DECISION This is an appeal against an award of the leamed Presiding Officer of Sind Labour Court No. II, Karachi, dated June 23, 1973, whereby the learned Labour Court dismissed the application filed under section 34 of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance), The facts briefly put are these.
2. The appellant was employed in the Pakistan Council of Scientific and Industrial Research. At the time when he made the application under section 34 of the Ordinance, he was Superintendent in the respondent concern. The appellant prayed for the following reliefs:-- "(1) The applicant was/is entitled to confirmation on and after 6 months from the date of appointment on a permanent post of Assistant on which the applicant was appointed on 21-11-1956. (2) The applicant has a legal right at law to be made permanent and to promotion on the rule of seniority-cu/w-fitness as established. (3) The applicant was entitled to promotion on the rule of Seniority and Efficiency as Superintendent w. e. f. 1-9-1961 and he is entitled to such salary/adjustment of employment as applicable in the grade and the applicant was discriminated by the supersession of Mr. M. Ismail over me. (4) The applicant has got a legal right at law to continue in employment until the applicant reaches the age of superannuation and/or he is otherwise declared unfit and/or he is adjudged guilty. (5) The applicant seeks temporary/permanent injunction to refrain and prohibit the respondents Nos. 1 to 3 from discharging/dismissing or otherwise punishing him or terminating his services save in accordance with law, and principles cf natural justice and to deal with him in accordance with law and law alone but not arbitrarily and maliciously."
3. The appellant prayed for these five reliefs in his application dated 30th October 1971. The respondent filed its written statement on 29th December 1971. It was stated in paragraph 8 of the reply statement that the applicant was charge-sheeted and an enquiry was held against him and he also got the show-cause notice before he was compulsorily retired. The appellant in reply to this stated in his counter affidavit dated 31st January 1972, as under, which was received by the Court in February, 1972:-- "That alleged order was neither served nor sent. This is also obvious from the fact that I had availed casual leave on 6-11-71 by advance information, application dated 5-11-71 to take my ailing wife to the Liaquat National Hospital, Stadium Road, Karachi. As on 6-11-71 I also fell ill and suffered from troists as diagonised by Dr. Farhat Alam, M.B.,B.S. and consequently had to prolong leave. I was advised to take rest."
4. It is the case of the respondent that the appellant was served with the notice terminating his services, dated 6-11-71. In this connection, Mr. Inayat Hussain, Officer on Special Duty jn the respondent concern, filed his affidavit. He stated that the notice regarding compulsory retirement was served on the appellant, through Mohammad Iqbal, who was a Peon at that time, at his residence on 6-11-71. He also stated that a registered letter was also sent to the appellant, but the appellant refused to take delivery thereof. Mr. Inayat Hussain was cross-examined, but there is nothing in his cross-examination to suggest that be had any reason, whatsoever, to falsely state that Mohammad Iqbal had served the appellant on 6-11-71. The only questions that were put to Mr. Inayat Hussain were to the effect that Mohammad Iqbal was not a Peon and that he had been taken in service through Mr. Inayat Hussain. At any rate, the registered letter, Exh. B-2, was produced through the appellant in cross-examination. He stated as under:-- "I see an envelope but I had not received the same. I produce it as Exh. B-2."
5. The envelope bears the endorsement "refused". The appellant did not give any explanation after seeing the envelope about the endorsement of the Post Office that he had refused the same. It appears to me from the statement in the counter reply of the appellant, which I have already reproduced, that the appellant had fallen ill on 6-11-71, and was advised rest. The endorsement of the Postman on the envelope that the appellant had refused to take the letter is dated 11-11*71. At any rate, it would appear from what I have already reproduced above, from the counter affidavit of the appellant that as he was advised rest, he must have been available at his residence from 6-11-71. The possibility of the appellant having refused the receipt of the registered letter cannot be ruled out. I would hold, in these circumstances, that Mohammad Iqbal had served the letter, terminating the services of the appellant, on 6-11-71.
6. The point that requires consideration is as to whether the application under section 34 of the Ordinance filed by the applicant had become infructuous, as his services stood terminated on 6-11-71. On the face of it, if the services of the appellant stood terminated from 6-11- 71, the reliefs which I have already reproduced above, could not be granted, even if there was any violation of law. It was open to the appellant to have made an application for amendment of his application under section 34 of the Ordinance, by challenging the order of his retirement. Even if the order of retirement was not served on 6-11-71, tne appellant at least came to know about it on 29-12-1971, that he had been compulsorily retired from service. He should have at once challenged the order of his retirement. He did not challenge the order of his retirement, except by saying that it was not served on him. As I have already observed, even if it was not served, the factual position came to the knowledge of the appellant on 29-12-71, that he had been compulsorily retired on 6-11-
71.
7. In view of my conclusion that the application under section 34 of the Ordinance had become infructuous, the appellant having retired on 6-11-71, it is not necessary to deal with the other contentions of the learned Representative, Mr. A. Majeed, that the appellant was a workman and that the other findings of the learned Labour Court are also bad. The appeal is dismissed on the ground that the application under section 34 of the Ordinance, had become infructuous as the appellant had been compulsorily retired from service on 6th November 1971.