DECISION ' This appeal is directed against the order, dated 19-12-1987, passed by the learned Presiding Officer, Sind Labour Court No, IV at Karachi.
2. The facts of the case in brief are that the appellant was removed from service by the respondents on 30-1-1986. He had been charge-sheeted and before the enquiry could be held, he is alleged to have submitted his resignation on the basis of which his services were terminated by the respondents. He filed grievance petition No, 73 of 1986 in the Labour Court. The learned Presiding Officer' of the Labour Court, vide his order, dated 7-9-1986 held that his resignation was not voluntary. He, therefore, set aside the order of termination of the services of the appellant and allowed his grievance petition and further directed that the appellant should go and face the charge-sheet before the District Manager. It is further alleged that the enquiry on the basis of the charge-sheet was not completed but the appellant was removed from service on medical grounds vide order, dated 11-12-1986. The appellant has not challenged the order of his removal from service, but, filed an application under section 51,I.R.O. 1969, for the payment of the salary and other benefits to him during the period he was removed from service from 1-2-1986 to 23-9-1986.
3. The respondents resisted the application. The learned Labour Court dismissed the application of the appellant on the ground that back benefits were not granted to him by the Labour Court in the previous order and further that the appellant has not been able to show that he had remained un- employed during the period, in question.
4. I have heard Mr. S.M. Kohistani, learned Advocate for the appellant and Mr. Gul Muhammad Soomro, the learned representative on behalf of the respondents corporation.
5. I have gone through the first order of the learned Labour Court on the grievance petition under section 25-A, I.R.O. 1969, filed by the appellant. In this order, there is no Specific order either allowing or disallowing back benefits. Application, as a whole, was allowed as order of termination of service of the appellant was considered to be illegal and vas consequently set aside.
6. While disallowing the back benefits, the learned Labour Court has relied upon 1985 PLC 816, wherein the learned Labour Appellate Tribunal, Punjab, disallowed the back benefits to the petitioner as he had not stated before the Labour Court that he had remained unemployed. It may be pointed that neither there is evidence on record to show that the appellant was employed during the period, in question, nor there is any evidence to show that he was not employed. In the cross-examination, he was only put a question that he had not stated in his grievance petition that he had remained unemployed. However, no question was suggested to him that during the period, in question, he had remained employed nor such evidence has been produced. In fact, this plea had not been taken by the respondents in the reply statement or in the reply to the grievance notice. He has not been found guilty of any misconduct under any domestic enquiry and the order of termination of services was declared to be illegal by the competent Court against which no appeal was filed. The learned Counsel for the appellant had relied upon the case of Divisional Superintendent P.W.R. Karachi v. Bashir Ahmed, PLD 1973 SC 589. This case does not pertain to the claim under I.R.O. 1969, but, it is a claim under the Wages Act. Their Lordships had observed that `wages' as defined in section 2(vi) of Payment of Wages Act does not necessarily mean wages earned; where employee to whom Act IV of 1936 applies is ready and willing to render service but is illegally kept out, he is entitled to full wages unless deduction is allowable under the Act." The principle enunciated by their Lordships in the said case would be applicable to the present case also. It is not the appellant who was not ready or not willing to render the services, but, it was the respondents, who did not afford him opportunity to render the services by removing him from service through an illegal order.
7. With due respects to the view expressed by the learned Labour Appellate Tribunal, Punjab, in the above cited case, in my opinion, under the circumstances of the case, the appellant is entitled to the legal benefits/dues for the period, in dispute, viz., 1-2-1986 to 23-9-1986.
8. In view of above discussion, the appeal is allowed in the above terms and the impugned order of the learned Labour Court is set aside.