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Constitutional Petition No. 795 of 1976, decided on 11th May, 1982.

(a) Industrial Relations Ordinance (XXIII of 1969)‑

‑‑S. 25‑A‑Greivance petition against termination of service-----Amount representing accrued wages, notice salary and provident fund collections tendered through cheques by employer alongwith termination order‑Such cheques accepted and encashed by workman without demur‑Right to invoke jurisdiction of Labour Court Extinguished. B

Messrrs Sethi Straw Board Mills Ltd., v. Punjab Labour Court No. 3,

Lyallpur and 2 others 1976 P L C 901 distinguished.

(b)

West Pakistan

S. 2 (i)‑"Workman"‑Mali‑Whether of not a workman‑Point neither raised before Labour Court nor before Labour Appellate Tribunal during proceedings under S. 25‑A of Industrial Relations Ordinance, 1969‑Question of applicability of Ordinance raised only before High Court in Constitution petition‑Not considered by High Court‑Constitutional jurisdiction‑Constitution of Pakistan (1973) Art. 199 read with Industrial Relations Ordinance (XXIII of 1969), Ss, 25‑A & 38.

Employees' Union v. Pakistan Security Printing Corporation Ltd. P L D 1977 Kar. 790 ref.

M.L. Shahani for Petitioner.

Shaikh Haider for Respondent.

Date of hearing :11th May, 1982.

ABDUL HAYEE KURESHI, C J.‑

The petitioner Rehman was employed as a Mali by the respondent M(s. Pak Mineral Dressing & Processing Ltd. Karachi. On 3‑3‑1976, his services were terminated in accordance with the Standing Order 12 of the Standing Orders Ordinance. The termination order which is Annexure "A" on the record, shows that the management of the respondent‑firm had decided that there was no need for "Mali" in the establishment, and the post had been abolished. It was further stated in the termination order that the legal dues alongwith one month's notice pay in lieu of notice, with effect from 3rd March, 1.976 were being paid alongwith the termination order. At the foot of the said letter, it was stated that two cheques respectively for amount of Rs. 1,151.43 and Rs. 1,117.34 together with the statement of account had been enclosed. It is the common ground between the counsel that the first cheque represents the dues on account of wages together with notice salary and the second cheque represents the Provident Fund collection to the credit of the petitioner. It is admitted case that the cheques received by the petitioner were in fact credited in bank for collection of the amount. No date in respect of the collection of these amounts has been specifically stated, but in common course of banking, a cheque would normally take one to two days for collection so that it would be reasonable to assume that the two cheques had been encashed by the petitioner by 5‑3‑1976. However, the petitioner again on 6‑3‑1976 served a grievance notice on the respondent employer within the meaning of section 25‑A of the Industrial Relations Ordinance, wherein it was. stated that his services had been terminated in violation of law and such action was mala fide because of the petitioner's trade union activities. It is significant to note that in this grievance notice dated 6‑3‑1976, the petitioner did not mention in regard to the two cheques received by him or encashed by him. The said notice of the petitioner was replied to by the respondent employer on 19th March, 1976, wherein allegations of wrongful termination of the services of petitioner were repelled. The petitioner, thereafter filed an application under section 25‑A of the Industrial Relations Ordinance, praying that the dispute between him and the employer may be adjudicated upon, and the respondent employer be directed to re‑instate the petitioner in service with full back benefits. It may be pointed out that even in this application before the Labour Court, the petitioner had not disclosed that he had received the amount of the two cheques from the respondent employer or had credited the amount in his own account in bank. Preliminary legal objections were submitted by the respondent employer wherein it was stated as follows :‑

"(1) That the applicant's services were terminated on 3‑3‑1976 and all his legal dues were paid by means of cross‑cheque bearing No. CW‑10083, dated 3‑3‑1976 (United Bank Ltd.) and No. SBL 985799, dated 3‑3‑1976 amounting to Rs. 1,151.43 and Rs.[1,117 34, respectively. (Photo copies of termination letter is attached hereto and marked as Annexure "A".

(2) That the applicant received and encashed the above referred two cheques pertaining to his provident fund and other legal dues in full and final settlement, as such there exists no relationship of employer and employee in between the parties. Hence this hon'ble Court has no jurisdiction to entertain, hear and adjudicate upon the matter in dispute."

On such state of affairs, the Labour Court was moved by the respondent to dismiss the application of the petitioner and in that regard, the Labour Court recorded its conclusion on facts in the following words :‑

" ....After some time, however, the applicant sent his own cheques to the respondent on 27th of March, 1976, as is evident from the envelope produced by the respondent. The applicant . has thus kept the amount sent by the respondent from 9th of March, till 27th of March, 1976. It can, therefore, reasonably be presumed that in fact the applicant had no grievance against respondent at the time of receipt of the cheques and that is why he also encashed and that he returned the amount after a lapse of about 18 days at the instance of some one ......

