' In this appeal the decision, dated 23rd June, 1980 passed by the learned Presiding Officer, Punjab Labour Court No, 4, Faisalabad has been challenged, whereby the grievance petition of the appellant for his re-instatement in service was dismissed.
2. The services of the appellant were terminated vide order, dated 18th February, 1980, copy of which is Exh. P. 3, for the reason that cash credit account of an account holder had been adjusted, so his services were no longer required. He was a godown keeper. The case of the respondent was that the appellant was appointed temporarily for a customer from whose account he was being paid and that when the accounts of that account holder had been adjusted, his services were no longer required and, therefore, the termination of his services was justified.
3. It has been argued by the learned counsel for the appellant that there is no concept of temporary employee in the Wage Commission Award, therefore, even if it is said that the nationalised banks are governed by the said Award, the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 would apply to the appellant since there are no rules about temporary employees in the Wage Commission Award. On the other hand, it has been argued by the learned counsel for the respondent that since there is no mention of temporary employee in the Wage Commission Award, it would not mean that the banks cannot employ persons temporarily or that such persons would be deemed to be permanent employees. He has also argued that since there is no provision and rule about temporary employees in the Wage Commission Award, the temporary employees would be governed by the conditions given in the service agreement. The learned counsel for the respondent has drawn my attention to the statement of the appellant, wherein he admitted that he was appointed for two and a half months and that he was not allowed annual increment and was not allowed to mark his presence in the attendance register. He has also argued that since Standing Orders Ordinance, 1968 is not applicable and there is no provision in the Wage Commission Award, there is no right guaranteed to the appellant by any law and, therefore, his petition under section 25-A was not maintainable. It has also been argued that since the appellant was not in service and it has not been shown that any industrial dispute concerning him was pending, therefore, he is not covered by the definition of workman given in section 2 (xxviii) of the Industrial Relations Ordinance, 1969. The learned counsel for the respondent has made reference to payment sheets of pay Exhs. R-37 to R-46. These sheets show the withdrawals and deposits by and in favour of the appellant and on the top of some of them the names of Abdul Aziz & Co. And on others Maqbool Ahmad and Mahmood Ahmad are written. This is immaterial from whose account pay was being paid to the appellant. Since admittedly the appellant was employed by the respondent-bank, he was the employee of the respondent-bank and cannot be said to be the employee of some other person. If there was any private agreement between the bank on one side and the customers of the bank on the other, the appellant is not bound by it not being a party to the said agreement. It was an internal arrangement and private agreement between the bank and its customers and on account of any such agreement the appellant cannot be taken to be the employee of any other company and not the respondent. If the goods of some customer were lying in the godown of which the appellant was the godown keeper, it makes no difference so far as the case of the appellant is concerned.
Since the appellant was deputed on the godown to work in it and was employed by the bank, he was the employee of the bank. These sheets contain the entries from 29th August, 1978 to December, 1979, meaning that the appellant remained in service for more than a year. The witness of the appellant stated that the appellant was working from 13th October, 1977 and worked upto February, 1980 continuously. Mr. Muhammad Rafiq.
' Accountant, (R. W.-1), however, stated that the appellant had not been working continuously and that there were breaks in his service after every two and a half months. He also stated that the appellant was the employee of the pledger and not of the bank and was paid from the accounts of Ch. Abdul Aziz & Co. Ghulam Qadir & CO., Muhammad Sharif. Lal Din and Sher Muhammad etc. He also stated that he had not been working in the office. The appellant and his witness (P. W.-1), however, stated that the appellant worked continuously as cashier-cum-assistant. The learned counsel for the appellant has cited PLD 1980 SC 323 on the point of definition of permanent workman given in the Standing Orders Ordinance, 1968. Firstly, admittedly Standing Orders Ordinance, 1968 is not applicable to taken over banks and for this reason the authority is not helpful ; secondly, the interpretation made by the Supreme Court of the words 'likely to be' appearing in Standing Order 1 is not helpful to the respondent, because the appellant worked as godown keeper not just few days more than nine months but rather for about two years. It, therefore, cannot be said that the work for which he was employed may not have been completed for some unforeseen reasons within nine months. He was employed till the goods were lying in the godown. It has not been shown whether the loan taken by the persons whose pledged goods were lying in the godown, was for a fixed period. Copies of the termination orders and the copies of re-appointment orders alongwith the applications for employment have been brought on the record by the respondent. On the other hand, the appellant has relied upon the statement of salaries Exh. P-1.
