DECISION ' This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No, III at Karachi, dated 15-11-1990, whereby he dismissed the grievance petition of the appellant.
2. I have heard Mr. Muhammad Yousuf Khan, learned representative for the appellant and Mr. Ch. Muhammad Latif Saghar, learned Advocate of the respondents and have also gone through the record and proceedings of the case.
3. The brief facts of the case are that admittedly the appellant was appointed as Assistant Manager in Metallurgy Section of the respondents w,e,f, 2-12-1987. On 28-8-1988 he received a memo. Charging him that he was not taking interest in the work assigned to him from time to time and that he lacked initiative. On 30-8-1988 his services were terminated without holding any enquiry. After service of the grievance notice upon the respondents he filed grievance application before the learned Labour Court which was resisted by the respondents mainly on the ground that the appellant was not workman and secondly that he after receiving his dues had no locus standi to file grievance petition.
4. It is settled law that it is not the salary of the workman or his designation which are sole criterion for deciding whether he was workman, but it was the nature of work done by the employee which would determine his status as workman. Reliance is placed in this respect on the case of Security Papers Limited v. Sindh Labour Appellate Tribunal PLD 1988 Supreme Court 180. In the instant case the appellant has stated in the petition as well as in his affidavit in evidence that he had to work with his own hands as after receiving the pattern from the Manager Technical, he used to cast the pattern in metal and submit it to Manager Technical. This appears to be his main duty. This statement is not specifically challenged in his cross-examination. However, in the cross- examination it was suggested to him that he was drawing pay of more than Rs,1,500 and that he was working under supervision of Technical Manager who was working under subordination of superior officers and in this way there were some subordinates under him also. The mere fact that some subordinates were working under him will not affect his status as workman if he was doing manual work, unless it is proved, that manual work was done by his subordinates. There is no such proof. No 'Job Description' of duties performed by the appellant has been produced by the respondents. A letter of appointment Ex. 3-A only shows the 'terms and conditions of his service' and not his duties. In view of the above facts, the learned Labour Court has rightly held the appellant to be a workman.
5. Admittedly the services of the appellant were terminated without holding enquiry in spite of fact that in the Memo. Dated 28-8-1988, there were charges of misconduct against him. This Memo. Has been produced as Ex. R/1, therefore, termination order Ex. R/2 without holding enquiry is not tenable.
6. However, the respondents contend, that after this termination order the appellant had submitted his resignation. This resignation has been produced as Ex. 3-B. The appellant in his cross- examination admitted the signature on this application. In this application he had requested that he may be released from 30-9-1988. This application, is also dated 31-8-1988 but prior to this application the services of the appellant had been terminated vide Order Annexure A-R/2. It was suggested to the appellant in the cross-examination, that he requested the management to accept his resignation instead of treating his services terminated. This evidence would show that the resignation submitted by the appellant was not voluntary but was tendered only to avoid the 'stigma' of having been terminated from service which stigma might have barred his employment anywhere else. Such resignation, in fact, would be under coercion and duress and cannot be considered as voluntary. After the termination of services of the appellant by the respondent in which order there is no reference to resignation respondents were functus officio and could not have accepted his resignation without withdrawing the order of termination first. There is no such order of withdrawal of order of termination. In fact apart from the 'noting' on the resignation application, that it was accepted, there is no formal letter issued by the respondents accepting the resignation of the appellant. Therefore the resignation, if any, would not legalise an illegal order of termination of his services. It may also be mentioned that even in the Certificate issued by the respondents, which is produced as Annexure R/3 there is no mention of his resignation. This leaves us with the question whether after having received dues the appellant could file the grievance petition. The appellant has admittedly received dues for the month of September as per Ex.R/5, which shows the appellant received Basic Salary, House Rent,. Conveyance and refund of Professional Tax for the same month.
7. In the case of Deputy General Manager, Dubai Bank Ltd. And another v. Umer Hayat and others 1988 PLC 595, learned Labour Appellate Tribunal Punjab has held that 'payment of service dues, like notice period pay, gratuity, leave encashment to employee would not operate as estoppel from moving grievance application.'