An appeal thereafter was filed before the Sind Labour Appellate Tribunal against the order of the Labour Court. The learned Tribunal also dismissed the appeal on the same process of reasoning as was adopted by the Labour Court, The only point that has been urged by Mr. M. H. Shahani was that the mere fact of the petitioner's having accepted the notice pay and provident fund, would not disentitle him to maintain the application for his re‑instatement. He has‑further urged before us that in fact the amount sent to the petitioner by the respondent employer was returned by the petitioner to the respondent.

We would like to dispose of tile second .part of the argument of Mr. Shahani in the first instance, On this ground whether the petitioner had returned the amount received by him from the respondent employer, there is total absence of evidence. In the grievance notice that was given by the petitioner, he had not stated that he had accepted the amount under protest or with demur. Likewise, in his application under section 25‑A of the Industrial Relations Ordinance before the Sind Labour Court, the petitioner had not stated that he had received any .amount from the respondent employer or later on had returned the same to them. The stands before the Sind Labour Appellate Tribunal were also none the different. Even in the Memo. of Petition filed before this Court, it has not been stated by the petitioner, that the amount received by him from the respondent employer, had been returned to them. Under these circum stances, it would be safe to come to the conclusion that the petitioner had received the two cheques sent to him alongwith the termination order dated 3‑3‑1976 and such cheques, as admitted by the petitioner at the bar, were encashed by him.. 4On the point of return of the amount,‑ since there is no evidence, we safely come to the conclusion that this amount had not been returned, but. has been appropriated.

The next contention is whether the petitioner by accepting the amount had disentitled himself to the relief. As stated above, there were two separate cheques representing the accrued wages together with salary in lieu of notice, and the provident fund collection of the petitioner respectively. Both these cheques were accepted and ericashed by the petitioner. The first protest that the petitioner made after the service of notice of termination was on 6th March; 1976 wherein, he did not refer or make any reference at all to the fact of his having accepted the two cheques in full and final settlement of his dues. Since the full payment had been accepted by the petitioner, it would appear that he had no grievance to make, and the rest of the proceedings have been undertaken by the petitioner on a second thought. In that regard, the learned Labour Appellate Tribunal has, after recording its finding on facts, staffed that the objection was raised by the petitioner after a lapse of 18 days, which appeal to have been taken at the instance of some person, Such instances are not unknown. Mr Shahani has, however, referred to a judgment of the learned Single Judge of Lahore High Court in the case of Messrs Sethi Straw Board Mills Ltd. v. Punjab Labour Court No. 3 Lyallpur and‑2 others (1976 P L C 901). Our attention was invited to paragraphs 7 and 9 in the said judgment which appear on page 904. In: paragraph 7, a contention raised at the bar, has been stated in the following words :‑

" ..Secondly, it is contended that having himself finally settled his accounts with the employer and being satisfied, he had no cause of grievance at .all to take to the Labour Court."

'The contention was considered in paragraph 9 of the judgment which, reads as follows :‑‑

" It is disputed whether satisfaction recorded by the respondent was total, complete or only partial and incomplete. This being a question of fact will not be gone into and even if a workman receives what is due to him, he can still lay a claim for what was due to him but has not been paid. 1n other words, part acceptance of the entitlement does not imply surrender of abandonment of that part which has not been received,"

On a reading of paragraph 9 of the aforeasid judgment it would appear that there was a factual dispute in that case and the workman's case was that he had not been paid his wages at all. The instant case is completely distinguishable, because nowhere the petitioner had raised the contention that he had not been paid his wages or that the cheques which were sent to him were not credited to his account and encashed. The case is, therefore, clearly distinguishable. We are, therefore, clearly, of the view that the petitioner by accepting the accrued wages, notice salary and his provident collection had expressed satisfaction, and he had no grievance left provided the basis of which he could invoke the jurisdiction of the Labour Court.

Mr. Shahani further contended that since no evidence has been led on the point that the petitioner was entitled to arty further amount than what has been paid to him, the order of termination of services of the petitioner was male fide. We are of the view that this argument is completely misconceived. By his conduct, the petitioner had accepted the stand of the respondent in regard to the wages and dues payable to the petitioner, and such amount having been tendered by the respondent and accepted by the petitioner, extinguishes any right which the petitioner had.

Although the point has not been raised before the Labour Curt and the Labour Appellate Tribunal in regard to the applicability of the West Pakistan Industrial and Commercial Employment Ordinance to the service of 'Mali', the point has been urged before us by Mr. Abdus Samad. He lots contended before us that the petitioner being a Mali' is not entitled to any protection under the Standing Orders Ordinance, because 'Mali' can not be termed to be a "worker" or a "workman" within the meaning of section 2 of the Standing Orders Ordinance. He has invited our attention to the judgment of a Division Bench of this Court in the case of Emp loyees' Union v. Pakistan Security Printing Corporation Ltd. (P L D 1977 Kar. 790) We have only recorded this contention without giving any consideration for the simple reason that this point had not been raised by the respondent before the inferior Tribunals nor has the respondent raised this contention in his affidavit. We have thought it fit to incorporate this contention for the weighty reason that the present Chief Justice of Pakistan is one .of the Judges who decided that case and it deserves to be mentioned.

We see no substance in this petition. We, therefore, dismiss it with costs.

Petition dismissed.

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