DECISION ' This is an appeal against the order dated 13-12-1989 passed by the learned Presiding Officer, Fourth Sindh Labour Court, Karachi, whereby the grievance petition of appellants was allowed and the learned Labour Court ordered them reinstatement of all the 8 appellants and further directed that they should be paid 30% back benefits.
2. I have heard Mr.S.M. Kohistani, learned Advocate for the appellants and Mr.S.M. Yaqoob, learned Representative for the respondents and have also gone through the record and proceedings of the case.
3. The only question that requires consideration is whether the appellants are entitled to the balance of 70% back benefits. It is the only prayer made by them in their appeal. The respondents have not filed any appeal against the order of reinstatement of the appellants.
4. Mr. S.M. Kohistani, argues that the appellants have been declared to be permanent employees by the learned Labour Court, but I am afraid, I can't agree with him.
5. Admittedly, the appellants had filed grievance petition No,147 of 1985 in which the learned Labour Court had treated the appellants as temporary and daily wage workers. This decision was upheld by this Tribunal and therefore, attained the finality. The contention of the appellants, that they were permanent workmen, in the current grievance petition before the -learned Labour Court was repelled by the learned Labour Court in the following words:- "The arguments on behalf of the petitioners have been so advanced as to show that the petitioners are entitled to be treated as permanent workmen since from their appointment but the said intention appears to be patently fallacious for the reasons that the nature of their appointment has already been treated as temporary on daily wages by my learned predecessor in above mentioned grievance Petition No,147 of 1985 of the petitioners which has also been upheld by the Hon'ble Tribunal in its decision mentioned above which are in the evidence as Exhs. A/1 and A/2."
6. Mr.S.M. Kohistani, further argued that in the operative part of the order, the learned Labour Court has allowed the grievance petition and therefore, the learned Labour Court would be deemed to have allowed their prayer to be treated as permanent workmen. It may be pointed, that in the prayer clause in the grievance petition, the appellants have not specifically prayed, that they should be treated as permanent workmen. Such specific prayer was more necessary in the instant case, as in the previous litigation they had been held to be temporary employees on daily wages.
No doubt in the body of the grievance application, the appellants have described themselves as permanent workmen, but the operative part of order did not show that the description was accepted by the learned Labour Court, specifically in view of its observations quoted above.
7. Mr. Kohistani further argued that reinstatement could not have been ordered of daily wage workers or temporary workers. I do not find any such bar under any statute. Be that as it may, neither any appeal has been filed against the order of reinstatement nor in the present appeal the appellants have specifically made prayer for declaring them as permanent employees. As a matter of fact, such prayer could not be raised in appeal, when it was not raised in the learned Labour Court.
8. The question arises as to whether the daily wage workers are entitled to any back benefits, for the period they had not worked. Normally, the reply would be in negative. However, in the instant case the learned Labour Court has granted 30% back benefits, against which no appeal is filed. Mr. Kohistani has relied upon the case of Syed Asghar Imam v. Sindh Labour Appellate Tribunal and 2 others, reported in 1990 PLC 346, in which the learned Division Bench of Sindh High Court at Karachi has observed that the back benefits could have not been denied after reinstatement when there was no proof of worker's earning anything during the relevant period. This case is distinguishable from the instant case as it was not case of daily wage workers. Mr. Kohistani has also relied upon the decision of a Single Judge of Karachi High Court reported in PLD 1977 Karachi
83. This case is also distinguishable for the aforementiond reasons.
9. In view of the above discussions, the appeal is dismissed.