' By a judgment announced on 4-9-1995, Syed Muhammad Rafiq Shah, Presiding Officer, Punjab Labour Court No.2, Lahore accepted the grievance petition of Aamir Kamal and directed his reinstatement in service. No mention was made respecting refusal or grant of the back benefits: Aamir Kamal has laid claim to the same, by filing an appeal, under section 37(3), Industrial Relations Ordinance, 1969.
2. It is mainly contended that the learned lower Court, in not awarding specifically the emoluments of the past period to the official, has 'over-ruled' or offender against the rule of law laid down by the superior Courts of the country, and this amounts to an 'illegality' or 'transgressing of authority' on the part of the learned Court below. It is also submitted in the 'Grounds of Appeal' that it had 'prized' the 'respondent' for "causing illegal termination of the appellant; by depriving him of his wages Probably, Mr. Aamir Kamal or his counsel wants to convey to the Court that the respondent concern has been rewarded or commended, and not denounced, by the learned lower Court, respecting his unlawful removal from service without wages. It is to be appreciated that the Court below has struck down the order of termination of the official and has thus passed an order in his favour, by rather going too out of the way, even though silence has been maintained in respect of entitlement of the official to the back benefits, and thus the order in entirely is neither in favour of the employer, nor in favour of the employee.
3. Coming to the merits of the impugned order, it is to be borne in mind that the validity thereof has not been assailed by the establishment by filing a parallel appeal; and only the official has preferred an appeal, in laying claim to emoluments for the past period. A perusal of the record of the lower Court reveals that the employer had put in appearance and contest, over quite some time, and had then absented himself from the proceedings and been proceeded against ex parte, on 3-7-1985. Here the learned lower Court must be taken to have fallen in error in proceedings ex parte against the respondent. Mr. Nisar Ahmad Advocate had been appearing as counsel for the employer, respondent before the Labour Court, and on 3-7-1995 he had made the Court aware of the fact that he had no instructions (for further pursuit of the matter). On the same day, the learned Court passed an order, apparently in undue hurry proceedings ex parte against the respondent. In my considered view, the ends of justice and the interests of equity warranted that the respondent should have been informed as regards this unusual development, and only when in spite of service the respondent had failed to make appearance, either personally or through a duly-accredited agent or a legally-appointed counsel, ex parte proceeding could be ordered against him. The aforesaid order, dated 3-7-1995 thus was not sustainable in law and equity.
4. The learned lower Court as such was not justified in ordering exparte proceeding against the respondent and had in indecent haste and on the strength of no proper material and no valid premises come to the conclusion that Mr. Aamir Kamal was a workman. He had been appointed on 10-5-1993 as Business Executive with monthly salary of Rs.7,000 and, by no stretch of imagination, his claim to be a worker could be acknowledged or approved by the Court. Of course, the period of probation, as per appointment letter Exh.P.1, was only two months, but what was termed as "working relationship" between the parties was based on "Topworth Agency Agreement". It was an employment of contractual nature and did not in any way bring in its wake usual relationship of employer and employee, as understood in normal parlance and in accord with the intent and import of provisions of the Industrial Relations Ordinance, 1969 or the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Mr. Aamir Kamal was only an 'agent' (of the employer), who could even appoint co-opt with him.sub-agents. The employer had also taken up the plea, in the letter, dated 14-12-1993 (Exh.P.4/1), in response to the notice, dated 6-12-1993 served on him by the official (Exh.P.4), that there existed between the parties relationship of only a principal and an agent. Another notice (Exh.P.3) earlier served by the employee's Advocate on 11-11- 1993 was replied on 29-11-1993 (Exh.P.3/1), and it was maintained that no law could restrict or restrain right or discretiOn of the employer to get rid of an employee, if the latter's services were no longer required, or if the efficiency of the employee did not come up to the required standards.
Current performance of Mr. Amir Kamal was found to be not productive and he was placed in 'free lance category' on 18-8-1993 (letter, dated 18-8-1993 at page 93 of lower Court's file). It was observed in the termination letter, dated 1-10-1993 (Exh.P.2) that he had failed to introduce any new business for or introduce any new client to the company. This amounted to breach of terms of the agreement of employment, as declared in the letter, dated 14-12-1993 (Exh.P.4/1).
5. I had a mind to remit the case back to the Labour Court, with a direction to make a renewed attempt to effect 'service' upon the respondent, but on second thoughts I realized that such a bid would only be an exercise in futility as the service status of the appellant, keeping in view his designation, emoluments and nature of duty, could not be acknowledged to be that of a workman, and there would be no use asking the Labour Court to continue to proceed with the matter. Mere oral assertion of the official that he had no powers of hire and fire and that he was doing a manual job would not suffice to treat him as a worker.
6. Even if services of the appellants however had been terminated in an unlawful manner and he was of the conviction that he had a right to be retained in service, he could assail the validity of the act of the employer, by approaching the appropriate forum but certainly not a Labour Court, which plainly had no competence to deal with the matter in issue.
7. In the written reply submitted on 18-4-1994, in the lower Court, the respondent had stated that although Mr. Amir had been appointed by the Vice-President, in the subsequent meeting of the Board of Directors, held on 17-8-1993, resignation of the Vice-President had been accepted, and all powers of appointment of the employees had been delegated to the Manager Administration, who as such could proceed in the matter further in a competent manner. Mr Aamir Kamal could only be deemed to be an agent and not an employee, as commonly understood. In any case he could not be D regarded as a workman, and he could not invoke the aid of the Labour laws on his favour, by having recourse to a Labour Court. He was not performing I any skilled or unskilled manual or clerical work, involving physical labour.
8. In so far as claim to back benefits is concerned, the rule of law laid down in a number of 'authorities', including PLD 1992 SC 33, may be streamlined, the same being that back benefits do not automatically flow from an order of a workman's reinstatement, which would not necessarily entitle him to the emolument for the past period. In the course of arguments, Mr. Amir Kamal has stated before me that he had not made any bid to be on the rolls of the establishment, following Labour Court's order, dated 1-41995 rendered in his favour. It has not been asserted by him that he was keen to join service with the 'Empire Resources' but had not been permitted to do so. No contempt petition in that behalf has even been filed; and it cannot be 'taken for granted' that Mr. Amir Kamal had expressed keenness for and had made any visible effort to join the service, and such bid had determindly been foiled, exposing the employer to a penal action. Actually, I am driven to the belief that it was probably all a force and there was no longer in existence any concern by the name of 'Empire Resource', so that the appellant had evinced no apparent interest in his reappointment there. In the field of labour litigation this forum is entitled to achieve an equitable and realistic end, while bypassing the normal procedural provisions, as envisaged by section 25-A(5), Industrial Relations Ordinance. As such, I will not see eye to eye with the view point of the learned Labour Court and proceed to set aside the decision, dated 1-4-1995, in to