DECISION ' This is an appeal against the order, dated 8-8-1990, passed by the learned Presiding Officer, Sindh Labour Court No IV at Karachi, whereby the grievance petition filed by the appellant was dismissed.
I have heard Mr. Gohar Iqbal, learned counsel for the appellant and Mr. A. Hafiz, learned Advocate for the respondents and have also gone through the record and proceedings of the case.
3. The appellant was admittedly employed by the respondents for three months vide letter, dated 30-12-1987. His services were further extended for three months by letter, dated 28-3-1988. His services were terminated by an order, dated 28-6-1988. Agrieved by this order he served grievance notice upon the respondent and then filed grievance petition in the Labour Court which was resisted by the respondent on, the ground that the appointment of the appellant was temporary and his services were terminated on expiry of the period of his appointment by an order in writing and that after accepting dues in full and final settlement of his claim, he could not take his grievance to Labour Court.
4. The appellant has examined himself and filed his affidavit-in-evidence in which, he claims that he was engaged on a work of permanent nature but just to circumvent the labour laws and deprive workers of permanent benefits the management of the respondent never provided permanent status to the workers including the appellant under the garb of temporary appointment. In the cross-examination, however, he has admitted that he was appointed temporarily. He has denied in his cross-examination that the job on which he was employed was temporary. He had also admitted that during his employment he was issued temporary Identity Card. It may be pointed out that respondent did not examine any witness in rebuttal.
5. The determining factor for the purpose of status of the workers is the nature of job. On which he was employed. If he was employed on a job of permanent nature, which is likely to last for more than 9 months, then he would be considered to have been appointed as a permanent worker, after he successfully completed three months' period of probation. However, if he was employed on a job of temporary nature which is likely to last for nine months then even if his employment exceeds nine months he would continue to be a temporary employee. Reliance in this respect is placed on PLD 1980 Supreme Court 323:
6. In the instant case the appointment order Annexure`A' to the grievance petition shows the work on which the appellant was engaged was of temporary nature. As pointed above even the appellant has admitted that he was appointed on temporary basis though he claims that work on which he was employed was of permanent nature but there is no evidence to show that even after termination of service the work that he had done was done by somebody else or somebody else was appointed in his place. The respondent, as pointed C above, has examined no witness to show the nature of work on which the appellant was employed.
7. However, in his grievance notice the appellant had not claimed that he was appointed on job of permanent nature and furthermore even in his grievance petition he has not prayed for relief that he be declared as a permanent employee of the respondent. Therefore, I need not discuss this issue further.
8. The termination order of the appellant may be reproduced as under:- "We refer to your letter of temporary employment dated 30-12-1987 and have to advise you that your employment in the Company will come to an end/shall stand terminated on the close of work on 28-6-1988.
' Please collect all your legal dues from the Staff Payment Cell of the Company."
' This letter would show that his services were terminated because his employment in the company was of temporary nature which came to an end. It does not specifically show that his services were terminated because the work for which he was employed had been completed. The appellant had put in more than three months' service and, therefore, his service could not be terminated even if he had been employed to do the work of temporary nature unless that work itself had been completed.
9. Mr. A. Hafiz contended that in the letter of termination reference has been made to his temporary employment letter dated 30-12-1987 and therefore it could be inferred that his services were terminated because of completion of work. Standing Order 12(3) requires that the order of termination shall be in writing which shall explicitly state the reason for the action taken. The reason in termination letter cannot be inferred by reference to some other letter but had to be explicitly stated. Word 'explicit' has been defined in Black's Law Dictionary to mean "not obscure or ambiguous, having no disguised meaning or reservation. Clear in understanding". The words 'close of work on 28-6-1988' used in termination order do not refer to the closure of work for which the appellant was employed but only refer to 'close of daily work' viz. `end of working day'. Even Mr. A.
Hafiz did not argue that the word 'close of work' pointed out the closure of work for which the appellant was employed.
