DECISION ' This is an appeal against the order dated 5-12-1990 passed by the learned Presiding Officer Sindh Labour Court No,III, Karachi whereby grievance application of the appellant was dismissed.
2. The brief facts of the case appear to be that appellant was admittedly employed as conductor by the respondent. According to the appellant when he appeared for duty on 940-1986 he was not allowed to go inside and was informed that his services were terminated. He sent such application and telegram to the Manager but of no avail. On 18-11-1986 he was served with the charge-sheet wherein it was alleged that he remained absent without leave from 9-10-1986 to 11-11-1986.
However on 23-11-1986 he served grievance notice upon the respondent against the alleged oral order of 9-10-1986 terminating his services. He filed grievance petition on 13-12-1986. However in pursuance of charge-sheet a domestic enquiry was held against him and the appellant having been found guilty in the domestic enquiry was dismissed vide order dated 7-9-1987. The grievance petition was first decided by the learned Sindh Labour Court No, III at Karachi vide order dated 29- 9-1988 when it was dismissed on the ground that the appellant was not present when grievance petition was presented. This order was set aside by this Tribunal in appeal vide order dated 23-10- 1987 and the case was remanded back to the learned Labour Court to allow the parties to lead evidence as to whether the grievance application was presented by the appellant and then to decide the case on merits.
3. I have heard Mr. Abdul Munim Khan for the appellant and Mr. Gul Muhammad Soomro for the respondent and have also gone through the record and proceedings of this case.
4. It would be clear that the grievance notice as well as grievance application filed by the appellant is against the alleged oral order of his termination from service on 9-10-1989. Admittedly on 18-11- 1986 he received charge-sheet for remaining absent without permission from 9-10-1986 to 11-11- 1986 to which appellant also replied. It would thus be apparent that even if there was any oral order terminating services of the appellant on 9-10-1986 it was impliedly withdrawn when the respondent charge-sheeted the appellant on 18-114986 for remaining absent without leave from 9-10-1986 to 11414986. The respondent would not have issued such charge-sheet if they had considered the services of the appellant terminated from 9-10-1986. The appellant had even replied to this charge sheet.
5. After this alleged oral order of termination of service which was impliedly recalled by issuance of charge-sheet, there is another order in writing dated 7-9-1987, whereby the appellant was dismissed from service for having been found guilty of misconduct in the domestic enquiry. The appellant claims that he was not served with the notice of enquiry and was not communicated the dates and place of enquiry. I need not go into this aspect of the contention of the appellant, because no such grievance was brought to the notice of the respondent employer and no grievance petition with regard to this grievance was filed by the appellant before the learned Labour Court.
6. Only the grievance brought before the employer and before the Labour Court was the alleged oral order by respondent terminating service of the appellant from 9-10-1986. This order stands impliedly recalled by the charge-sheet dated 18-11-1986. Even the grievance notice was given by the appellant after this charge-sheet, viz. On 23-11-1986. However after this alleged oral order of termination from service, there is order in writing dated 7-9-1987, which holds the field. Even if it is held that there was any oral order of termination of service, and even if held to be illegal, the order dated 7-9-1987 would still be in force and the appellant cannot be ordered to be reinstated in service. As already pointed, this order dated 7-9-1987 has not been challenged in the present grievance petition. In fact the grievance application of the appellant had become infructuous after the issuance of charge-sheet and after the issuance of dismissal order in writing.
7. The next question which needs consideration is whether the appellant is entitled to the arrears of salary and other dues upto the date of his dismissal from service viz. 7-9-1986. The appellant is alleged to have remained absent from 9-10-1986 to 11-11-1986 without leave for which he was charge-sheeted and charge is alleged to have been proved in the domestic enquiry.
8. I have already pointed that the proceedings of enquiry as well as order passed on basis of enquiry, has not been challenged in the grievance application.
9. In para 12 of the grievance application, the appellant has averred that he had sent grievance notice to District Manager on 23-11-1986 through registered A/D. The copy of the grievance notice had been produced as Annexure-H to the grievance application alongwith postal receipt. The respondent in the reply statement had admitted the receipt of notice. There is nothing on the record to show that after receipt of grievance notice, in which the appellant has rightly or wrongly alleged to have been orally removed from service, the respondent called upon the appellant to join service or issued any order of his suspension. He has not been charge-sheeted or found guilty for remaining absent without leave after 23-11-1986. The appellant would not be entitled to receive his salary for the-period for which he had been found in the domestic enquiry to have remained absent. After receipt of grievance notice, the respondent did not even reply to the grievance notice intimating the appellant that he had not been removed from service and he could come and join service. Thus the impression of the appellant that he had been removed from service does appear to have removed by the respondent though as pointed above technically after issuance of charge sheet he would be deemed to have continued to remain in service. Under these circumstances the appellant would be entitled to arrears of his dues from 23-11-1986 to 7-9-1987 when the order of his dismissal was passed.
10. With this modification the appeal of appellant is dismissed. The dues of the appellant as held above be paid to the appellant within three months, if not dues paid.