when he was transferred to Sargodha.
He forgot his earlier plea and contended that he had kidney trouble. The contradictory pleas taken by the appellant clearly show that there was no just cause for the appellant not to take over at Sargodha. This is noteworthy that the respondents did not take any hasty step in terminating the services of the appellant. He was transferred to Sargodha on 26th March, 1980 and was terminated on 21st May, 1980. Before terminating his services, he was offered opportunities to comply with the order of transfer and was found advert. The respondent had no other alternative but to terminate his services. Nobody would comply with the order of their superiors if uncomplied orders are cancelled. There is no force in the argument of the learned counsel for the appellant that in view of the stay order granted by this Tribunal, no action could be taken against the appellant. The Tribunal did not suspend the operation of the transfer order for the reason that the parties were at variance regarding the fact if the appellant had been relieved from Lahore. It appears that letter Exh. P. 5, whereby the appellant was relieved from. Lahore and transferred to Azad Kashmir, and letter Exh. P. 3 sent to him in answer to his letter Exh. P. 4, whereby his transfer to Azad Kashmir was cancelled and he was transferred to Sargodha and directed to join there, were not produced before this Tribunal when status quo order was issued, copy of which is Exh. P.
11. The letters referred to above were issued before the stay order, copy Exh. P. 11, was passed.
Process of handing over and taking over can take place only if the transferred employee is willing to hand over and his substitute is willing to take over. Since the appellant did not want to go to Azad Kashmir and thereafter to Sargodha, he may not have handed over the charge but he was not justified to defeat the transfer order by failing to relinquish the charge and then to plead that since he did not hand over the charge, he could not be terminated. Since the relieving order Exh. P.
5 had been issued to him, he ceased to remain posted at Lahore and should have taken over at Sargodha and status quo order, dated 29th September, 1980 issued by this Tribunal did not help him.
6. There is no force in the arguments of the learned counsel for the respondent that the lower Court has rightly held that the grievance petition lodged at Lahore was not competent. When two cases are pending on the same cause of action, one of them can be withdrawn and this was done by the appellant. If the second grievance petition had been brought at Lahore after withdrawing the petition from Labour Court No, 4, Faisalabad, of course it would have been incompetent because 'if a case is withdrawn without permission to bring a fresh one, the fresh case cannot be brought. The case withdrawn with permission to bring fresh case is not finally withdrawn but the plaintiff/ petitioner withdraws from the suit/ application, whereas a suit/ application withdrawn without permission to bring fresh one is finally withdrawn. Learned counsel has also said that since the proceedings were not made by Court No, 1, Lahore on the petition which was transferred to it from Labour Court No, 4, but new petition had been lodged by the appellant in Court No, 1, the latter Court had no territorial jurisdiction. This is true but Court No, 5 got jurisdiction when the case was transferred to it from Labour Court No, 1 and the defect stood removed. So the learned lower Court has wrongly held that the new petition lodged at Lahore and thereafter transferred to it was not competent.
7. Learned lower Court has also wrongly held that the appellant ceased to remain a workman after he was transferred as Manager at Sargodha. The appellant never took up and worked as Manager.
He could have been regarded as Manager from the time he had taken over and worked as such at Sargodha. Suppose if the leave applied for by the appellant had been allowed to him before he could take over at Sargodha, he would have been given not the pay of the Manager but the pay of Officer grade-III. Learned lower Court has failed to consider that the appellant has been described as officer and not Manager in his termination order Exh. P.
7. He was obviously not a Manager but an officer at the time of termination. It has not been argued that according to the nature of his duties as officer, he was not a workman. So he was a workman.
8. The appellant challenged the order of termination on this ground also that it was not passed by a competent authority. According to him, the Board of Directors was competent, whereas the order was conveyed to him by the Vice-President. This is not the case of the respondent that the Vice- President, Zonal Office, Sargodha was competent to terminate the services of the appellant Exh. D.
5 was produced to show that the Bank had decided to terminate the services of the appellant and authorised the Vice-President in this behalf. If the bank has its Board of Directors, they are competent to delegate their powers. If they have already delegated this power to any officer, then the resolution or order by which the delegation was made or authority was given should have been produced. The appellant has brought on the record copy of Articles of Association but it is incomplete. The onus was upon the respondent to show that the order of termination was a legal order. Since the order of termination of service has not been shown to have been passed by a competent authority, it is not sustainable.
9. As upshot of the observations made above, I accept the appeal and setting aside the impugned decision of the learned Labour Court and the order of termination of service, direct the re- instatement of the appellant. As the appellant has succeeded on a technical ground, he is not entitled to back benefits. The appellant shall join at Sargodha, after getting direction from the respondent, as due to the passing of considerable time, there may not be at present arising any vacancy then if the respondent wishes to post the appellant at Lahore, this order will not stand in his way,