' MUHAMMAD MOOSA K. LEGHARI, J.--- Through this appeal the appellant worker has assailed order, dated 13-5-2005 passed by Sindh Labour Court No,V, Karachi, whereby while allowing his grievance petition and passing order for his reinstatement instead of granting back-benefits, he was allowed compensation for 12 months' basic pay last drawn by him.
2. The relevant facts, as contained in the memo. Of appeal, are that the appellant was a permanent worker of the respondent-Establishment since 16-9-2002 and on account of his making protest against the illegal attitude of the respondent in violating the labour laws and depriving the workers of their legal benefits and not paying them salaries in time, his services were verbally terminated on 14-7-2003.
3. Appellant served a grievance notice upon the respondents which was not responded, as such appellant filed a grievance petition in the Labour Court. The respondents contested the grievance petition. Evidence was adduced by both the parties. Consequently, after hearing the parties, the Labour Court allowed the grievance petition holding that the services of the appellant were illegally terminated. However, instead of allowing back-benefits, the Labour Court granted compensation to the appellant equivalent to 12 months' basic pay last drawn by him. Hence this appeal.
4. Before going to the merits of the case, it will be appropriate to first decide the question of maintainability raised by the learned counsel for the respondent. According to him the appeal is hopelessly time-barred as the impugned order was passed on 13-5-2005 whereas the appeal was filed on 8-8-2005 although certified copy of the judgment was delivered to the appellant on 18-5- 2005.
' The stand taken by the learned counsel for the appellant in this respect is that although certified copy of the judgment was delivered on 18-5-2005 but before expiry of the stipulated period of 30 days, summer vacations commenced and the Courts were reopened on 8-8-2005 and on the very first date of the reopening of the Court, the appeal was filed. According to him, the intervening period of summer vacation would not be counted for the purpose of limitation. He relied upon the decision reported in 2003 SCM R 1772, 2000 SCM R 354, 1980 SCM R 375, 1975 SCM R 452, 2004 PTD 1957, 1997 PLC 650 and 1995 CLC 1830.
5. The ratio decidendi of the above referred decisions is that a party should not be prejudiced by the act of the Court and that when the period of limitation prescribed for any suit, appeal or application expires on the day when the Court is closed, the same may be filed on the day when the Court reopens. In the instant case the impugned judgment was delivered on 13-5-2005, whereas the certified copy thereof was provided to the appellant on 18-5-2005, while summer vacations commenced from 6th June, 2005 and the Court reopened on 8-8-2005. On the very first day of the reopening of the Courts, the appeal was filed. As laid down in the above said judgments, the intervening period of summer vacations would not be counted for the purpose of limitation. In the circumstances, the objection raised by the learned counsel for the respondents regarding limitation is not sustainable and same is repelled. The appeal is within time.
6. So far as merits of the case are concerned, the only question to be decided is; as to whether the learned Labour Court was justified in not allowing the back-benefits on the ground that in the pleadings the appellant did not claim that during the intervening period he remained unemployed.
7. According to the learned counsel for the respondents in his affidavit-in-evidence the appellant has not stated that during the intervening period viz. After termination Of ,his services till his reinstatement he remained unemployed, as such he is not entitled to back-benefits.
8. Conversely learned counsel for the appellant contended that in para.8 of the grievance petition the appellant stated in clear terms that he was "jobless since his illegal and unlawful verbal termination". There is no denial on the part of the respondents to such assertion of the appellant, as such there was no occasion for the appellant to reassert such plea in his affidavit-in- evidence. Even then, in para.2 of his affidavit-in-evidence, the appellant stated that "for the sake of brevity the contents of the grievance petition may be treated as part of affidavit-inevidence". In the circumstances, contents of the grievance petition would be deemed to be the part and parcel of the evidence adduced by the appellant. Confronted with this situation, learned counsel for the respondent could not controvert the contention raised by the appellant's counsel.
11(sic). Nothing has been placed on record to show that the appellant has remained in gainful employment during the intervening period viz. After termination of his services till his reinstatement.
In the circumstances, it was incumbent upon the learned Labour Court to have awarded back- benefits to the appellant, as ruled by the Honourable apex Court in the case reported in PLD 1990 SC 787 and followed in 1993 SCM R 105. It appears that the appellant had also moved an application under section 62 of IRO, 2002 before the Labour Court praying therein for payment of 12 months' salary in pursuance of order dated 13-5-2005. But as a consequence of a settlement with the Management upon receipt of Rs,15,000 as 12 months' salary, he withdrew the said application.
However, in view of dictum laid down by the apex Court, he cannot be deprived of back-benefits.
12. As an upshot of above discussion the appeal is allowed. The impugned order is modified to the extent that instead of 12 months' basic pay, the appellant shall be entitled to back-benefits. The back-benefits shall be paid to the appellant within one month after deducting the amount of Rs,15,000 already received by him as 12 months' salary.