' This is an appeal under section 37(3), of the Industrial Relations Ordinance, 1969, against the order, dated 26th October, 1998, passed by the learned Presiding Officer, Labour Court No,3, Karachi, in the matter of Application No,149 of 1998 under section 25:A, read with section 51 of the I.R.O., 1969, whereby the said application was dismissed by the order, dated 26th October, 1998, as aforesaid, against which, this appeal has been filed.
2. From the facts on record, it appears that the appellant was employed as an Assistant, whose services were terminated w,e,f, 5-4-1997. The appellant gave a grievance notice to the respondent and then filed an application bearing No,34 of 1997 under section 25-A of I.R.O., 1969, which was allowed by the learned Presiding Officer, Labour Court No,3, Karachi, by his decision, dated 28th March, 1998, whereby the appellant was reinstated with full back benefits including two months' leave salary. It was further ordered that the back benefits be paid to the appellant within fifteen days from the said order.
3 It is noticeable that no appeal was filed against the said decision and so that order of the learned Labour Court No,3 became final.
4. The appellant, as alleged in the memo. of appeal before me, reported for duty on 6-4-1998, but he was not taken on duty and that he was informed through the Chowkidar that he will be given instructions at his residential address. It was further alleged that the appellant repeatedly reported for duty, but to no avail. The appellant, under the circumstances, decided to tender his resignation from the respondent's employment, which, he accordingly sent through registered A/D post on 22- 4-1998. The said resignation appears to have been received by the respondent on 30-4-1998. The respondent sent a reply to the said resignation by its letter on the same date i,e, 30-421998 alleging that, "we have already sent a Notice, dated 18-4-1998 through T.C.S. at your given address calling upon you to report for duty within 24 hours from the receipt of that Notice. The Notice was duly served but you did not report for duty levelling the charge of reporting of duty at our factory but you were prevented". The position was clarified by the respondent by their Notice, dated 18-4-1998 that the appellant never reported for duty and that he was making lame excuses to avoid the resumption from duty as ordered by the Court. His letter of resignation was, therefore, not accepted by the management, as the order of the Court is to be implemented by the respondent. The appellant was, therefore, again directed to contact the management. It was asserted further that the appellant never refused to implement the order of the Court. The appellant, then, filed the above application under section 25-A, read with section 51, of the I.R.O., 1969. The respondent filed a detailed reply statement. Besides the legal pleas the factual position was also replied in detail.
5. On 22-8-1998, an application, accompanied by an affidavit, was moved by the respondent praying for taking up first the two preliminary legal objections, raised in the reply statement. A notice was issued to the appellant of the said application which was heard on 19-9-1998 and an order was passed on the same date allowing the application of the respondent. The order, being short, is reproduced as under:--
"19-9-1998.
' Heard the learned Representative for the applicant and the learned Advocate for the respondent.
It is prayed by the respondent by this application that since there is no denial from the respondent side of agitating the orders of this Court passed in the grievance petition filed by the applicant the matter could be decided without going further in details and without leading evidence the matter could be disposed since the legal plea of any cause of action and not maintainability of the grievance petition is, therefore, let it be taken up first which may go to root cause of the case. Mr. M.M. Jeelani, has contended that this matter cannot be decided unless evidence recorded, and therefore, the application is not maintainable.
' I have heard the learned Advocates at length. The point of no cause of action and not maintainable could be decided without going into evidence to be recorded and to protest the matter since aim of the Courts and the spirit has been that a non-maintainable case without cause of action is to be buried at the earlier without wasting further time of the Court. Accordingly I allow the application of the respondent, until matter for arguments on the legal pleas. Announced in open Court.
(Sd.)
19-9-1998 P/Officer."
' No revision or appeal was filed against the said order by' the appellant. However, arguments, on the main application were heard whereby the learned Presiding Officer by his order, impugned in the above appeal, dismissed the main application.
6. Mr. Jeelani, learned counsel for the appellant submits that the learned Labour Court did not record any evidence and his main application under section 25-A, read with section 51 of the I.R.O., 1969 was dismissed. In reply to the said objection, Mr. Abdul Qadir, learned counsel for the respondent submits that in view of the order, dated 19-9-1998, the Court had already explained his view that no evidence was necessary to decide the merits of the main application itself. The objection, raised at this stage, is of no avail to the appellant.
7. Mr. Jeelani further submits that the controversy was whether appellant reported for duty, but was denied the opportunity, leading to his submission of resignation, dated 22-4-1998, but this submission is not supported by any document. On the other hand the plea is falsified by the very fact that the management had, even before submission of the resignation, sent him a letter, dated 18-4-1998, the receipt whereof has not been denied by him, with a copy sent to the Court itself, which is on record at pages 97--99 of the R&P. As last leg of his arguments, he submitted that he was ready to rejoin the respondent with immediate effect provided no penal action is taken against him. Mr. Qadir, in reply, submitted that this plea is not bona fide. He must have immediately reported for duty in view of the order passed by the learned Labour Court No,3, which has been unnecessarily impugned in this Tribunal.
8. I have read the whole order, impugned in this above appeal, with Mr. Jeelani and find that it is a reasonable, proper and legal order. It was, inter alia, observed by the learned Presiding Officer, that the applicant after getting orders of this Court changed his mind". I agree with this observation of the learned Presiding Officer and I am clear in my mind that the attitude, adopted by the appellant, was evasive and it was rightly held that he failed to report for duty. It was further observed by the learned Presiding Officer that," the respondents have claimed that they all along were ready to implement the order of the Court which was never refused. Resignation without resuming the duty and that too during the process of misconduct was a clear violation on his part. The applicant has not come with clean hands". It was further observed in the last para. of the order that "the respondents are ready to reinstate the applicant and to pay him the dues as back benefits, in those circumstances, it is futile exercise to proceed with the matter any more. The applicant has tendered his resignation before resuming the duty". I have no reason to take a different view in the matter. The appellant might have got some other job or a better offer and that is why he has submitted his resignation by post. He appeared to be no more interested in the resumption of duty.
9. The appeal is, therefore, without any force and is dismissed accordingly .
' Announced in open Court, this the 1st day of April, 1999.