DECISION Muhammad Siddique was employed as Conductor in the Government Transport Service, Lyallpur since 1963. His services were terminated by the District Manager on 1-10-1975. Feeling aggrieved he challenged the order of his termination in the Junior Labour Court. His petition was accepted.
However, back benefits were not allowed and the employer was directed to hold a fresh inquiry against the petitioner. The last para. of the order of the Junior Labour Court is reproduced below :- "The learned counsel for the respondent has drawn my attention towards the service record of the petitioner and I was shocked to learn that in 10 years of service the petitioner was fined on 65 occasions for charges of dishonesty against him. It shows that petitioner's conduct was unsatisfactory and the respondent had some justification to terminate his services. However, it is an admitted fact that procedure adopted by the respondent while terminating the services of the workman was illegal. I believe that the respondent has failed to interpret the law on the point correctly. Moreover, the witnesses produced by him have confirmed that petitioner was dismissed due to bad record of service. Naturally it was a case of misconduct and the respondent was supposed to adopt the laid down procedure to dispense with the services of a permanent worker.
In view of the bad record of service of the petitioner, I believe that the petitioner was not as innocent as he has pleaded to be in this Court. I, there- fore, order to re-instate the petitioner with immediate effect and direct the respondent to hold a fresh enquiry against the petitioner and after adopting all the formalities of law a fresh decision be given on merits. With regard to back benefits, it will be decided according to the decision of the fresh enquiry. In case the petitioner is held guilty in the enquiry he will not be entitled to receive the pay of this interim period. However, if the petitioner feels that in the fresh enquiry justice has not been done to him he would be at liberty to come to this Court under section 25-A of the I. R. O., 1969. The fresh enquiry must be finalized within a period of 20 days."
2. The employee has filed this appeal. His grievance is that the observation about back benefits and holding a fresh inquiry were uncalled for and these directions may be deleted.
3. The appellant was recruited in 1965. His services were terminated on 1-10-1975 by the following order :-- "Under the provisions of section 13, clause 1 of Road Transport Workers Ordinance, 1961, the services of Mr. Muhammad Siddique conductor CD-l7 are terminated with effect from 1-10-1975 A. N. He will be paid one month's wages on this account in lieu of notice.
He shall also be entitled to receive all other benefits viz. gratuity and G. P. Fund etc. permissible to him under rules."
4. The quotation of section 13, clause 1 of the Road Transport Workers Ordinance 1961 is erroneous. In fact section 13 does not exist in the Ordinance. The District Manager appears to have terminated the services of the appellant under Standing Order No. 12, clause 1. This provision was made applicable to the Road Transport Works by an Ordinance promul--gated in 1974. Clause 1 is as under :- "For terminating employment of a permanent workman for any reason other than misconduct, one month's notice shall be given either by the employer or workman. One month's wages calculated on the basis of average wages earned by the workman during the last three months shall be paid in lieu of notice."
5. The interpretation of the employer was that the employer had unfettered right to terminate the services of any employee. In his written argument submitted before the lower Court (page 65 of the record of the lower Court) the respondent stated the appellant was terminated on 1-10-1975 under the provisions of section 12, clause I of Standing Orders Ordinance 1968. The appellant's previous record was bad as per Exhs. D-1 to D-16 and 49 complaints against him. Reliance was placed on the authorities 1961 PLC 128 where it was observed :- "The employer terminating services of a permanent worker by giving one month's notice in writing or one month's pay in lieu of notice plus gratuity needs not assign any reason for terminating services. An employer has full liberty to terminate services of a permanent worker by giving notice of one month and giving him gratuity admissible as the case may be. It is not necessary for the employer to give any reason for terminating the services of a workman under this provision of law."
6. The above authority relates to the year 1961 but the law on the question of termination has been changed from time to time and at present clause 3 of Standing Order No. 1 has placed some restrictions on the employer. This clause provides that the services of a workman shall not be terminated nor shall a workman be removed, retrenched, discharged of dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. The law has placed two restrictions on the employer before he can terminate the services of any workman. The first restriction is that an order must be passed in writing and the second restriction is that the employer must state the reason for terminating the employment. In some previous case I had discussed the case of a permanent workman with a particular view whether his services can be terminated. My view was and I still hold the same opinion that the services of a permanent workman cannot be terminated unless the employer can show that the post against which he was employed has been abolished. If there is any other reason it will amount to misconduct and the employer is bound under the law to adopt the procedure of punishment given in Standing Order No. 15. Now it is not the discretion of the employer to terminate the services of a permanent worker and he is not at liberty to remove him from service without assigning any reason. The position is that the District Manager was not competent to terminate the services of the appellant under the provisions of clause 1 of Standing Order No. 12. It is not the case of the respondent that the post against which the appellant was working has been abolished. In the present case 16 charge-sheets have been placed on record. The lower Court was also shown that during the last ten years the appellant was fined on 65 occasions for charges of dishonesty etc. All this material was immaterial for the purpose of this case. The impugned order is ab initio illegal and the lower Court could only declare it illegal and nothing else. It was not the duty of the lower Court to advise the employer as to what to do against the appellant. It was beyond the scope of the lower Court to say that any fresh inquiry should be held. In 1975 PLC 158 it was observed that such a direction amounts to encourage the management to terminate the services of a workman. As the order of the employer was ab initio illegal, therefore, the natural consequence would be that the appellant was entitled to get his back benefits. Reliance in this case can be placed on a Supreme Court case, Divisional Superintendent, N.W. R. Lahore v. Muhammad Sharif (1963 PLC 696).
7. In fact, a new situation has arisen in this case. The employer got encouragement from the order of lower Court. After re-instating the appellant, a charge sheet was served on him on 5-1-1.976. Now the charge levelled against the appellant was that on 27-9-1975 he misbehaved with a cashier while he came to him to deposit cash. This allegation has nothing to do with the order passed on 1- 10-1975. The question is whether the employer is competent to hold any inquiry against the appellant in this rise. The law, about making an inquiry as given in Standing Order No. 15, was amended on 21-12-1975 by the Labour Laws (Amendment) Ordinance 1975. According to the amendment made in clause 4 of Standing Order No. 15 it is incumbent on the employer to hold an inquiry within one month of the date of misconduct. No inquiry was started within one month and so the employer bas been debarred under the new amendment to hold the enquiry after such a long time.
8. The result of the above discussion is that I hereby direct that no inquiry shall be held against the appellant with respect to his previous conduct and that the appellant shall also be paid the back benefits. The remarks of the lower Court about back benefits and fresh inquiry shall stand deleted.
The appeal is accepted in the above terms.