DECISION This is an appeal against an award of the learned Chairman, Second Sind Labour Court, Karachi, on an application under section 34 of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance), dated October 21, 1972. The learned Court by the impugned order came to the conclusion that, "the matter directly and substantially is issue in the present proceedings having already been adjudicated and decided on merits by a Court of competent jurisdiction, the present application is undoubtedly barred by the principle of res judicata", and therefore, dismissed the application. The facts giving rise to the present appeal briefly put are these.
2. The appellant Khuda Dino made an application under Standing Order 18 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Standing Orders Ordinance), to the Second West Pakistan Industrial Court, Karachi, for re-instatement with full back benefits. The application was allowed on 27th April, 1970, whereby the learned Labour Court passed the following order "The petitioner will, therefore, be entitled to get his wages for the period of his forced unemployment from the respondents till such time when he is either taken back on work or his service are terminated in accordance with law."
3. The appellant addressed two letters dated 30th June, 1970 and 11th March, 1971, to the respondent, but did not receive any reply. Khuda Dino, thereafter, sent letter to the Director, Labour Welfare on 6th July 1971, which, it seems was forwarded to the Commissioner under Payment of Wages Act, Hyderabad. The Commissioner, Workmen's Compensation and Authority under the Payment of Wages Act, on 9th October 1971, came to the conclusion that the appellant had received an amount of Rg. 7,028 in full and final settlement of all his dues from the respondent up to 30th June 1970. The Commissioner, therefore, dismissed the application of the appellant.
4. Mr. Abdullah Balooch, the learned Representative for the appellant, very strenuously contended that the order of the Commissioner, dated 9th October 1971, could not operate as res judicata as the same was not on an application made by the appellant. There is not much force in this contention, lt is true that the appellant did not make a formal application within the meaning of the rules framed under the Payment of Wages Act, 1936. The fact, however, remains that the application of the appellant to the Director, Labour Welfare, for payment of his dues was forwarded to the Commissioner under the Payment of Wages Act, 1936, for disposal. The appellant not only submitted to the jurisdiction of the Commissioner, but contested the objection of the respondent that the application before the Commissioner was not maintainable. The appellant in his rejoinder dated 3rd September 1971, submitted that the Commissioner had jurisdiction to dear with the matter. The appellant further prayed that all his dues be paid to him. The Commissioner had jurisdiction to deal with the payment of wages of the appellant. The appellant, if he had any grievance against the order of the Commissioner, dated 9th October 1971, should have gone in appeal, which he did not do. So far as this aspect of the case is concerned, I would maintain the order of the learned Court to this extent that the appellant is not entitled to claim his dues up to 30th June, 1970.
5. The question for consideration now is as to whether the leamed Chairman of the Labour Court was justified to dismiss the application of the appellant in toto. I have gone through the application under section 34 of the Ordinance. The prayer contained in the application is in two parts, i. e., for re-instatement and for payment of wages. The order of the) Commisssoner under the Payment of Wages Act, cannot operate as res jusdicatat so far as the question of re-instatement of the appellant is concerned.! Admittedly, the appellant had not been so far re-instated. It is open to the Labour Court to consider afresh as to whether the appellant had resigned, as stated by the respondent, or not. If he had resigned, the question of his re-instatement would not arise. On the other hand, if it is held that the appellant had not resigued from service, he would be entitled to re-instatement till his services are terminated in due course of law.
6. In the result, I would modify the award of the learned Labour Court and remand the case for disposal of the question as to whether the appellant had resigned from service, as stated by the respondent, or not The learned Court, after hearing the parties on this aspect of the case, would give its decision.