1. MD. NURUL HUDA (CHAIRMAN). The petitioner in this case is Syed Ahmed. He has filed this application under section 25 (1)(46) of the East Pakistan Employment of Labour (Standing Orders)
2. Act; 1965. It is alleged by the petitioner that he had been serving under the second party Messrs Bengal Agencies since 1-3-1967 and that by an order dated 31-12-1969 the second party has terminated his services with effect from 1-1-1970, for gross negligence of duty and insubordination.- This termination, according to the petitioner amounts to dismissal, as he was nit given any chance to submit his explanation in defence.
3. The order of alleged termination is illegal, void and mala fide. It is further alleged that the second party issued a notice dated 31-8-1969 stating that the services of the existing staff would no longer be required from 1-9-1969. The petitioner further alleges that in spite of this notice he was retained in service and accordingly paid wages for September and October 1969. He says that wages for the month of August and December 1969 are due to him. The petitioner prays for re-instatement in service and alternatively he has also prayed for other reliefs, which may be found proper.
4. The second party by a written objection has denied the material allegations of the petitioner. Their contention is that the services of the petitioner, were terminated with effect from 1-9-1969 and he was released from the services. A fresh letter of appointment was issued to the petitioner on 1-10- 1969 and he joined his duties: Thereafter his services were terminated with effect from 1-1-1970 for some misconduct.
5. The points arising for our determination in this case are as follows:
(1) Was the petitioner continuously in service till his removal on 1-1-1970?
(2) Is the order of termination of service with effect from 1-1-1970 illegal and mala fide?
(3) To what relief, if any, is the petitioner entitled?
6. DECISION Points 1 to 3. -The petitioner alleges that there was no break in his service till he was removed on 1- 1-1970.
7. It appears that a notice was I issued dated 31-8-1969 stating that the services of the existing, staff would be no longer required from 1-9-1969. The petitioner signed this notice on 31-8-1969. The notice states that two months salary have been granted to each of the staff. The petitioner denies to have got any wages in' lieu of notice. He averts that he was continuing in service even after the notice. He issued a grievance petition, but that was not replied by the: second party, in which grievance petition, the petitioner made this averments of his continuous service. A fresh letter of appointment is given to the petitioner. True copy of the same is in record. It slows that it was dated 1-9-19469. But the date has been changed to 1-10-1969. It further shows that the petitioner was directed to resume his duties with effect from 3-9-1969 and this date has again beers changed to 10-10-1969. The petitioner's signature is there on this true copy dated 4-10-1969. The petitioner has said id his deposition under what circumstances he toot this 'appointment letter. The petitioner has taken oath and, deposed to support his claim of continuity in service. On the side of the second party one man deposed, who, it appears has mo personal knowledge about the things that happened before US joining in service of the second party some two months back. That being so this witness has not been cross-examined soy tithe petitioner. The deposition of the petitioner regarding his continuity in service goes unalleged. Of course, he has subscribed his signature .to the notice of retrenchment with effect from 1-9-1969 and the appointment letter alleged to be dated 1-10-1969. Inhis, petition he has detailed the circumstances under which these things happened. In his grievance petition too he has also made allegation against these papers. But the allegations go unreplied by the second party. The termination of the petitioner with effect from 1-1- 1970 is not a termination simpliciter. It gives the petitioner the calamity of insubordination and gross negligence of duty, which come under the definition of misconduct. On a perusal of the entire evidence and circumstances, I have no manner of doubt that the petitioner continued in service up to the date of his termination on 1-1-1970 and that the alleged termination of service is illegal.
8. Considering the fact of the financial position of the second party company and considering the fact that the petitioner has prayed alternatively for reliefs available to him under the law. I do not- think that I should order- for re-instatement in service and thus thrust the petitioner upon the unwilling employer. Instead I want to give the petitioner full termination benefits.
9. In passing the order I have considered the opinions of the learned Members. I am not in agreement with the opinion of Mr. Meerza, who has opined that the case is not maintainable, nor I am agreeable to accept the view of the other Member Mr. Sabur when he suggests for re-instatement.
10. As regards other views of Mr. Sabur. I am in agreement so far as the continuity of service of the petitioner up to 1-1-1970.
11. The petitioner will get the reliefs indicated below. Hence, ORDERED That the application of the petitioner be allowed on contest The petitioner will get termination benefits as follows:
(1) 3 months' notice pay at, Rs: 135.00 per month
(2) Compensation .for 42 days, wages;
(3) Arrear wages for the months of August and December1969; and
(4) Earned Leave salary, if any, due.
12. The second party is directed to pay up the amounts as indicated above to the petitioner within, one month from today.
13. The second party do also issue a termination certificate to the petitioner as provided under section 1 ' of the Standing Orders Act, 1965 within the above period.