10. In the case of M/s. Dawood Hosiery Mills, Karachi v. Hazrat Muhammad Yousuf and others 1975 PLC 48 the learned Single Judge of Sindh High Court at Karachi-held that it would appear from Standing Order 12(3) that termination order has to be in writing and it must disclose cause of the termination. In the case of Aitzaz Ahsan and others v. Chief Election Commissioner, Lahore reported in PLD 1989 Lahore 1 a Division Bench of Lahore High Court held that every word of statute had to be given effect. Standing Order 12(3) is penal in nature as it terminated the services of an employee therefore every word of Standing Order 12(3) has to be strictly construed and has to be given effect.
11. However, even a temporary employee is entitled to the protection contained' under Standing Order 12(3) which provides that no worker should be removed from service except with an order in writing which shall explicitly state reason for the action taken.
1/ Reference in this context be made to the case of Pakistan International Airlines v. Sindh Labour Court No,5 and others PLD 1980 Supreme Court 323 wherein their Lordships have held that provision of. Standing Order 12(3) were applicable to all the workmen whatsoever. Reliance is also placed on the case of Pak Cement Company Limited, Iskandarabad v. Punjab Labour Appellate Tribunal and another 1990 PLC 233.
13. In an unreported decision of this Tribunal in Appeal No, KAR-76 of 1990--Mushtaq Ahmed v. M/s. Hoechst Pakistan Limited, decided on 4-9-1990 (1991 PLC 698), the services of the temporary workman had been terminated by the same respondents by way of an identical order. This Tribunal held that such an order, which does not explicitly state the reason for termination, was not sustainable and therefore it was set aside.
14. Mr. A. Hafiz, learned counsel for the respondents, however, contended that after accepting full and final dues the appellant was debarred from seeking relief through the Labour Court.
Admittedly the appellant received Rs, 2,242 from the respondents. He excepted Ex. R/1 which shows that the said amount was received by appellant on termination of his employment in full and final settlement of all his dues and claims of whatsoever nature against the said company in respect of said company's employment. It may be pointed out that the appellant is admittedly a `Matriculate' and had admitted his signature on Ex. R/1. He has also admitted that Ex. A/1 was given to him for obtaining 'Clearance Note' from the Store-Keeper. This Ex. A/1 shows that the appellant, who was temporary worker, was leaving the company on 28-6-1988 and therefore the Store-Keeper and Departmental Manager were requested to sign 'Clearance Note' in order to clear anything that was outstanding against the employee. His plea that he was asked to receive the money without being informed anything is belied by the admission with, regard to Ex.A/1. He being an educated person could not be said to be ignorant of the document Ex.A/1 which was admittedly given to him to obtain 'Clearance Note' and receipt Ex.R/1 which admittedly bears his signature. This contention is also belied by the fact that he did not return the said amount immediately after the order of termination, but returned it after nearly four months viz. On 23-10-1988 by a cheque. It is also not elear if this cheque was encashed and accepted by the respondents. Mr. A. Hafiz has relied upon certain decisions of this Tribunal and other Superior Courts to show that after receipt of all dues in full and final settlement the workman Cannot be considered as an aggrieved person.
15. In the case of M/s. E.L.M. (Pakistan) Ltd. v. Syed Anwar Ali and others 1985 PLC 978 this Tribunal had held that 'petitioner already in receipt of all dues in full and final settlement was no longer an aggrieved person'. In the case of Mirza Majeed Baig and others, v. M/s. Futehally Chemicals Ltd. 1973 PLC 297 a Division Bench of Sindh High. Court held that 'where petitioners before filing petition in High Court acquiesced with the order of Industrial Tribunal by receiving all their dues including notice pay, provident fund, gratuity were precluded from filing petition under Article 98 of the Constitution of Pakistan, 1962. In the case of Muhammad Pervaiz v. M/s. Exxon Chemicals (Pak) Ltd.
