This petition is directed against the order dated 7th March 1974, passed by -the 2nd Sind Labour Court, Karachi, whereby the order of the Junior Labour Court No. IV dated 9th November 1973, ordering re-instatement and payment of 24 months basic salary to him was reversed.
2. The brief facts of the case are that the petitioner was employed with respondent No. 2 as Chemist since 19th April 1965 and in January 1973 he was drawing a salary of Rs. 775 per month. In February 1973, the: respondent No. 2 closed down the Pharmaceutical Division of their Factory and terminated the services of the petitioner vide letter dated 7th February 1973 with immediate effect.
Abiding by the terms of the appointment letter of the petitioner dated 15th April 1965 the petitioner was paid all the legal dues by the respondent No. 2 on 9th February 1973.
3. Soon after the termination of services of the petitioner the Trade Union of the Workers existing in the organisation entered into a settlement with the Management which inter alia provided that 24 months basic salary will be paid to the workers who have worked in the Factory for more than five years but less than ten years. Calculating the benefits in the light of this settlement the petitioner found that he would have been entitled to receive a sum of Rs 18,600 at the the of termination of his services if this settlement was applicable to his case as against an amount of Rs. 6,200 received by him under the old rules.
4. Consequently the petitioner filed a case under section 25-A of industrial Relations Ordinance, 1969 in the Junior Labour Court No. IV, Karachi who directed the respondent No. 2 to pay an amount equivalent to 24 months basic salary of the petitioner as per terms of the settlement as special ex gratia. This order was however set aside by the Labour Court No. 11 before whom the respondent No. 2 filed an appeal. Some of the reasons for reversing the order of the Junior Labour Court were that:
(i) grievance notice through an Advocate was not a valid notice within the meaning of section 2(xxiii) of Industrial Relations Ordinance, 1969; (ii) the petitioner was not a workman as defined under section 7(xxviii) of Industrial Relations Ordinance, 1969; (M) the application was the-barred; and (iv) the Junior 4abour Court could not order the payment of 24 months basic salary when it had refused to grant the prayer of the petitioner for re-instatement in service.
5. The learned counsel for the petitioner has contended that the notice through an Advocate was a valid notice. He placed reliance on Dawood Hosiery Mills v. Hazrat Muhammad Yousuf (PLD 1975 Kar.. 312) wherein it is held that them notice within the meaning of section 25-A issued by the Advocate on behalf of the workman was sufficient compliance with the provisions of section 25- A(1) of Industrial Relations Ordinance, 1969. However a different view was taken on this point in Muhammad Hussain v. Sind Labour Court No. IV (1975 PLC 546) and it was held that the grievance notice given by the Advocate was not a valid notice because section 25-A(1) of Industrial Relations Ordinance, 1969 required that the service of the notice should be effected by the workman "himself " or through his shop steward or Trade Union". The emphasis was laid on the word 'himself' and it was held that the notice should be sent to the employer by a workman in case of termination of his service either himself or through his shop steward or Trade Union. However, I do not want to go into the controversy because there are several other points in this writ petition on which it can be disposed of.
6. The learned counsel for the petitioner next contended that the petitioner was workman and was covered by the definition of the term "workman" as defined in Industrial Relations Ordinance, 1969.
According to him, he was drawing a salary of less than Rs. 800 per month and was not performing his functions of managerial or administrative nature. He placed on record today a letter (Exh. D-5) which enumerates the functions which had been assigned to the petitioner by the Management.
The title of this letter; "Duties of Mr. Ahmed Ibrahim Shamsi, Chemist, Packing Section (under observation)". This letter was kept on record by me because no objection was raised to its admission. On the other hand the opposite counsel accepted the authenticity of this letter. From the perusal of this letter I do not find that the petitioner was assigned any such functions which could by any stretch of imagination be termed as supervisory, managerial, administrative functions. The Labour Court was therefore misled in holding that the petitioner was an employer and not a workman.
7. The next question argued before me is that of limitation. The decision of this question directly depends on the fact whether the grievance, notice sent through the Advocate was a competent notice or not. In case I hold that the notice was not competent then it will be futile to decide the point of limitation also. If the notice is considered a valid notice then admittedly, the application would be within the. The learned counsel for the respondent No. 2 does not controvert this position.
Since I am not inclined to decide the question of the validity of the notice in this petition therefore I would not also touch the point of limitation.
8. The next point argued before me by the learned counsel for the petitioner is that the junior Labour Court was not competent in ordering the payment of 24 months salary by way of retrenchment benefits when it had specifically refused the prayer of the petitioner to re-instate him in service. I do got find any force in this argument. The junior Labour Court could competently order the payment of retrenchment benefits even in case it had refused to grant the relief of the petition for re-instatement in service. C There is no embargo placed on- the passing of any such orders under section 25-A of Industrial Relations Ordinance, 1969. In Glaxo Laboratories (Pak.) Limited v.
Pakistan (PLD 1962 SC 60) it was held that: - "It would however depend upon the circumstances of each case whether the relief of re instatement or compensation for removal or discharge from service would proper remedy."
From this observation it transpires that it was not necessary in all cases of removal from service that re-instatement in service should always be ordered. The junior Labour Court can grant compensation or monetary benefits in proper cases even it has refused to re-instate a worker.
9. The Labour Court has lost sight of the fact that the agreement between the workers Union and the respondent No. 2 was admittedly affected on 21st February 1973 and it was under that agreement that 24 months basic salary was allowed to the workers whose services were terminated after a period of over five years and less than 10 years. The petitioner's services had been terminated on 7th February 1973 and he had received his dues on 9th February 1973, as such on the date of the enforcement of the settlement he was not a workman in the respondent No. 2 organisation. Therefore, the provisions of the settlement would not apply to him. It has been admitted before me by the learned counsel for the petitioner that the settlement was not given retrospective effect. Therefore, the admitted position is that the petitioner's case could be covered by the settlement only if his services had been terminated after the coming into force of the said settlement and not before that. On consideration of this point alone I find that the petitioner is not entitled to the benefits conferred upon the workers by clause 3(I) of the settlement and that the Junior Labour Court had wrongly invoked this provision to allow 24 months basin salary to the petitioner.
10. For the foregoing reasons I am of the opinion that this petition has no substance. The same is therefore dismissed but with no orders as to costs.