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Labour Appeal No. 5 of 1985, decided on 9th January, 1986.
‑‑Ss. 25‑A & 56‑‑Grievance petition by employee against victimization by employer‑‑Termination of Service during pendency of appeal against dismissal of petition‑‑Effect‑‑Termination of services during pendency of appeal, held, would amount to violation of S.56, Industrial Relations Ordinance, 190.
‑‑‑Ss. 25‑A & 56‑‑Maxim: "Ignorantia facti excusat"‑‑"Ignorantia juris non excusat"‑‑Meaning and scope‑‑Ignorance of fact excuses‑‑Ignorance of law does not excuse‑‑Termination 'of services during pendency of appeal, held, ,being against law could be set aside as illegal.
Broom's Legal Maxims, Pakistan Reprint, 1969 The Road Transport Corporation, Lahore v. Talib Hussain 1971 P L C 331 ref.
The Road Transport Corporation, Lahore v. Talib Hussain 1971 PLC ref.
‑‑‑S. 25‑A‑‑Grievance petition‑‑Termination of service during pendency of appeal set aside in appeal‑‑Labour Appellate Tribunal re‑instating employee, having been dismissed during pendency of his appeal against termination of services directed‑‑Authority not to start new enquiry against employee‑‑Such new enquiry against employee, held, would amount to victimization‑‑Employee could not be vexed twice over for same charge.
‑‑‑"Nemo debet‑ via vexari prouna et eadem cause"‑‑Meaning and scope‑ No one ought to be punished twice for same offence.
‑‑‑S. 25‑A‑‑Grievance petition against victimization‑‑Employee acting as peon for considerable long‑time‑‑Such employee, held, could not be entrusted job of gunman because of employee's frail Health as well as because of legal requirement that gunman should be from ex‑service men.
‑‑‑"Lex non goigt ad impossibilis"‑‑Meaning of‑‑Law, held, would not compel a man to do that which he could not possibly perform.
Khawaja Muhammad Saeed for Appellant.
Khawaja Shahad Ahmad for Respondents.
Date of hearing: 9th January, 1986.
This is an appeal against the order of the learned Labour Court, Poonch, Rawalakot, dated 15th September, 1985, whereby the application of the appellant was dismissed.
2. This appeal arises out of the following facts:‑
(a) Jalal Din son of Hashim. Din, who is working as a Peon/Messenger in the Habib Bank, moved an application under section 25(a) of the Industrial Relations Ordinance against the Zonal Chief and Manager Habib Bank Branch Bagh, to the effect that he was employed as a Qasid in 1962 A.C, and since then, he had been working very efficiently which fact was admitted even by the officers of the Bank who issued many commendation certificates in his favour. He has alleged in his application that he is the Finance Secretary of the Habib Bank Ltd. Staff Union which has been duly registered in Azad Jammu and Kashmir. Due to the Union activities, he has been victimized by asking to work for 24 hours and he has also been asked to work as a Gun‑man in the Habib Bank, Paniola Branch, although he is not qualified to act as a Gun‑man because he is not an ex‑service man. This application was moved on 26‑10‑1982 before the learned District and Sessions Judge, Poonch, as Labour Court.
(b) The learned Labour Court, Poonch, Rawalakot, vide its judgment, dated 15‑9‑1985, rejected the application.
(c) Now, dissatisfied with the order of the learned. Labour Court, District Poonch, dated 15‑9‑1985, Jalal Din has lodged an appeal before this Court.
3. Khawaja Muhammad Saeed, the learned Advocate for the appellant, has raised the following points:
(a) That the impugned judgment was passed on 15‑9‑1985 and the appeal before this Court was lodged on 1‑10‑1985. Meanwhile, the appellant's services were terminated on 5‑10‑1985 during the pendency of this appeal. Therefore, the Bank authorities have violated section 56 of the Industrial Relations Ordinance which reads:‑
"56. Conditions of service to remain unchanged while proceedings pending.‑‑ R (1) No employer shall, while any conciliation proceeding or proceedings before an Arbitrator a Labour Court or Tribunal in respect of an industrial dispute are pending, alter to ‑ the disadvantage of any workman concerned in such dispute, the conditions of service applicable to him before the commencement of the conciliation proceedings or of the proceedings before the Arbitrator, the Labour Court or Tribunal as the case may be, nor shall he
(e) Save with the permission of the conciliator, while any conciliation proceedings are pending, or (b) save with the permission of the Arbitrator, the Labour Court or Tribunal, while any proceedings before the Arbitrator, Labour Court or Tribunal are pending, discharge, dismiss or otherwise punish any workman except for misconduct not connected with such dispute.
