' The decision dated 30th October. 1984 recorded by the learned Presiding Officer, Punjab Labour Court No, 2, Lahore has been challenged in the two appeals captioned above, whereby Wali Muhammad (hereinafter to be called as the respondent) was directed to be reinstated in service without back benefits. The Lahore Development Authority (hereinafter to be described as the appellant) has challenged the direction of reinstatement, whereas Wali Muhammad, respondent has in his appeal claimed back benefits. Since both the appeals arise from the same decision, they are being disposed of together through this single judgment.
2. The respondent was a Senior Draftsman appointed on 31st August, 1978. He did not attend his duties from 10th May, 1983 to 4th July, 1983 and applied for leave on the plea of illness. He reported for duty on 5th July, 1983 but was told that he had been terminated from service vide order Exh. P. 1, dated 3rd July, 1983 with effect from 10th May, 1983. After the service of grievance notice, the respondent brought grievance petition under section 25-A. Admittedly, no charge-sheet was issued and no inquiry was held for the absence of the respondent. The case of the respondent is that he had been applying for leave and sent medical certificate and one certificate was presented by him in person. The cause of the appellant to the contrary is that no leave application or medical certificate was received. The respondent admited the receipt of only one letter of the appellant Exh. R. 4, reply to which is Exh. R.
5. He was asked to get himself medically examined by L. D. A. Doctor and send certificate of the said Doctor. In reply Exh. R. 5 it is mentioned that the certificate of the L. D. A's Doctor was being attached but the appellant's contention is that no certificate was received.
3. Since the services of the respondent were terminated with effect from the date the respondent did not perform his duty, it is evident that on account of absence action was taken. Absence from duty for a period exceeding ten days is misconduct according to Standing Order 15(3)(e), so the following of the procedure under Standing Order 15(4) read with Standing Order 12(5) was necessary. If it had been done, the respondent may have produced the copies of the leave applications, if any, medical certificates, if any, and the postal receipts or A. D. Receipts, or other receipts if any, given by the appellant. So he was condemned unheard. If the order of termination is taken to have not been passed on account of absence, then there is no documentary evidence that the work for which the respondent was employed, had finished. The respondent was never informed that the project, if any, had come to an end his services were not required, so much so that even in the order of termination this is not mentioned. No such position was taken in the written statement that the respondent had been appointed in connection with any project for either a fixed period or till the completion of the project. For the first time this plea was taken in the evidence of R. W. 1 after the respondent had closed his case. In the appointment order Exh. R. 2 also no such thing is mentioned. Rather Exh. R. 2 shows that the respondent was the employee of L. D. A.
No, project is mentioned. Condition No, 1 is that if the post is abolished, his services can be terminated without any notice. As mentioned above, it was never contended before R. W. 1 was examined that the post of the respondent had been abolished or that the respondent was appointed in connection with some project and the project had been completed. Condition No, 2 is that in case of default, neglect or misconduct, without notice services can be terminated. This being in violation of Standing Order 15 of Standing Orders Ordinance, 1968, is a void condition and thus had no binding force. The order of termination is hit by Standing Order 12(3) also, inasmuch as it does act contain explicit reasons for termination.
4. Much stress has been laid by the learned counsel for the appellant on the point that the Industrial Relations Ordinance, 1969 and Standing Orders Ordinance, 1968 are not applicable. The ground on which this plea has been taken is that L. D. A. Has its own statutory Service Regulations adopting Punjab Civil Servants Efficiency and Discipline Rules. The Lahore Development Authority (Appointment and Conditions of Service) Regulations, 1978, no doubt, appear to be statutory rules as they were notified but so far as Industrial Relations Ordinance, 1969 is concerned, this fact cannot be a ground for its non-application. Industrial Relations Ordinance, 1969 applies to the establishments covered by the definition of 'industry' given in section 2(xiv). The Industrial Relations Ordinance, 1969 is not applicable to persons who fall within any of the exceptions given in section 1(3)(a) to (f). In the written statement, it is not said on which ground Industrial Relations Ordinance, 1969 is not applicable. The respondent, not being aware of the specified ground, had no opportunity to meet it. It has been said in arguments that L. D. A. Is not an industry. This is a mixed question of facts and law. Unless it had been taken in the written statement, the parties could not adduce evidence about the functions and the working of L. D. A. Such a point cannot be raised for the first time in argument at the appellate stage. No one can be allowed to be caught unaware.
5. So far as the question of non-applicability of Standing Orders Ordinance, 1968 is concerned, in proviso II to section 1(4)(c) two conditions are given. One is that the establishment should be running either by the Government or under the Authority of the Government. The second is that it should have statutory rules of service. So, only one condition is present i,e, that the L. D. A. Has statutory Regulations of service. But the other condition is not fulfilled. L. D. A. Is not running under the Authority of any Government. It is running under the authority of the L. D. A. Act. Learned counsel saye that since the Act has been passed by the Government so it means that under the authority of the Government, L. D. A. Is running. On the face of it the argument is hollow. Firstly, the Acts are passed by the Legislature and not by any Government and secondly not the body that promulgates an Act gives authority but the Act gives authority. The learned counsel has made reference to certain sections of the L. D. A. Act and has argued that control is of the Government over L. D. A. Under section 4 the Government has to establish the L. D. A. But it does not mean that the L. D. A. Works under the authority of the Government. This is true that the members and Chairman all are Government employees but this too would not show that the L. D. A. Gets authority from the Government. Section 5 deals with the qualification of the members and section 6 deals with the functions of the authority. Likewise section 8 deals with the appointment of Director- General and committees. The Government has to appoint the Director-General. Section 17 says that L. D. A. Will be guided by the directions of the Government. If the L. D. A. Had to work under the authority of the Government, there would have been no need to give controlling power to the Government. Since the L. D. A. Is autonomous body, therefore, provision was made to create control of the Government to some extent. On account of control, the L. D. A. Is semi-autonomous body.
Necessity of check and control arises only when the body to be controlled in its actions and working is independent and not working by or under the authority of any sovereign body. The learned counsel has cited PLD 1976 Kar. 514 but it goes against the appellant. It has been held that Karachi Development Authority Order of 1957 and K. D. A. Employees (Efficiency and Discipline)
Regulations of 1970 are not substitution of the Industrial Relations Ordinance, 1969 and Junior Labour Courts have jurisdiction. Although it has been held that Standing Orders Ordinance, 1968 is not applicable but with great respect the point whether the K. D. A. Is functioning under the authority of the Government has not been elaborately threshed out. So I hold that Standing Orders Ordinance, 1968 applies to the L. D. A. The learned lower Court rightly directed the reinstatement of the respondent in service. However, the respondent is not entitled to back benefits as he in his statement did not say, nor there is any other evidence that he remained jobless during the period of termination from service.
6. As a result, both the appeals have no merits and are hereby dismissed.