' The titled appeals arise from the decision, dated 23rd May, 1984 passed by the learned Presiding Officer, Punjab Labour Court No, 5, Faisalabad directing the re-instatement of Jahangir Malik (hereinafter to be called the respondent) in service without back benefits. The respondent in his appeal has claimed back benefits, whereas in the cross-appeal Habib Bank Limited (hereinafter to be described as the appellant) has challenged the direction of re-instatement of respondent in service. Both the appeals are being disposed of together through this single judgment.
2. The respondent is an Assistant. He was charge-sheeted for giving his date of birth as 1st October, 1951 in his service application instead of 1st October, 1949. His services were terminated presumably under para. 234 of the 1st Wage Commission Award without holding any enquiry. The respondent appealed against the order of termination but it was rejected and the respondent informed vide letter Exh. P. 16 dated 10th October, 1982. The respondent brought second appeal to the President of the Bank on 26th December, 1982 which was rejected vide Exh. P. 18 on 2nd February, 1983.
3. It has been argued by the learned counsel for the appellant that the grievance notice from the date of information of the rejection of first appeal was time-barred and no second appeal lay, therefore, the learned lower Court wrongly treated the grievance notice as within time from the date of the decision of the second appeal. The first appeal was made to an incompetent authority, therefore, the respondent brought second appeal to the competent authority i,e, the President. The second appeal, no doubt, was time-barred but since it was entertained and decided on merits and was not rejected as time-barred, the cause of grievance arose A to the respondent from the rejection of the second appeal and the grievance notice and the grievance petition have rightly been adjudged by the learned lower Court as within time.
4. It has been argued that since action was taken under para. 234 and not under para. 253, holding of enquiry was not necessary. This is true but the provisions of para. 234 were violated inasmuch as neither one month's notice of termination was given, nor one month's pay in lieu of notice was offered before passing the order of termination. Even in the order of termination, it is not said that one month's pay in lieu of notice has been credited to the account of the respondent. There is no evidence that actually one month's pay was credited before or immediately after passing the termination order. The argument is without force that at the most the respondent could be allowed by the learned lower Court one month's pay. Since the necessary condition of one month's notice or one month's pay in lieu of notice was not complied with, the very order of termination became illegal and is not maintainable.
5. So far as giving of wrong date of birth in the application for service is concerned, the date was not wrong. The respondent, no doubt, had admitted afterwards that correct date of birth was 1st October, 1949 but this he did before he could lay his hands upon the birth entry. In the copy of the birth entry the date given is as 1st October, 1951. So no fraud or offence of misrepresentation was committed for which after so many years the respondent could be punished with termination of service.
6. It has been argued that Wage Commission Award is not the Award as defined in section 2 of the Industrial Relations Ordinance, 1969 so on its basis no petition under section 25-A was maintainable. c Section 38-D is a complete answer to it. It says that all the provisions of Industrial Relations Ordinance, 1969 would apply to the Wage Commission Award. So section 25-A applies and the petition was competent.
7. The other point raised is that a terminated person ceases to be a workman, so the respondent could not apply to the Labour Court under section 25-A. The words 'is employed' occurring in section 2 (xxviii) of Industrial Relations Ordinance, 1969 do not mean that only that person is a workman who is in service. Not only in section 2 (xxviii) but in other enactments also where worker or employee or servant has been defined, present tense has been used. If the intention of the Legislature had been that an out of service man cannot seek remedy against the order of his termination, then there would have been no need of promulgating special laws such as Industrial Relations Ordinance, 1969, Standing Orders Ordinance, 1968, and Civil Servants Act, nor there was any necessity of making special tribunals because the remedy of damages for wrongful termination was already available under the ordinary civil law. I, therefore, overrule the objection.
So far as the appeal of the respondent for back benefits is concerned, since the respondent did not say before the learned lower Court that he did not remain unemployed after termination, he was rightly disallowed back benefits.
8. As a result, both the appeals are dismissed having no merits.