1. This petition has arisen in the following circumstances: The petitioner who was employed with the second respondent as workman was dismissed from service on 5th December, 1981. However, after moving the learned Fifth Labour Court, Karachi for his re-instatement in service, the petitioner was re-instated in service with back benefits vide order of the Labour Court, dated 13-8-1984. Thereafter, the petitioner filed an application under section 51 of the Industrial Relations Ordinance, 1969 (hereinafter referred to as "the Ordinance"), maintaining that all the back benefits had not been paid to him by the second respondent in terms of the order passed by the learned Labour Court. According to him he had received two payments from the second respondent of Rs.15,000 and Rs.13,823.71 but all his dues had still not been paid to him.
2. Consequently, he filed the application as aforesaid, claiming his dues as follows:- "(a) The applicant is entitled to encashment of accumulated annual leaves for the period of 4 years. The respondents give 23 days leave for each year of service to the workers. On such basis the applicant was not given leave since 1981, therefore, he is entitled to 92 days of salary at Rs.47 per day. (The salary of the applicant is Rs.1,220 per month and the month means, month of 26 days). The amount outstanding is Rs.4,324.
(b) The respondents have not given conveyance allowance to the applicant and have deducted from the final list of accounts. Such deduction the applicant submits is illegal. The sum involved is Rs.5,112.16.
(c) The applicant is entitled to the medical treatment for the self and the family. During the course of illegal dismissal of the applicant, the applicant and his family under went medical treatment and the total medical expenses during the period were Rs.9,130. The applicant submitted the medical bill but he was not given reimbursement. The applicant, therefore, is entitled to Rs.9,130 on account of medical treatment."
3. The second respondent besides contesting the case on merits, also raised a preliminary objection that the application filed by the appellant under section 51 of the Ordinance was not maintainable.
4. The preliminary objection raised by the respondent found favour with the learned Labour Court which dismissed the application as not maintainable.
5. The learned Labour Court held that section 51 of the Ordinance envisaged recovery of pre- determined dues and the same did not provide for determination of the dues first and then their recovery from the employer. It further held that there was difference between the expressions "back benefits" and "legal dues" and according to it, the claim of the petitioner did not fall within the purview of the expression "back benefits" as the benefits were being claimed in connection with leave encashment, conveyance allowance and the amount spent on medical treatment by the petitioner for himself and his family. Reliance was placed on an unreported judgment of this Court in the case of Karachi Club v. Muhammad Farooq (C.P. No.D-552/81) wherein two learned Judges of this Court on examination of the provisions contained in section 51 of the Ordinance concluded that the section only contemplated recovery of money due from the employer by a workman but it did not contemplate determination of any dues claimed by the workman.
6. I have heard Mr. M.L.Shahani, learned counsel for the petitioner and Mr. Chaudhry Rashid Ahmed, learned counsel for the respondents. The contention of Mr. M.L. Shahani has been that the learned Labour Court has misconstrued the provisions of section 51 of the Ordinance as only subsection (1) thereof was considered but the scope of sub--section (2) thereof was not considered. According to the learned counsel, subsection (2) of section 51 clearly empowered the Labour Court to first determine dues by computing them in terms of money and then order their recovery as arrears of land revenue or a public demand as provided in subsection (1) of section 51. Mr. Chaudhry Rashid. Ahmed on the other hand has fully supported the impugned order.
7. "51. Recovery of money due from an employer under a settlement or award. (1) Any money due from an employer under a settlement, or under an award or decision of the Arbitrator, or Labour Court or Tribunal may be recovered as arrears of land revenue or as a public demand if, upon the application of the person entitled to the money, the Labour Court, so directs.
(2) Where any workman is entitled to receive from the employer any benefits, under a settlement or under an award or decision of the Arbitrator, Labour Court or Tribunal, which is capable of being computed in terms of money, the amount at which such benefit shall be computed may, subject to the rules made under this Ordinance, be determined and recovered provided for in subsection (1) and paid to .The workman concerned within a specified date.''
