The respondent, who was employed as bus conductor in the appel--lant organization, by order, dated 30th July, 1973, was discharged on the charge of misconduct, by order, dated 23rd November, 1978. He challenged the said order before the learned Labour Court through a grievance petition. This learned Labour Court accepted his grievance petition and directed that he be re-instated in service. On appeal by the appellant corporation, this Tribunal set aside the order of the learned Labour Court and remanded the case to it for fresh finding. During the course of the proceedings before the learned Labour Court, after remand of the case to it, the learned counsel for the appellant corpora- -tion gave a statement in writing to the learned Labour Court to the effect that the respondent was being re-instated and he was being given back benefits as there was nothing against him.
Accordingly the learned Labour Court disposed of the case on 3rd March, 1981, on the above statement of the learned counsel for the appellant corporation. It appears that the respondent had also submitted an application to the learned Labour Court under section 51, I. R. O.., for recovery of the back benefits. On the basis of that application, some amount of back benefits has been realized by the respondent, though there appears to be some dispute as to the exact amount realized by ' him. As the appellant corporation, despite the above statement of their learned counsel, took the plea that the respondent had been discharged from service, on account of retrenchment, with effect from 31st January, 1980, the respondent preferred a fresh grievance petition before the learned Labour Court . The -learned Labour Court , by its decision, given on 24th April, 1982, has allowed his grievance petition and directed the appellant corpora--tion to re-instate the respondent in service with full back benefits, on the basis of the statement made by the learned counsel for the appellant corporation on 31st March, 1981.
Aggrieved by this decision, the appel--lant corporation has come up in appeal to this Tribunal.
2. It is not disputed by Mr. Raes Muhammad Mushtaq, the learned counsel for the appellant corporation that he did make the statement on 3rd March, 1981, to the effect that as there was nothing against the respon--dent, he was being re-instated in service with immediate effect. His contention, however, is that this statement was based on the information communicated to him that action against the respondent for acts of misconduct alleged against him was not proposed to be taken, but the said statement did not affect the validity of the purely retrenchment order, dated 31st January, 1980, by which the services of several employees of the appellant corporation, including the respondent, had been termi--nated. It is quite possible that the learned counsel for the appellant corporation was unaware of the fact that the service of the respondent had been terminated on account of the general retrenchment order, dated 31st January, 1980, but having made a categorical statement before the learned Labour Court on 3rd March, 1981; to the effect that the respondent was being re-instated in service with immediate effect, and in consequence of the said statement the respondent having withdrawn his appeal, the appellant corporation would not be entitled now to take the plea that they have rightly terminated the services of the respondent by the earlier general retrenchment order, dated 31st January, 1980, The learned counsel for the appellant corporation, however, argued in the alternative that since even persons senior to the respondent had been discharged from service through the general retrenchment order, dated 31st January, 1981, the respondent, would at least not be entitled. To wages or to re- instatement in service after 3rd March, 1981
3. Mr. M. Lshaque Abbasi; the learned counsel for the respondent on the other hand sought to argue that by reason of the unequivocal statement made by the learned counsel for the appellant corporation, the respondent was entitled to be reinstated in service and to continue in service even after 31st March. 1981, though employees senior to him may be discharged on account of retrenchment. In the alternative, he argued that as there was nothing to indicate that persons senior to him had been rentreached, therefore, the respondent was on that account also entitled to continue in service. It may, however, be pointed out that it was the case of the respondent himself before the learned Labour Court that he was senior to the daily appointed bus conductors who were still continuing in service. Further more, in his grievance petition the respondent had alleged.
That the provisions of Standing Order 13 had been violated by the appellant corporation. As it was the case of the respondent himself that he was entitled to continue in service on the basis of his seniority, the learned Labour Court should have examined this aspect of the case and given ,a finding whether any person senior to the respondent was being continued in service on or after 3rd March, 1981, when the statement made by the learned counsel for the appellant corporation, on the basis of which the respondent was being re-instated in service, was submitted to the learned Labour Court. Unfortunately, no such evidence was led by either side and the case has been decided entirely on the basis of the aforesaid statement.
It seems to me rather unfair that an employee, though Junior in service, should be continued in employment, whereas the services of the seniors had been retrenched, merely because of a statement made on some misunderstanding, by the learned counsel for the appellant corporation.
In any case, since the case of the respondent was that person junior to him were being retained in service when his services were termi--nated and that the provisions of Standing Order 13 have been violated, evidence in regard to these issues should have been led before the learned Labour Court
5. In the circumstances, I would remand the case to the learned Labour Court for the purposes of giving an opportunity to both parties to lead evidence on the issue whether any person junior to the respondent were retained in service on or after 3rd March, 1981. It may be reitera--ted that so far as the back wages of the respondent are*concerned upto 3rd March, 1981, there is no dispute and that admittedly the respondent is entitled to the said amount.