(2) Notwithstanding any thing contained in subsection (1) an officer of a registered trade union shall not, during the pendency of any proceedings referred to in subsection (1) be discharged, dismissed or otherwise punished for misconduct, except with the previous permission of the Labour Court."
(b) That this dismissal/ termination of his services is illegal in the light of 1971 P L C 331; and
(c) That the appellant has all along been treated as a Peon/Messenger and this fact is mentioned in various letters and orders which are on the file. In this connection, the learned counsel has referred to the following letters and order issued by the Habib Bank:‑
(i) GH.J. 370‑72, dated 18th September, 1982 issued by the Habib Bank Ltd. Bagh in which Jalal Din is mentioned as a Messenger. This is Exh. D. A at page 64 of the Labour Court's file;
(ii) Letter of the Habib Bank Ltd. Head Office Karachi, dated 14th September, 1972, Exh. P. B. in which Jalal Din is mentioned as Peon. This is at page 62 of the Labour Court's file; and
(iii) Zonal Office Habib Bank's letter No. GMK: 10416‑18, dated 5th September, 1982, Exh. PH. at page 61 of the Labour Court's file, in which Jalal Din is mentioned as N.C.S. It is a transfer letter by which the appellant was transferred to Peniola Branch in the same capacity as he was in Bagh.
The argument of the learned Advocate for the appellant is that the appellant cannot be appointed as a Gun‑man due to two reasons:‑
(i) He is basically a Qasid/Messenger; and
(ii) He is not an ex‑service man.
According to the Report of the Wage Commission for Banks and Financial Institutions 1974‑75, page 122, the following persons should be preferably ex‑service men:
"Daftry, Chowkidar, Watchman and Guard.
4. On the other hand, the learned counsel for the respondents, Khawaja Shahad Ahmad, has replied:‑
(a) That the appellant was appointed as a Peon ‑cum‑Chowkidar on 12‑3‑1962 and subsequently, on 19‑5‑1976, in accordance with the Award of the Wage Commission, designation of Peon was changed into Messenger vide Head Office Circular No. GN/219, dated 19‑4‑197o as a result of which the employees who were designated as Peon‑cum‑ Chowkidar were henceforward designated as Chowkidars. The precise argument of Khawaja Shahad Ahmad is that according to Exh. D.A. the original appointment order the appellant was appointed as a Peon‑cum‑Chowkidar and after 1976 he could be asked to work as a Chowkidar or as a Gun‑man. It is not necessary that he should be an ex‑service man:
(b) That the appellant could be transferred according to the sweet will of the Bank authorities in the interests of the Bank and that the appellant has not challenged his transfer from Bagh to Paniola; and
(c) That the Bank authorities have no doubt terminated his services but the‑ Bank authorities never knew that an appeal was pending before the Labour Appellate Tribunal of Azad Jammu and Kashmir.
5. I have heard the learned counsel for the parties and have carefully perused the record and the law cited before me.
6. It Is regrettable that the appellant's services have been terminated when his appeal was subjudice before this Court. It is an admitted fact that the appeal was filed on 1‑10‑1985 while his services were terminated on 5‑10‑1985. In this respect, I am very clear that the Bank authorities have violated section 56 of the Industrial Relations Ordinance. This section has already been reproduced above. The Bank authorities should have known that case of the appellant remained sub‑judice before the Labour Court for a pretty long time and that the appellant could go in appeal before the Labour Appellate Tribunal of Azad Jammu and Kashmir against the judgment of the Labour Court, dated 15‑9‑1985. How could they assume that no appeal was preferred Ignorance of law is no excuse. There is an old maxim: Ignorantia facti excusat‑‑Ignorantis juris non excusat. (Ignorance of fact excuses ignorance of law does not excuse). This maxim is found at page 169 of Broom's Legal Maxims g (Pakistan Reprint 1969). I, therefore, think that it was not fair on the part of the Bank authorities to terminate the services of the appellant during the pendency of the appeal. I have gone through the authority The Road Transport Corporation Lahore v. Talib Hussain 1971 P L C 331, the decision which was passed by the Punjab Labour Appellate Tribunal.' In that case, during the pendency of an industrial dispute before the Labour Court, a workman was dismissed from service. The learned Appellate Tribunal held at page 334 that no enquiry was held and as such the provisions of law were not complied with. The man was dismissed without the prior permission of the Court and a reference was made to section 30 of the Industrial Dispute Ordinance 1959 whereby no employer could pass any order during the pendency of any proceedings before a Court in respect of any industrial dispute. This authority applies on all fours in the instant case and, therefore, I hold‑that the order of termination of services passed against the appellant on 5‑10‑1985 is against law and, therefore, it is set aside as illegal. The appellant shall be deemed to be an employee of the Habib Bank and he shall be entitled to all the pay alongwith other privileges etc. including the bonus etc. as if there was no order of termination of his services.
