' The respondent No, 1 was appointed on daily wages of or about 11th November, 1979. Thereafter on 11th May, 1971 the petitioner invited applications for the post of fitters, diesel mechanics and electrician. The respondent No, 1 applied for one of the advertised posts, but the Executive Engineer, of the petitioner No, 1 appointed respondent No, 1 to the job of diesel-cum-electric fitter on 8th June, 1971. It has been stated by the petitioners that one Abdul Rashid, who was performing the duties of diesel-cum-electric fitter for about two years prior to the appointment of respondent No, 1, protested against the injustice done to him. The Collective Bargaining Agent of the petitioner No, 1 took up the case of Abdul Rashid in its charter of demands as demand No, 6 (H). By a memorandum of settlement, dated 16th September, 1972 it was agreed between the petitioner No, 1 and C. B. A. That a fresh test may be conducted of Abdul Rashid and the employee working at present at the pump house to determine their suitability by a committee. In accordance with this settlement a test was held and Rashid was found better and finally on 31st July, 1973 the service of respondent No, 1 was terminated. The respondent No, 1 filed application under section 25-A of Industrial Relations Ordinance, 1969 before the Junior Labour Court alleging that his service was terminated without any notice and no opportunity to defend the case was given to him. The Junior Labour Court by its order, dated 14th November, 1973 reinstated the respondent No,
1. The petitioner No, 1 preferred an appeal which was dismissed on a technical objection that the memo. Of appeal was not signed by the Chairman of K. P. T. The petitioner No, 1 challenged this order in C. P. No, 482/74 which was set aside and the appeal was remanded for decision on merits. By the impugned order, dated 5th August, 1979 the Labour Court No, 11 dismissed the appeal.
' Mr. Sarwana the learned counsel for the petitioners has contended that as Standing Orders Ordinance is not applicable to K. P. T. Application under section 25-A, I. R.
0. Filed by the respondent No, 1, a dismissed worker, was not maintainable. The contention seems to be that at the time when the application was filed by the respondent No, 1 his service had been terminated, and therefore, not being a worker, he could not have invoked section 25-A. Mr. Mirza has contended that the petitioners did not raise this objection either before the Junior Labour Court or the Appellate Court, nor such specific ground has been taken in the petition itself. This objection of the learned counsel for the respondent No, 1 finds support from the record. In the petition it has been stated that in view of the proviso to section 1 of the West Pakistan Ordinance VI of 1968 the Junior Labour Court had no jurisdiction. It has been further stated that as appeal provided under section 23 of the K. P. T. Act had not been filed, the application was not maintainable. A general objection was taken that the order of the Junior Labour Court as well as the Appellate Court No, 2 are contrary to law, and without jurisdiction.
Mr. Sarwana contended that as the contention raised by him is a purely legal plea, it can be raised at any stage of proceedings. It is not open for a petitioner to raise any legal plea which though available to him was not raised at any stage. In fact in this petition also this objection has not been taken, and it is at the time of argument that the learned counsel has raised this plea. Generally, a petitioner should be permitted to raise only those pleas which have been specifically pleaded by him. The plea that the order is without lawful authority, or without jurisdiction does not specifically state the grounds on the basis of which it has been raised. Such vague plea raised by the petitioners cannot be treated as a specific objection, as contended during arguments, which though available to the petitioners was not raised even in this petition. Practice of raising such plea at the time of argument cannot be encouraged in such proceedings. If the petitioners had any intention to raise this plea, the proper course was to have intimated the respondents of such intention to press it at the time of hearing. Reference can be made to Muhammad Ali v. Deputy Settlement Commissioner and another . In any event it has to be seen whether in the facts of the case this plea is tenable. The basis of this plea is that the respondent No, 1 is a dismissed workman, and therefore, he cannot invoke section 25-A. The main case of the petitioners is that the Collective Bargaining Agent had made representation against the appointment of respondent No, 1 by presenting a charter of demands which was settled by a settlement between the petitioners and C.
B. A. And in pursuance thereof, the service of the respondent No, 1 was terminated. Therefore, according to the petitioner's own case the appointment of the respondent No, 1 has been subject- matter of an industrial dispute which culminated in the settlement between the petitioner No, 1 and the C. B. A. In this background, I have to examine the objection of the learned counsel for the petitioners. The word 'worker' and 'workman' has been defined by section 2, subsection (xxviii) as 'any person not falling within the definition of employer, who is employed in an establishment or industry, for hire or reward' and 'for the purposes of any proceeding under this Ordinance, in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise, removed in connection with or as a consequence of that dispute'.
