This is an appeal against an award of the learned Presiding Officer of Sind Labour Court No. V, Karachi, dated February 27, 1973, whereby the learned Labour Court ordered the re-instatement of the respondent as confirmed Inspector from December, 1963 and payment of Rs. 1,980, which the respondent was entitled to as increment from 1963 in his pay. The fats necessary for the disposal of this appeal briefly put are these.
2. The respondent was employed as a Conductor. He was promoted as acting Inspector in the Mohammad Ali Tramway Company (hereinafter called the appellant) in May, 1963. The case of the respondent was that he worked up to June, 1972, in a permanent vacancy as an acting Inspector.
On the other hand, the case of the appellant was that there was no permanent post of Inspector.
The respondent was given a choice to acquaint himself with the various duties of Inspector by promoting him as an acting Inspector. He was also given an allowance of Rs. 2a). The case of the appellant further was that as a number of routes of the Tramway were closed, the appellant had to wait for promoting an acting Inspector as Inspector. In fact, the appellant had decided to revert the respondent as Conductor, but on the request of the respondent, he was allowed to continue as acting Inspector on payment of Rs. 20 as allowance.
The respondent was charge-sheeted on 15th June, 1972, for being negligent in his duties. The respondent gave his explanation in response to the show-cause notice, which was not found satisfactory by the appellant --Company. The respondent, therefore, without being given an opportunity to be heard was reverted as Conductor on 20th June, 1972. Thereafter, his services were terminated from 1 August, 1972. According to the appellant, the services of the respondent were terminated at his own request and not for any misconduct. The respondent made an applicationst on 16th September 1972, under section 25-A read with section 34 of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance). His case in short was that he should be deemed to have become permanent Inspector since May, 1963 and, therefore, he was entitled to yearly increments up to the date that his services were terminated. He also prayed for re- instatement, as he had not tendered his resignation.
4. I have heard the learned Representatives for the parties. The first point that requires consideration is as to whether the respondent can be said to have resigned from service, as alleged by the appellant. The letter which is said to be the letter of resignation on the record of the Labour Court, The relevant portion of the letter reads as under:- "Secondly if this is not possible I may be retired honourably after payment of the arrears of increment, gratuity and double fund etc. If after all nothing is done towards my appeal as mentioned above there will be no value of my life and I will be compelled to resort to hunger strike till death."
5. This letter is Annexure 'E' on the record of the Labour Court. The letter was addressed to the Assistant Director, Labour Welfare (Central Division), Karachi. It is surprising how the appellant came to have this letter. In the second place, appellant was not requested to take any action on this letter. In the third place, the respondent, when he addressed this letter to the Assistant Director, seems to have been greatly agitated in his mind. He threatened to resort to hunger strike till death.
I would hold that the letter of resignation was not addressed to the appellant-Company and, therefore, it should have not acted on this letter without a reference to the respondent himself, if he wanted to resign through free will.
6. The next question that requires consideration is as to whether the respondent can be deemed to have been confirmed in May, 1963. In this connection, reference may be made to a settlement between the Karachi Tramway Workers' Union and the Mohammadali Tramways Company. The settlement is dated 10th May, 1972. The operative portion of this settlement reads as under :- "It is agreed that the services of all acting Inspectors will be confirmed with effect from the 10th May, 1972 and not with retrospective effect. The Union on behalf of the concerned employees is satisfied with this agreement."
7. Under section 39 (d) of the Ordinance settlement, "where a collective bargaining agent is one of the parties to the dispute, be binding on all workmen who were employed in the establishment or industry to which the industrial disputes relates . . . . . " Mr. M. H. Siddiqi, the learned Representative for the respondent however, contended that the settlement was not binding on the respondent as it was against his interest. The respondent under the Standing Orders Ordinance should be deemed to have been confirmed from May, 1963, as there were vacancies. There is no A force in this contention. Reference may be made to the statement of Mr. Shaikh Mohammad Jafar, who is Office Incharge of the appellant-Company. He stated in paragraphs 3 and 4, the circumstances under which the respondent was allowed to perform the duties of acting Inspector Mr. Shaikh Muhammad Jafar clearly stated that there were no permanent vacancies as a number of routes of the Tramway had been closed. There is no cross-examination of Mr. Shaikh Mohammad Jafar on this point that there were no permanent vacancies. He has also been not cross-examined in respect of the statement that at one time the Company had decided to revert the respondent as Conductor, but on his request he was allowed to continue as acting Inspector on payment of Rs.
20.00 as acting allowance. In these circumstances, I would hold that the respondent was confirmed as Inspector only from the date when the settlement between the Union and the Company was arrived at, i.e., with effect from 10th May, 1972.
8. The last point that requires consideration is as to whether the respon--dent had been illegally reverted as Conductor on 20th June, 1972. The admitted position is that the respondent was not charge-sheeted and was not given an opportunity to be heard about the alleged misconduct. The order reverting the respondent on 20th June, 1972, as Conductor was bad in law. In the result, the respondent is entitled to re-instatement as permanent Inspector. The question that requires consideration now is about back benefits. As a rule I do not allow back benefits in cases where I order the re-instatement of a workman on the ground of defective enquiry. In such cases I order that back benefits would depend on the result of the enquiry. In the present case, considering the nature of the allegation, which was neglect of duty, and because of uncalled for action of the appellant in taking action on a letter not addressed to it, I would order the appellant to pay back benefits from 1st August, 1972 till the date that it re-instates the respondent. It would be open to the appellant, if it so desires, to charge-sheet the respondent, give him an opportunity to be heard and then pass such order as it deems proper.
9. In the result, the award of the learned Labour Court dated 27th February, 1973, is modified to the extent mentioned above.