8. A closer look at section 51 indicates that the contention raised by Mr. M.L. Shahani is not without substance. The first part of section 51, no doubt, contemplates recovery of pre-determined dues from the employer as arrears of land revenue or as the case may be, as public demand. However, the second part assigns a dual function to the Labour Court ; first to determine the amount awarded by way of back benefits if such amount is capable of being computed in terms of money and second, to order its recovery from the employer as provided for in subsection (1) of the section. From the order of the Labour Court , it is clear that the second part of section 51 to which I have just referred was not considered at all by it. The claim preferred by the petitioner against the second respondent, first of all, related to his entitlement to encashment of accumulated annual leave. The amount so due was in fact computed by the petitioner himself. Besides that the petitioner also claimed conveyance allowance and medical treatment for himself and his family which was also duly calculated by him. The learned Labour Court , however, relying on the aforesaid D.B. Decision, rejected the claim of the petitioner on the aforesaid technical ground without touching the merits of his claim. The view taken by the D.B. In the aforesaid judgment has been expressed in the following terms:- "It appears from the text of section 51 reproduced above that it envisages recovery of any money due from an employer under the settlement, or under an award or decision of the Arbitrator, Labour Court or Tribunal as appears of land revenue or as a public demand, but this section does not provide for determination of any dues claimed against employer. In the instant case, the Labour Court has no doubt ordered that the respondent could be entitled to back benefits subject to the decision of the fresh enquiry. But the quantum of back benefits was not determined. It appears from the application made by the respondent under section 51 of the Ordinance that his claim is spread over 29 items, the total of which stands worked out at Rs.32,298.50. His claim was specifically denied by the petitioner in the reply statement. Obviously, the amount claimed by the respondent was not a settled sum to constitute 'money due' as to have been recovered under the provisions of section 51 of the Ordinance. It has rightly been argued by the learned counsel for the petitioner that the application under section 51 of the Ordinance, whereupon the impugned orders have been passed, was misconceived and not maintainable under law."
9. However, in another case reported as Dilkusha Enterprises Ltd., v. Abdul Rashid and others 1985 SCMR 1882, the learned Supreme Court refused to grant leave against the decision of this Court, holding that the Labour Court was empowered under subsection (2) of section 51 to direct payment of money value in lieu of any other benefit to which a workman is entitled under decision.
10. Of the Labour Court . Reference was made by the learned Supreme Court to a judgment of the Lahore High Court in the case of Seigfried Becon v. Punjab Labour Appellate Tribunal PLJ 1980 Lah. 273. In that case while examining the scope of power which could be exercised by the Lahore Court under section 51 of the Ordinance, the Labour High Court came to a conclusion that back wages which could have been earned by the workman during the period of his non-employment could be determined by the Labour Court and the same could be translated into money. It was consequently held in that case that reinstatement of the workman with back benefits would further entitle him to claim statutory bonus and leave entitlement as the same would form part of his wages. Mr. M.L. Shahani also placed reliance on the well known case of Mrs. A.V. Issacs PLD 1970 SC 415, wherein it was held by the learned Supreme Court that if the dismissal of an employee was held to be wrongful, then if it was due to no fault of the employee and consequently by virtue of a declaration given by the Court the employee was to be treated' still in service, then he should by way of consequential relief be also given his salary for the period as if he was actually rendering service. On the basis of this authority Mr. M.L. Shahani contended that the entire claim made by the petitioner against the second respondent could be included in the back benefits awarded to him by the learned Labour Court . Mr.Shahani further pointed out that leave had been granted by the Hon'ble Supreme Court against the D.B. Judgment in the Karachi Club's case. The leave granting order is reported in 1986 SCMR 1330.
11. Consequently, I am of the considered view that the order passed by the learned Labour Court suffers from a serious error as it should have decided the claim of the petitioner on merits after taking necessary evidence since it was fully empowered in this behalf under subsections (2) of section 51 of the Ordinance. No doubt, reliance was placed by the learned Labour Court on the D.B. Judgment of this Court which has binding effect on it as well as on me, but with utmost respect, I find that the case decided by the D.B. Is distinguishable, because full scope of section 51 of the Ordinance was not considered by the D.B. Furthermore, the view taken by me receives full support from the cases decided by the Hon'ble Supreme Court and the High Court of Lahore, reported in 1985 S I C M R 1882 and PLJ 1980 Lah. 273 respectively.
12. For the aforesaid reasons this petition was allowed by the shorn order, dated 18-2-1987, and the order passed by the learned Labour Court , dated 3-8-1986 was set aside being without lawful authority and the case of the petitioner was ordered to be remanded to the learned Labour Court for disposal on merits. The parties are left to bear their own costs on view of the questions raised in this petition.
13. M.Y.M. G-15/K