This is an appeal from the decision of the Punjab Labour Court No. 2, Lahore, dated 9th of May, 1977, whereby the grievance petition filed by the respondent was accepted and a direction was issued to the appellant to reinstate him forthwith will full back benefits.
2. The respondent was employed as a Security Guard under the administrative control of the appellant. On 26th of September, 1974, the respondent and four other employees were referred to Dr. M. Rafiq Chaudhry of Gulberg Hospital, Lahore for medical examination to determine their effectiveness for security assignments vide Exh. RW-1/3. On 27th of September, 1974, Dr. M. Rafiq Chaudhry medically examined the respondent --and observed: "His eye-sight is extremely weak and cannot improve with glasses. He is unfit for the job" vide Certificate Exh. RW-1/4. On the basis of this certificate, the appellant vide his order, dated 14th of March, 1975 (Exh.RW-1/5) terminated the services of the respondent with immediate effect in exercise of the powers vested in him under Article 6 of the . Economic Reforms Order, 1972. On 17th of April, 1975 the respondent filed a grievance petition under section 25-A of the Industrial Relations Ordinance, 1969 praying for the reversal of the termination order and his reinstatement with full back benefits. He averred that he had represented on 31st of March, 1975 vide Exh. PB that Dr. M. Rafiq Chaudhry had on 3rd of December, 1974 advised, "Mr. Maseeta needs the services of an Eye Specialist for opinion and treatment" but the appellant remained uncommunicative. According to him, the termination order was illegal as it was mala fide and had been passed without any formal inquiry in violation of the principles of natural justice.
3. The appellant resisted the grievance petition. It raised preliminary objections to the effect that Pakistan Engineering Company Limited of which the respondent was an employee, had been taken over by the Government of Pakistan under the Economic Reforms Order, 1972. And the termination order passed by its Managing Director was immune from challenge in the Labour Court secondly that the respondent was not a workman as defined in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and, therefore, the grievance petition filed by him was not maintainable and thirdly that since the respondent did not serve a grievance notice, he was incompetent to file the grievance petition. On merits, it was contended that the termination order had been passed lawfully and bona fide on the basis of the medical report. It was averred that there was no requirement of holding a formal inquiry in case of retirement or termination of services of an employee.
4. The respondent examined two witnesses including himself in support of his grievance petition. In rebuttal also, two witnesses appeared on behalf of the appellant. The learned Labour Court observing that since the termination order was mala fide, it could be challenged in the Labour Court, that the respondent was a workman and could invoke the provisions of section 25-A of the Industrial Relations Ordinance, 1969, that in view of the provisions of the omitted subsection (6) of section 25-A of the Industrial Relations Ordinance, 1969, service of a grievance notice was not a condition precedent to the filing of a grievance petition and that the termination order having been passed without an inquiry offended against the principles of natural justice, accepted the grievance petition and directed the appellant toreinstate the respondent with full back benefits:
5. Feeling aggrieved, the appellant has filed the instant appeal.
6. The appeal for the first time came up for hearing before Mr. Justice (Retd.) M. Jamil Asghar who on 29th of September, 1977 acting as Appellate Tribunal, accepted the appeal and set aside the decision of the Labour Court on the ground that since the termination order had been passed by the Managing Director exercising his powers under Article 6 of the Economic Reforms Order, 1972, the Labour Court had no jurisdiction to interfere in the matter. The respondent assailed this order in the High Court by way of Writ Petition No. 3559 of 1977. The High Court vide its judgment, dated 19th of May, 1979 .Did not uphold the view of the Appellate Tribunal and observing that the authority given by law under Article 6 of the Economic Reforms Order, 1972 did not make the Managing Director the absolute arbiter for all times to come of the terms and conditions of the employees under him, declared the order of my learned predecessor as without lawful authority and remanded the appeal for its decision on merits.
7. Second time the appeal was heard by Mr. Justice (Retd.) Muhammad Abdul Ghafoor Khan Lodhi as Appellate Tribunal. He observing that on merits the respondent might have some case but the difficulty was that the respondent was not covered by the definition of workman as given in section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, accepted the appeal and set aside the decision of the Punjab Labour Court No. 2, Lahore, dated 9th of May, 1977, vide order dated 9th~of December, 1981.
8. Feeling dissatisfied, the respondent again filed Writ Petition No. 5951 of 1982 in the High Court but it was dismissed on 17th of January, 1983. The respondent filed an appeal by special leave in the Supreme Court. The Supreme Court vide judgment, dated 13th of October, 1990 accepted the appeal, set aside the orders of the High Court and the Appellate Tribunal and remanded the appeal for its decision on merits holding that the respondent was a workman as the duties assigned to him entailed physical labour within the meaning of section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
9. This time the appeal has been heard by me the controversies regarding the status of the respondent as a workman and the jurisdiction of the Labour Court to interfere in the matter already stand resolved in favour of the respondent by the judgments of the High Court and the Supreme Court referred to above. As regards the grievance notice, the learned Labour Court has held that in view of the provisions of the omitted subsection (6) of section 25-A of the Industrial Relations Ordinance, 1969, which was in the field at the relevant time, it was not a condition precedent to the maintainability of a grievance petition. Learned counsel for the appellant has not addressed arguments on this point. Otherwise also, the finding of the Labour Court on this point is unexceptionable.
10. On merits, it was averred in the grievance petition that the termination order was passed without holding a formal inquiry and it contravened the principles of natural justice. In reply, it was contended by the appellant that there was no requirement to hold a formal inquiry in case of retirement or termination of services of an employee. The respondent deposed as P.W.1 that no inquiry was held against him before terminating his services. This testimony was not challenged in cross-examination. It is admitted by learned counsel for the appellant that the services of the respondent were terminated by way of retirement on medical ground without holding a formal inquiry. It was admittedly a premature retirement. The respondent had a vested right to continue in service till he attained the age of superannuation and since the premature retirement adversely affected his vested right, he was entitled to an opportunity of hearing. This opportunity was denied to him. Therefore, the impugned order terminating his services by way of premature retirement being in violation of the principle of audi alteram partem, was manifestly unsustainable. Otherwise also, the medical opinion on the basis of which the respondent was prematurely retired, had been considerably diluted by the doctor himself when he advised on 3rd of December, 1974 that the respondent needed the services. Of an Eye ;Specialist for an opinion arid treatment. This fact was brought to the notice of the 4ppellant on 31st of March, 1975. There is on record a medical certificate. Which was issued by Dr. Ramzan Ali Syed, a renowned Eye Specialist, on 10 of October, 1975. According to it, the respondent was declared fit for duty as' Chowkidar. The respondent had summoned both Dr. M. Rafiq Chaudhry and Dr. Ramzan Ali Syed. On a perusal of the record of the Labour Court, it reveals that Dr. Ramzan Ali Syed had appeared in the Court once but his statement was not recorded. Subsequently, after the case of the respondent was transferred twice from one Labour, Court to the other, he made a statement closing his evidence. This statement was made in the absence of counsel for the respondent. It appears to have been made rather in exasperation.
All these circumstances tend to show that the basis on which the respondent was prematurely retired, was not sound enough. Anyhow, since the order of termination by way of premature retirement offended against the principles of natural justice, it cannot be upheld.
11. In the result, I affirm the decision of the learned Labour Court and dismiss this appeal.
12. It was pointed out during arguments by learned counsel for the appellant that the respondent had during the pendency of this appeal attained the age of superannuation. This fact was admitted by learned counsel for the respondent. In view of this fact, the impugned decision of the learned Labour court shall enure till the date of the normal retirement of the respondent on attaining the age of superannuation.