The definition makes it plain that for the purposes of any proceeding under the I. R.
0. Which relates to an industrial dispute, a workman who has been dismissed, retrenched, removed, laid off as a consequence of such industrial dispute shall be deemed to be a workman. Therefore, on petitioner's 'own showing as the respondent No, 1 has been dismissed as a consequence of an industrial dispute which culminated in a settlement the respondent No, 1 continues to be a worker as defined by I. R. a, and therefore, application under section 25-A was competent.
' The next contention of the learned counsel for the petitioner is that the settlement between the C.
B. A. And the petitioner No, 1 is binding on the respondent No, 1 and as the settlement provided for the termination of the service of respondent No, 1, he is not competent to challenge the impugned1 action. The contention that the service of the respondent was terminated as a consequence of the settlement does not seem to be correct. After the appointment of the respondent No, 1 the C. B. A.
Had raised a demand with regard to the claim of Abdul Rashid and the settlement, copy of which has been produced by the petitioners during arguments was in the following terms :- "Demand No, 6 (h) Mr. Abdul Rashid Electric Fitter of C. M. E. F's. Department should be promoted to the post of Diesel-cum-Electric Fitter with retrospective effect.
' It was agreed that a fresh test may be conducted of Mr. Rashid and the employee working at present at the Pump House to determine their suitability by a Committee comprising of Deputy C.
M. F., L. W. And I. R.
0. And a representative of the Collective Bargaining Agent."
' No doubt in this demand Abdul Rashid and the respondent No, I were both involved and it was agreed that a fresh test of both the persons may be taken to determine their suitability by a committee, the settlement' did not provide that if the respondent No, 1 was not found suitable by the Committee then his service should be terminated. This is something which the petitioners have done of their own, taking refuge under the settlement. The settlement is silent about what should be done with the service of the respondent No, 1 if he is found unsuitable, therefore, the petitioners cannot rely on the terms of settlement for terminating the service of the respondent No, 1.
' The petitioner's learned counsel contended that the settlement was binding on the respondent No, 1, and as he has acted upon it, by appearing before the committee for a test, he cannot challenge the order of termination. The contention does not seem to be well-founded, because as observed earlier, the settlement does not provide for termination of service. It was not settled that if the respondent No, 1 did not come upto the standard or equal to Abdul Rashid, then his service should be terminated.
' The learned counsel then contended that the observation of the Courts below that Standing Order 79 (K. P: T. Digest of Pay Allowance and Service Rules) has not been followed are incorrect.
According to the learned counsel Order 79 relates to misconduct and was not applicable to the present case as there was no question of misconduct and no action was taken on that basis.
According to the petitioners the respondent No, I was appointed under mistake, and therefore, his service was terminated. The learned counsel has not been able to show any rule of the K. P. T. That in such circumstances service could have been terminated without any notice. The respondent No, 1 remained.In service for more than about two years and if it was a mistake, the same should have been rectified immediately and without any loss of time and should not have been allowed to linger on for such a long period.
Mr. S. A. Sarwana contended that when the respondent No, 1 was appointed to the post of diesel- cum-electric fitter he was not allowed to continue with the job in that department, as the Engineer was not satisfied with his work and competency. He was, therefore, shifted to another department, where he continued to work for two years. If termination was the result of such inefficiency of the respondent No, I on the post of diesel-cum-electric fitter then surely according to the rule he was entitled to a notice before any adverse order should have been passed against him. In any event, if the termination was merely because the petitioners realised that it was a mistake, even then, in the absence of any Rule governing such situation the petitioners should have served a show-cause notice before terminating the service of the respondent No,
1. In these circumstances, the orders passed by the Courts below are just and proper. Even, if I would have come to the conclusion that the respondent No, l's application was not maintainable due to some technical defects, as the order passed by the petitioners terminating the service of the respondent No, 1 is manifestly illegal and unlawful, I would have not exercised my discretion in aid of injustice. The Petition is, therefore, dismissed. PLD 1983 Lah. 861