1. This appeal challenges order dated 19-3-1989 passed by learned Presiding Officer, III Labour Court Balochistan, whereby respondent was reinstated with back benefits from the date of dismissal leaving discretion to appellant for holding fresh enquiry on the basis of show-cause notice already issued to respondent/employee.
2. Mr. Jamil Raza Zaidi, learned counsel for petitioner vehemently urged that grievance petition filed by respondent was inherently defective for want of grievance notice contemplated by section 25-A of Industrial Relations Ordinance, 1969. He further emphasised that Labour Court while allowing option for holding enquiry could not legitimately direct payment of back benefits; reliance in this behalf was placed on the observation of Division Bench judgment of Sindh High Court in case Mahmood Shah v. Dawood Cotton Mills 1982 PLC 365.
3. On the other hand Mr. Ghuncha Gul, learned counsel for respondent attempted to contend that observation pertaining to holding of fresh enquiry was unlawful. He strenuously canvassed that apparently charge-sheet was defective, therefore, departmental proceedings against respondent were devoid of lawful authority. However learned counsel did not dispute the legal position that when Court permits holding of fresh enquiry in that event liability for back benefits is always subject to final results of fresh enquiry.
4. I have considered the arguments addressed by learned counsel for parties. Apparently objection about non-service of grievance notice, was not raised in the trial Court. Besides there is nothing on record to substantiate this contention. Similarly arguments of learned counsel for respondent, about defect in the charge-sheet or direction for holding fresh enquiry cannot be lawfully entertained. Evidently it was open for the respondent/employee to challenge observation of trial Court by way of regular appeal under section 37(3) of I.R.O. or cross-objections within prescribed period of limitation. Thus having failed or omitted to avail specified remedy, obviously he cannot he permitted to raise said ground while defending present appeal. The principle of law about payment of back benefit when fresh enquiry has been permitted is well-settled. Additionally relying on the observation of aforequoted judgment and concession made by learned counsel for respondent, I am inclined to partly accept the appeal and hold that direction for back benefits shall be subject to result of fresh enquiry. Impugned order is modified in the above terms and appeal is disposed of accordingly.
5. Parties are left to bear their own costs.