' This is a revision reporting that the order dated 8-14991 recorded by the learned Presiding Officer, Punjab Labour Court No, 2, Lahore, whereby the petition brought by the petitioner under section 51 of the Industrial Relations Ordinance, 1969 for the determination and recovery of back benefits was dismissed, is without jurisdiction and of no legal effect.
2. The facts are that the petitioner had been removed from service and his petition brought under section 25-A of the Industrial Relations Ordinance, 1969 was accepted and he was directed to be reinstated in service with back benefits. The case of the respondents is that after the petitioner was directed to be reinstated in service with back benefits and before he was given duty, Kh. Tariq Masood, Advocate, who was counsel for the petitioner in the grievance petition, had asked R.W. 2, Assistant Director that if the order of reinstatement with back benefits passed in favour of the petitioner was not challenged in appeal and duty was given to the petitioner, he would forego his right to back benefits and that this offer was accepted, whereupon the petitioner had brought Exh.
R.1 bearing his signatures and the signatures of his counsel Kh. Tariq Masood and thereupon he was given duty. The petitioner denies his signatures on Exh. R.1 and denies to have asked or authorised Kh. Tariq Masood, Advocate, that if no appeal was preferred and duty was given to him he was prepared to forego back benefits.
3. The petitioner has appeared as his own witness as P.W. 1, wherein he denied to have asked Kh.
Tariq Masood, Advocate, that if the order of reinstatement was not challenged in appeal by the respondents, he would forego back benefits. To rebut his statement Mr. Abdul Hamid Tanvir, Senior Clerk, Wasa, L.DA. (R.W.1), Mr. Hafeez Qureshi, Assistant Director (R.W. 2) and Kh. Tariq Masood, Advocate (R.W. 3) were examined. Before the petition under section 51 was brought, the petitioner had brought an application for Contempt of Court, which was filed as the question of discharge of back benefits was involved, which needed evidence. While filing the contempt petition it was remarked that the petitioner may, if so advised, seek judicial remedy separately with regard to his right to recover back benefits.
4. It has been argued by the learned counsel for the petitioner that the order of reinstatement with back benefits passed by learned Labour Court No, 2, had become final as is provided by section 37(4) of the Industrial Relations Ordinance, 1969 and neither the said question could be re-opened, nor such a plea could be taken in answer to the petition brought under section 51 of the Industrial Relations Ordinance, 1969. The argument has no force. If a plea of discharge is taken in answer to an application brought under section 51, it is to be decided by the Court as an incidental question.
There can be no other forum except the Court which is proceeding with the petition brought under section 51 to entertain and decide the question of discharge. If it is held that no such question can be raised, it would mean that even though after the decision of the grievance petition any amount is paid, the same cannot be adjusted and the employer is liable to pay the back benefits doubly.
5. The argument of the learned counsel for the petitioner, however, is not without force that Kh.
Tariq Masood, Advocate, had ceased to be a counsel for the petitioner so far as the question of discharge of back benefits is concerned. The powers given in the power of attorney with regard to compromise etc. Can be exercised when some matter is pending in the Court and not after the matter has been decided. No special power of attorney for the purpose of discharge of back benefits was executed by the petitioner in favour of Kh. Tariq Masood, Advocate. In the existence of such a special power of attorney, no doubt, it could be said that the said Advocate had authority to have a talk with the respondents with regard to the discharge of back benefits. So whatever Kh.
Tariq Masood, Advocate, did, it was not on behalf of the petitioner. So far as Exh. R.1 is concerned, it should have been from the petitioner since it was he who is alleged to have foregone his right for back benefits. The wording of Exh. R.1 clearly shows that it was from Kh. Tariq Masood for the petitioner. The signatures purporting to be of the petitioner do not appear on the right place.
Usually the signatures of the executant are under the writing but in the present case the alleged signatures of the petitioner appear on the left margin. There is no explanation to it. Since it was an agreement between the petitioner and the respondents, the petitioner should have been its executant. A leading lawyer like Kh. Tariq Masood is expected to be aware of the legal position that after the decision of grievance petition he had no power to act as attorney of the petitioner out of Court. If during the pendency of some case in which Kh. Tariq Masood had been a counsel, of course, it could be believable that he had under the instructions of the petitioner prepared the writing. So far as R.W. 2 is concerned, he being the Assistant Director Legal was to a great extent an interested witness. It was expected from him to have insisted that the writing Exh. R.1 should have been from the petitioner bearing his signatures on the right place. Since he was employed to assist WASA, L.D.A. On the legal side, he is expected to know the legal repercussions and niceties and it cannot be said that he failed to understand the importance of Exh.R.1. So far as RW-1 is concerned, he being an employee of the respondents may be said to be an interested witness. Even if it be accepted for a moment that in reality there was some compromise between the parties, the safest course for both the parties was to effect the compromise in the pendency of an appeal. The respondents should have preferred an appeal within limitation and during the pendency of the appeal the statement of the petitioner could be got recorded to the effect that he wanted to forego his right of back benefits if the appeal was withdrawn or the order of the learned lower Court was modified disallowing back benefits to him. No court-fee is paid on the memorandum of appeal, therefore, the respondents were not likely to incur any expenses. Even during the pendency of the grievance petition a compromise could be effected between the parties and on the statement of the parties the respondent could have reinstated the petitioner without back benefits. The fact that Exh. R.1 is not from the petitioner but from Kh. Tariq Masood, Advocate, coupled with the fact that no compromise took place during the pendency of the grievance petition and the method of effecting compromise after preferring an appeal was not adopted, clearly shows that the plea that the petitioner had foregone his right of back benefits after the decision of his grievance petition, is not correct. Since the petitioner was denying the factum of compromise, he could only himself come in the witness-box to say in the negative and could not produce any other evidence. The evidence produced by the respondents, which has been scrutinized and discussed above, does not inspire confidence, and the learned lower Court erred in accepting the same.
6. As a result of the observations made above, the revision is accepted and setting aside the impugned order of the learned lower Court, the case is B remanded for determination and recovery of back benefits.