DECISION ' This is an appeal by one Abdul Majeed son of Abdul Satter presently back in the employment of the respondent Messrs Paramount Silk Mills, Mauripur Road, Karachi and it is directed against an order of the Third Sind Labour Court at Karachi rejecting the appellant's application under section 25-A of the I. R.
0. As being premature. The learned lower Court reached the conclusion that the respondent had produced enough proof to the effect that the appellant/applicant had failed to prove his alleged removal and, therefore, his application under section 25-A of the I. R.
0. Was premature. However, the learned Labour Court concluded its order with these words :- "He applicant may resume duty if he so likes."
' It is stated at the bar by the respondent's Representative that the appellant in view of this order of the lower Court resumed service with the respondent's mills on the 8th of September, 1977.
2. The brief facts giving rise to this matter am that the appellant entered the service of the respondent's mill on 12th of March, 1974 as a supervisor. He was removed from service on the 23rd of April, 1976 against which order he filed his first application under section 25-A of the I. R.
0. Before the Third Labour Court which was accepted and his re-instatement was ordered with full back benefits including the dues claimed in the application. The respondent's mill preferred an appeal against this order and my learned predecessor while rejecting the appeal so far as the re- instatement was concerned allowed it in part reducing the amount of back benefits that had been granted to the appellant. It appears that the appellant then approached the Payment of Wages Authority for his back dues and his case is that notice from this Authority of this application was served on the respondents on the 18th of December, 1976 on which day the appellant when he presented himself for duty was turned away from the mills gate. Accordingly the appellant after usual grievance notice filed his present application under section 25-A of I. R.
0. Before the Sind Labour Court No, III on 25th January, 1977.
3. The respondents in their rejoinder have characterised this application of the appellant under section 25,A of the I. R. O., 1969 as being misconceived, unwarranted and not maintainable in law inasmuch as the same was Sled while disciplinary proceedings were pending against the appellant. The respondent pointed out that the appellant was joined a charge-sheet on 10-12-1976 for remaining absent from duty for a number of days without any prior permission or leave from the Management. This charge-sheet was addressed by the respondent on the postal address duly supplied to them by the appellant.
4. I have heard Mr. Ashraf Hussain Rizvi appearing on behalf of the appellant at very great length.
His main contention is that the charge-sheet alleged by the respondent to have been addressed to his client on the postal address supplied by his client was at no time received by his client as his client had changed his place of residence and this charge-sheet was despatched to his former address. Mr. Rizvi has relied upon the case reported in 1974 PLC 205 wherein it has been held that where a charge-sheet has been returned for non-delivery it is the duty of the Management to publish the said charge-sheet in the newspapers of the area where the delinquent resides. Mr. Rini has also raised other contentions but as they are not material for the decision of this appeal it is pointless to burden this judgment with them.
5. I have heard Mr. Khursheed Ahmed Siddiqui on behalf of the respondent. He has submitted that the short point for decision in this matter is whether the appellant was turned away from the gate of the mill on 18-12-1976 or whether he deliberately absented himself from disciplinary proceedings instituted by the Management against him. Mr. Siddiqui points out that the charge sheet dated 10- 12-1976 was addressed to the appellant on the postal address supplied by him and that the appellant has admitted this in cross-examination in these words :- "I see one closed envelope along with postal receipt and A/D slip and say that it bears my correct address. I produce it as &he. D/I, 1-A & 1-B. I also produce other similar envelope with postal receipt and A/D slip as D/2, 2-A and 2-B. I see yet another envelope with postal receipt and A/D slip and say it also bears my correct and subsequently changed address as Exhs. D/3, 3-A and 3-B."
6. Mr. Siddiqui further submitted that the appellant has been absenting himself from duty in the mill as he has started a business of his own and in support of this submission he relied upon the admission made in Court by one Darya Khan son of Khadi Khan, the only witness produced by the appellant in the lower Court wherein Darya Khan states :- "The applicant is at present running his own shop of electricity etc. At Muhajir Camp perhaps since more than six months. The applicant himself told me that he had been removed by the respondents, otherwise I do not know."
7. It seems to me, after having carefully perused the record of the Labour Court in this matter and considered the arguments of the learned Representatives, that no fault can be found with the order of the lower Court in rejecting the appellant's application under section 25-A of the I. R.
0. As being premature. The appellant in this order was allowed to resume his duty with the mill and Mr. Siddiqui states at the bar that he has done so on the 8th September, 1977. Therefore, now, that the appellant is bask in the service of the respondent mill, the disciplinary proceedings instituted against him and, which I am told, are now pending, should first be disposed of before an application under section 25.A can be resorted to. Mr. Siddiqui has cited before me a judgment of Mr. Inamullah Khan reported in 1975 PLC 575 wherein his Lordship stated that :- "The holding of an enquiry is a managerial function and the filing of application under section 25-A the moment the charge-sheet is given by an employer is premature and undesirable."
' Mr. Siddiqui referred to a second case reported in 1973 PLC 57 wherein at page 59 the Chairman, First Sind Labour Court (as it then was), held :- "Since final action has not been taken by the authorities concerned against the applicant for his alleged misconduct, I consider this application to be premature and consequently I find no force in this application."
8. In the final analysis, then, I am of the view that inasmuch as the appellant has resumed his service with the respondent mills and is facing disciplinary proceedings, his application under section 25-A of the I.R.O. Was rightly dismissed by the Third Sind Labour Court, Karachi, as being premature.