' This appeal, under section 37(3) of the Industrial Relations Ordinance, 1969, is directed against a decision, dated 19-7-1999, passed by the learned Sindh Labour Court No,3 at Karachi in Grievance Application No,216 of 1998 under section 25-A of I.R.O., 1969, allowing the grievance petition of the respondent holding that the order of terminating the service of the respondent is illegal and directing that he be reinstated in service with back benefits.
2. The facts, giving rise to the above appeal, are that the respondent was employed by the appellant in the capacity of Loader w,e,f, 24-11-1997 for a period which does not exceed nine months on purely temporary basis by appointment letter, annexure A/2. The services of the respondent were terminated strictly in accordance with the terms and conditions of the appointment letter, dated 12th July, 1998 (Annexure A/3). It is submitted by the learned counsel for the appellant that the respondent was not legally entitled for any notice pay by virtue of his terms and conditions of the appointment letter, but the appellant, as a gesture of goodwill, gave him one month's pay in lieu of notice. The respondent, being aggrieved of his termination, filed a grievance petition before the Third Sindh Labour Court at Karachi for reinstatement with back benefits which was allowed, as referred to above.
3. It appears that there were in all, nine applicants and one of the applicants namely Mamroz Khan, by consent of the parties, was cross-examined for and on behalf of the respondent as well.
4. Mr. Jahangir, learned counsel for the appellant, referring to para.6 of the memo. Of appeal, submits that nine workers (out of sixteen who were removed from the factory being seasonal) filed grievance petition, seven of them withdrew from the Court, on the undertaking given by the factory that they will be taken back when the factory restarts and so they were all taken back with no back benefits, as agreed between them and the factory. He further submits that he has taken back the respondent also in the factory as per order of the Court as well, but no back benefits were paid to him. He invited my attention to the cross-examination of the respondent wherein he, specifically, stated that," I am ready to work on the temporary job at the start of the session. I can withdraw the case if I am taken back on duty on temporary basis. I would not claim the arrears". On the basis of this statement of the respondent, in the cross-examination, the factory immediately issued letter for -taking him back and asking him to report for duty, but he failed.
5. Mr. Jahangir further submits that all the workers have resumed their duty but the respondent backed out from his commitment. It is further submitted by him that the appellant's Manager Human Resources Mr. Muhammad Mehmood Ajinal Khan, appeared and produced oral as well as documentary evidence, which the respondent failed to rebut. Mr. Jahangir further submitted that the respondent did not say a word about the back benefits in his affidavit or cross-examination. He, however, stated in the prayer clause (only) that, "this Hon'ble Court be pleased to order reinstatement of the applicant in service and continuity and wages for the period of forced and unlawful unemployment".
6. The order, impugned before me relating to reinstatement has already been complied with. So far the back benefits there are a number of authorities of the Hon'ble Supreme Court, reported in 1991 SCM R 2087, 1992 SCM R 2169, PLD 1969 SC 591 and 1991 SCM R 2087 that back benefit was not to be granted in routine. There is no evidence led by the respondent that he remained without a job. In any case, the appellant factory is seasonal, which aspect was not considered at all by the learned Labour Court. Therefore, I do not think it to be a fit case for grant of back benefits.
7. Mr. Lodhi for the respondent argues that Since the appointment was made for nine months, the respondent became permanent employee automatically. Mr. Jahangir relied on a D.B. Ruling of the Sindh High Court given by Mr. Mamoon Kazi and Ahmed Yar Khan, JJ., reported as Metro Garments Industries, Karachi v. Sindh Labour Appellate Tribunal, Karachi and 2 others (1993 PLC 303) (relevant portion appearing at page 305) wherein it has been held that, "if nature of work for which employee was employed, was temporary for a limited period, then even if employee had worked for more than nine months; he would not be classified as a permanent workman". The assertion of Mr. Lodhi is belied by the very fact that the factory, being a seasonal, the respondent was appointed for a fixed period. In the written statement, filed by the appellant against the respondent, it was asserted that the respondent was employed in the capacity of Loader on purely temporary basis only for a period of nine months. There is no assertion in the body of the application that he was unemployed. It was 8 only in the prayer clause that he begged for back benefits. In the cross- examination, to Mr. Jahangir for the appellant herein. Namroz Khan, speaking for himself as well as other applicants on 24-12-1998 clearly admitted that. "I was employed for 9 months only". "I was served with termination letter, which I received by registered post", "the respondent management had promised to give us one month pay is lieu of notice period". He further stated in the cross- examination that. "I am ready to work on the temporary job at the start of the session. I can withdraw the case if I am taken back on duty on temporary basis. I would not claim the arrears".
This cross-examination was adopted on 17-2-1999, as consented to by the appellant's counsel, as written on the top of the cross-examination in Application No,216 of 1998 (Anwer Zeb v. Coca Cola Beverages), There is a list of 25 persons, whose services were terminated as the factory works in the season only. The appellant's Manager Human Resources filed his affidavit in evidence, who was cross-examined by. Mr. S.P. Lodhi, Representative for the respondent herein, but nothing could be extracted from him in support of the respondent. At the end, a suggestion was given to the witness, but he replied in negative that, "the nature of work of the applicant was of permanent nature" and "it was only a seasonal work". In view of the observation of the Hon'ble High Court and the evidence on record, the point does not require any further consideration.
8. For the above discussion, I allow the appeal and set aside the impugned order.
9. In view of the statement of Mr. Jahangir, the production increases during Ramadan. It is therefore, ordered that they will re-employ the respondent from today the 18th November, 1999 on the same terms and conditions on which he was employed previously, but with no back benefits.
' Announced in open Court, this 18th November, 1999.