7. I want to make it clear that the Bank authorities shall not start new enquiry against the appellant on the same charge because under law a person cannot be vexed twice. The Bank authorities have chosen to proceed against the appellant when his appeal was subjudice before me and passed an order for the termination of his services without my permission. Now when I have re‑instated the appellant, the Bank authorities cannot start de novo enquiry against the appellant on the same charge because:‑
(i) it shall be a victimization of a Union leader; and
(ii) he cannot be vexed twice for the same charge.
The appellant has put in a long service of 22 years approximately and certain commendation certificates that were given to him show that his services were satisfactory. I fail to understand why the Bank authorities appear to be allergic to the formation and lawful activities of the Union. The law allows such Unions and the Bank authorities should face the music‑even if it is not of their liking some times. The Habib Bank enjoys good reputation and I hope that the high‑ups in the Habib Bank will not allow victimization of a small workman under their control.
8. As‑ regards to the maxim "Nemo debet dis vexari pro-una et eadem causal' (It is a rule of law that a man shall not twice vexed for one and the same cause), reference is made to the Broom's Legal Maxims Tenth Edition page 217. It is an age old principle of Roman law which is followed all over the world where Anglo‑Sexon Roman law prevails. Therefore, no new round of fresh enquiry is permissible under law.
9. Now, I come to the point as to whether the appellant could be asked to act as a Chowkidar or Gun‑man. No doubt the original order of appointment of the appellant, Exh. D.A., made on 12‑3‑1962 designates him as a Peon ‑cum‑Chowkidar and no doubt subsequently he was designated as Chowkidar vide the Head Office Circular No. GN/219, dated 19‑4‑1976, but two facts deserve special attention 1n this case. One fact is that the Bank authorities have all along treated the appellant as a Peon or Qasid and he served in this capacity right from 1962 uptil now. I have already referred to certain documents of the Bank which were referred to me by the learned Advocate of the appellant. The second point is that bodily the appellant does not appear to be a fit person to act as a Chowkidar or as a Gun‑man. Firstly, he is not an ex‑serviceman and according to the Report of the Wage Commission for Banks and Financial Institutions 1974‑75, page 122, a Chowkidar, watchman or a Guard should preferably be an ex‑serviceman. The appellant is not an ex‑serviceman. , Secondly, he is not a well‑built person and I think this is an additional factor why he was not entrusted the job of a watchman or a Gun‑man. It appears that nobody has seen the appellant's bodily fitness. He is fit for the job of a Peon of Messenger. but he does not appear to be a fit person as a Gun‑man or as a Chowkidar and I think to entrust him with the job' of a Gun‑man or a Chowkidar will be putting' the Bank currency etc. into jeopardy. I went to make it clear that in Azad Jammu and Kashmir and in the N.‑W.F.P., the watchmen or the Gun‑men should be ex‑servicemen especially during these times when the people have got lethal weapons and some times even the Russian guns known as 'Kalashen kovs' are also used by some undesirable persons. The Bank authorities should always look for the interest of the Bank and before assigning a person with a job, should also see the bodily fitness of the person concerned. Therefore, my opinion is that it will be in the interest of the Habib Bank itself to entrust the appellant with the work of a Peon/Messenger/ Qasid.
10. Another aspect of the matter is shat the Bank authorities are compelling the appellant to do what he cannot possibly perform. I have already mentioned that this man is a weak person who can be overpowered by an ordinary person. Now the law is that such .a person should not be compelled to do what he cannot passibly do. We have got a well‑known legal mexim: Lax non gogit ad impossibilia (The law does not compel a man to do that which he cannot possibly perform). This maxim may be read with advantage from the Broom's Legal Maxims, page 162 (Reprint in Pakistan 1969). The law excuses such a man and he cannot be asked to act as a Chowkidar or as a Gun‑man.
11. The upshot of the whole discussion is that I accept this appeal. As the appellant is the Finance Secretary of the Union, which is duly registered in Azad Jammu and Kashmir, so I order that he shall not be victimized in any manner whatsoever. The order of termination of his services is set aside and it shall be considered as if the order of termination of his services was not passed at all and he shall be entitled to get all the pay alongwith privileges etc. including bonus uptodate. The Bank authorities may post him as a Peon/Messenger in Paniola or Bagh so that the Union activities may not be hindered.
A. A. Appeal allowed.
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