ABDUL GHIAS NOUSHERWANI (MEMBER).--- This appeal is directed against the judgment dated 9- 7-2013 passed by learned District and Sessions Judge first Labour Court Balochistan Quetta wherein the grievance application of respondent was allowed with back-benefits.
2. During the pendency of instant appeal the learned counsel for respondent submitted an application for making direction to appellant to deposit the back benefits which was strongly opposed in rejoinder. The learned counsel for respondent referred only one order sheet dated 30- 12-2008 passed by Vacation Judge of honorable High Court of Balochistan in Labour Appeal No,51 of 2008 wherein order passed on C.M.A. No,54 of 2008 as under:--- "Notice, subject to deposit of back-benefits with Registrar of this Court who should further fix it in the saving accounts. Operation of impugned order is suspended. Matter is adjourned after vocations."
' The learned counsel for respondent in above said application referred 1995 PLC 325 and 2006 SCM R 590 = 2005 PLC 364 but neither the above said authorities were produced nor the learned counsel discuss the same. From perusal of all Labour laws from beginning till today no such provision is available for deposit of back-benefits for the maintainability of appeal except in the cases of Workmen's Compensation Act, 1923. Therefore the above said order sheet is not sufficient to allow the above said application. Consequently the same is dismissed.
3. Brief facts of this appeal as stated in grievance application are that the appellant was initially employed on the basis of contract as inventory clerk in Basic pay Scale-8 (Rs,1140-65-2115) vide office memo. No,237-Estab/Gen-1570 dated 29th June, 1994 and subsequently formal appointment orders for extension of the Contract were issued on 22-1-1994 w,e,f, 18th August, 1994. The appellant was re-designated as Key Punch Operator vide Office Order No,EDP/(PF)/ICPLUS/16 dated 26-12- 1995. On 16-3-1996 the appellant was again re-designated as Data Entry Operator vide Office Order No,242-ESTT. The appellant has been performing his duties as USC Quetta with full devotion, zeal and enthusiasm. He has successfully completed different training sessions of Computer Staff and performed his duties to the entire satisfaction of his superiors in the interest of Corporation.
Unfortunately the contract of appellant was surprisingly terminated contrary to the facts and law.
4. The respondent/applicant preferred a departmental appeal which was dismissed. Thereafter he filed appeal before Learned Federal Service Tribunal where his appeal was pending for a considerable time till the decision of honorable Supreme Court of Pakistan dated 27-6-2006 where the appeal was abated and respondent along with other appellant's were directed to approach the Labour Court within the period of 90 days. Thereafter he filed application under appeal before Learned Labour Court on 8-4-2006. Surprisingly on 21-5-2008 the Learned Labour Court returned the application and disposed of the matter in the following terms:-- "under section 2-A of Federal Service Tribunal No (LXX) provides that all employees of Government owned corporations, companies and other organizations have been declared as civil servants for the purpose of Federal Service Tribunal Act, 1973, as such there service matters will be dealt with by the Federal Service Tribunal and this Court has no jurisdiction to try service matter of utility stores under IRO. The application returned for its submission to the competent Court and the counsel for applicant has no objection on the same."
5. Against above mentioned order a review application was also dismissed for want of jurisdiction by means of order dated 20-9-20008.
6. Labour Appeal No,44 of 2008 brought before this Tribunal which was decided on 26-3-2011 wherein above-mentioned order including that of 21-5-2008 was set aside and matter was remanded for decision on merit.
7. The Learned Labour Court recorded evidence in the light of framed issues but it appeared that the application of respondent/appellant was dismissed after discussion of two issues i,e, first maintainability of the application as per the provisions of IRO, 2002 that the applicant/appellant does not fall within the definition of worker which was decided in favour of respondent/appellant.
Second issue about non-service of grievance notice was decided against the appellant/respondent whereof dismissed the application with the following observations:--- "As the material and important issue i,e, No,2 has been resolved against the applicant therefore there is no need to discuss the other issues or merits and demerits of the case hence the application filed by applicant is hereby dismissed."
8. The respondent/applicant challenged the above said order before this Tribunal which was partly allowed on 4-5-2012 with the following observations:--- "Resultantly the appeal is partly allowed and the Order/ Judgment dated 11-8-2011 passed by Learned District and Session Judge 1st Labour Court Balochistan is set aside and the case is remanded to the said Learned Labour Court for decision on merit due to order dated 13-6-2007 and for the reason that the honorable Superior Courts have always encouraged decision of cases on merits instead of non-suiting litigants on technical reasons including the ground of limitation."
9. On remand the Learned Labour Court by means of judgment dated 9-7-2013 allowed the application with back-benefits and the instant appeal is the outcome of above said judgment.