8. In the case of Muhammad Ilyas v. Messrs United Carpet Limited 1989 PLC 583 this Tribunal has held that 'where worker had not only received his legal dues but also received ex gratia payment in pursuance of agreement arrived at between the management and the worker, he was not an aggrieved person and as such not entitled to file grievance petition.' It may be noted that there is no ex gratia payment in the instant case.
9. In the case of National Construction Ltd. v. Saleem Anwar Baloch 1982 PLC 652 this Tribunal had held that 'A workman who received full and final settlement of dues during pendency of grievance petition could not be considered an aggrieved person and petition was not maintainable thereafter'. It may be noted that receipt of dues in reported case was during the pendency of the dispute in the Court and therefore it was held that he ceased to be an aggrieved person thereafter.
10. In the case of Climax Engineering Company Ltd., Gujranwala v. Shoaib Ahmad and another 1985 PLC 400 learned Division Bench of Lahore High Court had observed as under:- "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 employes-workers. They cannot be expected that when their services arc 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 [heir 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 for service rendered and carry on a litigation against termination of his services."
11. In the case of Hameed Ahmad Khan v. Presiding Officer, Fourth Sindh Labour Court Appeal No, KAR - 192 of 1990, decided on 14-3-1991, this Tribunal, after discussing various case-law on the issue came to the conclusion:- "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 cannot debar him from challenging the same before a competent Court or Tribunal."
12. In the case. Of Climax Engineering Company Ltd., Gujranwala v. Shabib Ahmad and another 1985 PLC 400, learned Division Bench of Punjab High Court held that 'where employee accepted money for the period during which he had served he could not be presumed to have accepted termination of his service as well thus debarring him from challenging before a competent Court or Tribunal.'
13. In the case of Ghulam Nabi v. Messrs Siemens Pakistan Engineering Company Ltd. And another 1984 PLC 359, learned Labour Appellate Tribunal Balochistan held as under:- "The question as to whether or not an employee could agitate his' grievance with regard to removal from service after he had accepted the dues would very much depend on the facts and circumstances of each case. The crux of the matter in each case would be as to whether or not the acceptance of the dues was coupled with a settlement outside the Court specifically indicating that such settlement was arrived at by burying all the disputes and claims, admitting the fact of removal from service as a bona fide and just act. But in such cases, where the employee had not demanded the dues in token of his having dropped his grievance of removal from service or a final settlement of all the disputes etc.; it would be deemed that by accepting the dues on the directions of the employer or even on his own demand, but without accepting the act of removal from service as a legal and valid act, he could still agitate the matter successfully before a Court of law as the cause of action accruing to him still subsisted."
14. Mr. Muhammad Latif Saghar has also placed reliance on the case of The Chairman, PIAC and others v. Nasim Malik PLD 1990 Supreme Court 951. In that case their Lordships had observed as under:- "We are of the view that the respondents after having made a request for treating his resignation as termination and after having received financial benefits in the form of more than Rupees one lac plus the benefit of pension etc., it was not open to him to re-agitate the question that his resignation was obtained by the appellants under duress and coercion."
' The instant case is obviously distinguishable from the reported case as in the instant case in the resignation application Ex. 3-B the appellant has not requested that earlier order of termination service may be treated as resignation nor had he accepted any amount in excess of salary earned by him.
15. The appellant has been held to he a 'workman'. The termination order Annexure R/2 is not tenable as it has been passed in pursuance of Memo: Annexure R/1 where there is charge of misconduct against the appellant. This order of termination cannot be legalised because of alleged resignation of the appellant after his services were terminated by above termination order.
The termination order had not been withdrawn and no formal order had been passed accepting the resignation of the appellant. The acceptance of dues viz. The salary etc. Earned by the appellant for the month of September would not disentitle him from filing grievance petition.
16. In view of the above discussions I allow the appeal, set aside the impugned order of the learned Labour Court and order of termination of the appellant and order him to be reinstated in service with fifty per. Cent back benefits. The order to be implemented within one month.