Statement Exh. P-1 shows that the pay for every month was paid. In some entries the name of the month is given and in some it is not given. Most of the entries are such that where salaries of extra work are given alongwith the monthly salaries, there the names of the months are not given. The gaps shown by the appointment orders and the orders of termination do not tally with the statement of pay Exh. P-1. II in reality the appellant had not worked continuously, the gaps during which he remained out of service would have been shown in the statement also by displaying that pay for that period was not credited to the appellant. The learned lower Court, therefore, has wrongly found that the appellant was a temporary employee.
4. Although the appellant appears to be a permanent employee, but it does not mean that his services could be terminated at no time. Since his services were not terminated on account of any misconduct, therefore, it cannot be said that for not observing the legal formalities, the termination was illegal. He was employed as godown keeper and the case of the respondent is that since the goods were removed on the close of the accounts of the customers, his services were no longer required. There is no evidence on the record led by the appellant to the effect that his services were still required at the time he was terminated. Exhs. R-37 to R-46, as mentioned above, show that the appellant was employed as godown keeper for the goods of the customers of the bank. Since the accounts were settled and the goods of the customers were removed, there was no necessity of retaining the appellant in service. The assertion of the appellant that he had been working as clerk in the bank does not stand established. If for sometime when there was no work in the godown he was made to work as clerk it would not mean that he became a regular employee as clerk and had a lien over the post. According to the case of the respondent, the appellant was never made to work as clerk in the bank. If in reality the appellant had discharged any other duties in the bank, it was not difficult for him to summon that record to show that he had been working in any other capacity than a godown keeper. The registers maintained and the entries made by him could show that in reality he had been working in some other capacity in the bank than merely as godown keeper.
5. I do not find any force in the argument of the learned counsel for the respondent that since the appellant was not in service at the time he brought the grievance petition, he was not covered by the definition of workman given in section 2 (xxviii) of the Industrial Relations Ordinance, 1959. No doubt the words "is employed" are used in the definition but they do not mean that the employee concerned must be in service at the time he brings the grievance petition. If this view is taken, it would mean that no dismissed or terminated person has any right to go to any Court. In the definition of 'civil servant' given in the Civil Servants Act also present tense is used and not past tense. So, the intention of the Legislature by using the present tense in the definition was certainly not that the persons who are out of service cannot challenge the orders of their termination in any forum.
6. Since the appellant was a permanent employee, his services could be terminated under paragraph 234 of the first Wage Commission Award The said paragraph provides that after the expiry of the period of probation the services of an employee can be terminated on one month's notice or one month's pay in lieu of notice, but in the present case this was not done. The order of termination, therefore, not being covered by the provision of paragraph 234, is not legal and the appellant continued to be in service. There is no force in the argument of the learned counsel that the appellant had no guaranteed right, therefore, could not bring application under section 25-A.
The rights of the appellants were protected by paragraph 234 of the first Wage Commission Award, therefore, he rightly came to the Labour Court for the infringement of that right.
7. As a result of the observations made above, I accept the appeal and setting aside the impugned decision of the learned lower Court, and the order of termination, direct the reinstatement of the appellant in service. He will remain in service till he is legally terminated. However, since on technical grounds which is that without one month's notice or payment of one month's pay in lieu of notice, his services were terminated, he is not entitled to back benefits.