10. The learned counsel for appellant contended that no grievance notice has been served upon appellant which is the mandatory provision of Labour laws. Secondly contended that the grievance petition was time barred for the reason that he was terminated in the year 2004 while he approached Learned Labour Court in the year 2006. In support of his contention he referred a reported judgment 1996 PLC 556, 2002 SCM R 416, 2002 SCM R 1004. The learned counsel for respondent strongly opposed the contention of learned counsel for appellant stating that the respondent/applicant properly adopted the procedure and law with regard to Service Tribunal and after dismissal of his departmental appeal approached Federal Service Tribunal and in view of above said judgment of Honorable Supreme Court of Pakistan appeal was abated and filed the same within time in Labour Court.
11. Admittedly the respondent/applicant after dismissal of his departmental appeal filed appeal before Learned Federal Service Tribunal where the same was abated with the direction to approach the Labour Court within the period of 90 days. The contentions of learned counsel for appellants are not sustainable for the reasons in the application of appellant/respondent two legal objections raised before learned Labour Court being the legal objections C & E of written statement. These legal objections were with regard to non-service of grievance notice secondly the grievance application was barred by time. The above to legal objections disposed of by means of order dated 13-6-2007 in the following manner by the Learned Labour Court:--- "thus in the nut-shall it is concluded that as the under reference case have been abated from the Federal Service Tribunal and have filed in this Court afresh under the provisions of IRO, 2002, no preliminary proceedings are required to be followed by the applicants i,e, serving of grievance notice to the respondent before approaching this Court. Further this matter/case is also not time barred solely on this ground and deemed to be within time."
12. Admittedly the above order was not challenged in any forum and consequently in earlier round the case was remanded by this Tribunal by means of order dated 4-5-2012 which has been reproduced in Para Supra. Meaning thereby that the above said order gain its finality particularly being legal issues which remained intact.
13. The learned counsel for appellant in addition with respect of non-service of grievance notice contended that departmental appeal cannot be considered as a grievance notice. Admittedly several appeals before Learned Service Tribunal were abated, one of those cases was decided by a Division Bench in C.P. No,54 of 2011 of honourable High Court of Balochistan where the same legal point/objection were discussed in following manner:-- "8. It is the case of respondent No,1 that after getting acquittal from the criminal charges by this Court the respondent No,1 preferred departmental appeal and thereafter approached the Federal Service Tribunal, where the matter remained pending till 27th July, 2006 and in view of the judgment dated 27th June 2006, passed by the Apex Court in Civil Appeals Nos.792 of 2005 to 816 of 2005 etc. with regard to section 2(A) of the Service Tribunals Act, 1973 the appeal of respondent No,1 was held abated and the respondent No,1 was mandated by the apex Court to resort to the competent forum for rederssal of his grievance within 90 days and the bar of Limitation provided by respective laws was held not to operate till the expiry of the stipulated period. Hence under these circumstances, the question of limitation for non-suiting the respondent No,1 does not arise at all. Even otherwise the superior Courts have always encouraged decision of cases on merits instead of non-suiting litigants on technical reasons including the ground of limitation. Reference in this regard is made to the case of Muhammad Hanif Bukhari v. President, National Bank of Pakistan 2004 PLC (C.S).
1014.
' The respondent No, 1 under the above circumstances, rightly approached the respondent No,2 under section 46 of the Industrial Relations Ordinance, 2002 for redressal of his grievance and the department appeal of the respondent No,1 can be treated as grievance notice in view of the principle laid down in the case of Nadeem Ahmed Qureshi v. Habib Bank Limited 2009 PLC 160."
14. The above said authorities referred by learned counsel tor appellant with regard to limitation are not useful for the reasons that the facts and circumstances of referred authorities are different from that of in hand.
15. The learned counsel for appellant referred 2007 PLC 398 with regard to grievance notice/departmental appeal but the same is also not useful for the reasons that in referred authority the departmental appeal submitted before higher authority who was not the appointing authority but in case in hand the departmental appeal submitted before appointing authority.
16. The learned counsel for appellant contended that the respondent/ applicant approached a wrong forum but did not explain the delay of each and every day. This argument is also not sustainable for the reason that before the judgment of honorable Supreme Court of Pakistan with regard to Service Tribunal the forum was Federal Service Tribunal from where legally the appeal was abated and submitted before Labour Court within time.
17. Lastly the learned counsel for appellant contended that neither the respondent/applicant in his application claimed back-benefits nor any evidence came on record that during termination he was job less. From examination of application and evidence the contention of learned counsel for appellant seems to be correct and in this behalf nothing brought by learned counsel for respondent in rebuttal.
18. The learned Labour Court discussed in detail each and every issue in the light of evidence produced by the parties and left no room for interference of this Tribunal. Therefore, the order impugned is upheld with the modification that respondent/applicant be reinstated from the date of passing of impugned judgment of Learned Labour Court with no back benefits as nothing brought on record that during the period of termination he was job less. With above modification the impugned judgment is upheld. Consequently appeal is dismissed with no order as to cost.
19. The copy of order along with original record of trial court be sent to trial court. Case after completion be consigned to record.