1984 PLC 786 the petitioner had signed the stamped receipt in token of receipt of his dues in full and final settlement. His contention was that such receipt could not be treated as full and final settlement because he was entitled yet to his Provident Fund and that such receipt represent only wages but the receipt was not to the effect that it was only on account of the amount of wages and no question was suggested to the witness of the employer that after having signed such receipt any other dues still remained to be paid to the petitioner. This Tribunal under the circumstances upheld the decision of the Labour Court that the petitioner had ceased to be an aggrieved person. In the case of Rehman v. Sindh Labour Appellate Tribunal and others 1983 PLC 210 a Division Bench of Sindh High Court held that "where amount representing accrued wages, notice salary and provident fund collections were tendered througll cheques by employer alongwith termination order and such cheques were accepted and encashed by workman without demur, his right to invoke jurisdiction of Labour Court stood extinguished".
16. Mr. Gohar Iqbal, on the other ,hand, relied upon the deeision of learned Division Bench of Lahore High Court reported in the case of Climax Engineering Company Ltd Gujranwala v. Shabib Ahmed and another 1985 PLC 400 wherein their Lordships held that ''by acceptance of dues which the workmen had earned while serving, he had not forfeited his right to challenge termination of his service," In that case the aforementioned decision reported in 1973 PLC 297 had also been discussed and distinguished. It was observed:- ' It may be correct that when an employees services are terminated and he accepts all his dues in final settlement of the dispute between him and his employer and virtually says good-bye 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 the 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 so 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 services because a worker ex facie would be needing the money for his daily livelihood. It would be too much to presume that a worker can forego his wages for service rendered and carry on a litigation against termination of his services."
17. It may also be pointed out that this question as to whether employee who after his dismissal applied for clearance of his entire service dues and received his salary, provident fund, customary bonus and encashment of privilege leave could refer to Labour Court for reinstatement is under consideration before their Lordships in the case of General Manager, National Radio Telecommunication Corporation, Haripur v. Muhammad Aslam and others 1991 SCMR 86, in which leave to appeal has been granted by the Hon'ble Supreme Court.
18. Even in the aforementioned case of Mirza Majeed Baig their Lordhips of the Sindh High Court had observed:- "Now though it may not be strictly correct to say that by accepting the aforesaid payments the petitioners have precluded themselves from filing this petition, it certainly stands to reason, that having done so, they cannot be said to be a party aggrieved by the impugned orders within the meaning of the expression used in Article 98 of the late Constitution of 1962. I am, therefore, obliged to come to the reluctant conclusion that notwithstanding my disagreement with the impugned orders the present petition must fall and it would even otherwise be improper to grant the discretionary relief in favour of the petitioners."
It will be seen in all the aforementioned cases workman after receipt of legal dues had been precluded from bringing his grievance to the Labour Court. The workman had apart from wages received other legal dues i,e, gratuity, notice-pay etc. Etc. In the instant case no doubt that the appellant had received Rs2,242.10 which is more than his monthly wages but written statement clearly show that they were dues of his wages which means that there were arrears of dues of wages which were paid in lump sum on 28-6-1983. Under the circumstances I am inclined to respectfully agree with the view of the learned Division Bench of Lahore High Court that acceptance of wages for the period during which the employee had served and to which he was entitled to, cannot debar him from challenging, the same before a competent Court or Tribunal. No doubt the appellant had signed the receipt which shows amount was in full and final settlement of all his claim but that would not absolve the employer from compliance of Standing Order 12(3). In the aforementioned case of Pakistan International Airlines reported in PLD 198a SC 323 their Lordships held that employer cannot contract out of law. Standing Order 12(3) requires that the employer should gave explicit reason for termination of employee which has not been done in this case. The acceptance of wages for the period the appellant worked would not debar him from approaching the Labour Court. His signing the receipt by which he accepted his wages in full and final settlement of all his claim against the respondent would not absolve the respondent employer from compliance of Standing Order 12(3).
19. Under the circumstances the impugned order of the learned Labour Court as well as order of termination of the services of the appellant are set aside. The appellant is ordered to be reinstated in service with full back benefits.
20. The order to be implemented within one month.