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Appeal No. LHR‑59 of 1984, decided on 13th August, 1984.

‑‑‑S.25‑A‑‑Wrongful discharge from service‑‑Receipt of dues in full and final settlement‑‑Does not stop workman (petitioner) from challenging illegal order passed without charge‑sheet and enquiry‑‑Only a conscious undertaking binds a person‑‑Amount paid without informing workman as to nature thereof‑‑Not binding so as to be treated as full and final settlement of dues.

‑‑‑Domestic enquiry‑‑Issuance of charge‑sheet and considering reply‑ Essential‑‑Enquiry without informing accused regarding charge‑‑Not a proper enquiry.

Muhammad Khalid Mahmood for Appellant.

K.M. Pasha for Respondents.

Date of hearing: 6th August, 1984.

The above captioned appeal arises from the decision, dated 23‑10‑1984 recorded by the learned Presiding Officer, Punjab Labour Court No.3, Lahore at Ferozewala, dismissing the grievance petition of the appellant for his re‑instatement in service.

2. The appellant was a storekeeper. He was discharged from service on the ground that due to his negligence fire had broken up to the whether unit. Neither he was charge‑sheeted, nor any enquiry was held against him. After three days of his discharge he received Rs.1,080.20 in full and final settlement of his claim vide Exh. R.1. No doubt, the appellant mentioned on the back of Exh. R.1 that he had received the amount towards full and final settlement of his claim but it did not stop him from challenging the illegal order of discharge from service passed without charge‑sheeting him and holding any enquiry against him. Receipt of those dues estop an employee from challenging an order, which can be paid only after termination of services. At the time of receiving the amount of Rs.1,080.20 the appellant was not made aware on what account the amount was being paid to him. No details and break‑up is given in Exh. R.1. No doubt, according to the detail attached to Exh. R.1 certain amounts were such which could be paid after termination but since no details were given in EXh. R.I, the appellant was not aware of them. The break‑up does not bear the signatures of the appellant and thus has no binding force. Learned counsel for the respondent has argued that since the appellant did not urge in his petition or memo. of appeal that he did not know if certain such amounts were also being paid to him that could be paid on termi nation of services, so it cannot be said that he had no knowledge than by receiving the amount he would stand estopped from challenging the order of termination. The appellant being a layman could not have realised that by the words 'full and final settlement' he would be estopped from challenging the order bf discharge from service. Either the details of the amounts should have been given in Exh. R.1 or a writing should have been taken from him on Exh. R.1 that he would not after receiving the amount challenge the order of discharge. Needless to say that a conscious undertaking binds a person.

3. The learned lower Court has wrongly held that more than 49 persons were not working in the respondent‑establishment during 12 months preceding the order. R.W.1 admitted that in January, 1983 fifty workers were working. The date of order of discharge is 23‑1‑1983. Since during 1‑1‑1983 to 22‑1‑1983 fifty persons were working, Standing Orders Ordinance, 1968 applies to the respondent and the appellant can take benefit of Standing Order 15(4).

4. The learned lower Court has also held wrongly that enquiry was held against the appellant. Firstly merely holding of enquiry is not sufficient. Issuing of charge‑sheet and considering the reply is must and without charge‑sheeting and considering the reply thereto, no B enquiry can be held. No charge‑sheet is on the record, nor there is any evidence that any charge‑sheet was served upon the appellant. Secondly, no enquiry was actually held as no record of enquiry was produced before the learned lower Court. The order of discharge from service and the impugned decision of the learned lower Court, therefore, are not sustainable. However, the appellant is not, in the circumstances of the case, entitled to back benefits. Due to intricacy of legal point that giving of break‑up and details of the amounts in Exh. R.1 was necessary, the respondent was justified in resisting the grievance notice and the grievance petition.

5. As a result the appeal is accepted and setting aside the order of discharge from service and the impugned decision of the learned lower Court, the appellant is directed to be re‑instated in service without back benefits. The appellant is not liable to refund any amount because from the total sum of Rs. 1,080.20, an amount of Rs.900 was deducted by the respondent on account of loan taken by the appellant and in this way the appellant was actually paid Rs.120.20 only. Loan will be recovered as before by installments and gratuity and amount of Rs.224.40 as encashment will be adjusted from Rs.900 deducted on account of loan. In this manner the appellant will get gratuity and leave encashment according to rules when his service will come to an end in a legal manner in due course.

A. E.

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