1. ' The above Constitutional Petitions have been filed, wherein the order of the learned Sindh Labour Appellate Tribunal dated 5-5-1998 has been challenged whereby the learned Sindh Labour Appellate Tribunal allowed the back benefits to respondent No,1 in all the aforesaid petitions by modifying the order of the Labour Court which had ordered reinstatement of respondents No, I in all the aforesaid petitions but did not allow the back benefits on the ground that they were piece- rated workers. The petitioner feeling aggrieved and dissatisfied with the impugned order/decision of the Sindh Labour Appellate Tribunal have challenged the same by way of the aforesaid Constitutional Petition.
2. ' We have heard the arguments of Mr. Khurshid Ahmed Siddiqui, learned advocate appearing on behalf of the petitioners and Mr. Rafiullah, learned Advocate appearing on behalf of respondent No,1 in all the aforesaid petitions.
3. ' Mr. Khurshid Ahmed Siddiqui contended that the impugned order of the Sindh Labour Appellate Tribunal suffers from a legal flaw inasmuch as it would not be possible for an employer to determine as to what would have been earning of a piece-rated worker during the period when he was ousted from service. He further submitted that in view of the above, the order of the Sindh Labour Appellate Tribunal would appear to be defective and contrary to law whereas the order of the Labour Court refusing to grant back benefits on the ground that all respondents No,1 were piece-rated workers was in accordance with the provisions of law and ought to be restored. On the last date of hearing Mr. Khurshid Ahmed Siddiqui had sought time to produce authoritative pronouncement in support of his above contentions. He has referred us to several authorities of the Supreme Court as well as of the High Courts in Pakistan but none of them is relevant as in none of them the issue involved herein had been agitated or decided.
4. ' On the other hand, Mr. Rafiullah, learned Advocate appearing for respondent No,1 in all the aforesaid petitions submited that the Labour Court had committed illegality in not allowing back benefits to all the respondents No,1 on the ground that they were piece-rated workers. He further submitted that it was the right of a worker to be paid the back benefits if he had pleaded in his grievance petition that he had remained unemployed during the period of dismissal and had not earned anything then it was incumbent upon the Labour Court to allow back benefits in case if he was reinstated. Mr. Rafiullah further submitted that all the respondents No,1 in their grievance petitions as well as in their affidavits-in-evidence categorically mentioned that they have remained out of employment during the period of their dismissal and had not one any work for gain or earning and on such statement having been made, all the respondents No,1 were entitled to the back benefits unless the petitioner adduced evidence to prove to the contrary. This contention was not disputed by Mr. Khurshid Ahmed Siddiqui but his contention was that there was no material on record on the basis of which it could be held that all the respondents No,1 during their dismissal from service in the establishment of the petitioners had remained out of job and had not worked for gain. The contention of Mr. Khurshid Ahmed Siddiqui is not tenable in view of the assertions of all the respondents No,1 in their grievnace petitions as well as in their affidavits-in- evidence that during their period of dismissal they did not work anywhere for gain and had remained idle.
5. ' With regard to the contention as to whether a piece-rated worker would be entitled to the back benefits of the emoluments during the period he remained out of job from the service in the employer's establishment. -Mr. Rafiullah had drawn our attention to Standing Order 12(6) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, (hereinafter referred to as "the Ordinance of 1968") and submitted that a bare perusal of clause (6) of Standing Order 12 of the Ordinance, 1968 would be sufficient to resolve the controversy and to hold that a piece-rated worker would be entitled to the back benefits in accordance with the provisions of Standing Order 12(6) of the Ordinance, 1968. In order to appreciate the arguments advanced by Mr. Rafiullah and for a complete understanding of the issue, it will be appropriate to reproduce Standing Order 12(6) of the Ordinance, 1968 as under:-- "S.O. 12(6).--Where a workman resigns from service or his services are terminated by the employer, for any reason other than misconduct, he shall, in addition to any other benefit to which he may be entitled under this Ordinance or in accordance with the terms of his employment or any custom, usage or any settlement or an award of a Labour Court under the Industrial. Relations Ordinance, 1969 (XXIII of 1969), be paid gratuity equivalent to (twenty) days' wages, calculated on the basis of the (wages admissible to him in the last month of service if he is a fixed-rate workman or the highest pay drawn by him during the last twelve months if he is a piece-rated workman,) for every completed year of service or any part thereof in excess of six months: ' Provided that, where the employer has established a Provident Fund to which the workman is a contributor the contribution of the employer to which is not less than the contribution made by the workman, no such gratuity, shall be payable for the period during which such Provident Fund has been in existence."
6. ' A bare perusal of the above Standing Order would show that it deals with payments of gratuity to a workman, who had either resigned from service or his service was terminated by the employer for any reason other than misconduct. It provides a formula by which the gratuity payable to such a workman is to be calculated. According to this formula the gratuity would be payable equivalent to twenty days wages for every completed year of service or any part thereof in excess of six months. The twenty days' wages would be calculated on the basis of wages admissible to him in the last month of his service if he was a fixed-rated workman or the highest pay drawn by him during the last twelve months if he was on piece-rated workman. From the provisions of Standing Order 12(6) of the Ordinance of 1968 it is clear that for the purpose of calculating the wages of a piece-rated worker the guiding factor would be the highest pay drawn by him during the last twelve months. The provision of Standing Order 12(6) of the Ordinance of 1968 negates the contention of Mr. Khurshid Ahmed Siddiqui, the learned advocate for the petitioner that it would not be possible to determine the amount of salary if he was allowed the benefit of payment of salary/remuneration during the period he remained out of service as it would not be possible to determine the exact amount of salary/payment which he would have earned in each of the months during which he remained out of service in the petitioner's establishment. In our view the formula laid down in Standing Order 12(6) of the Ordinance of 1968 can be applied for determining the amount of the salary on the basis of which the back benefits can be calculated for allowing him back benefits. Such salary would be the highest salary which all respondents No,1 had received in the last 12 months of their service in the establishment of the petitioner. The petitioner would be required to pay them at the rate of the highest salary/emoluments earned by all the respondents No,1 during the last 12 months of their employment in the petitioner establishment for every month of the period during which they remained out of service of the petitioner.
7. ' Mr. Khurshid Ahmed Siddiqui submitted that the provision of Standing Order 12(6) of the Ordnance of 1968 related to determination of the salary for calculating the gratuity which would be payable to a workman who had either resigned or whose service was terminated by the employer on any reason other than misconduct and the same principle or formula could not be pressed into service for determining the average monthly salary for payment of the back benefits for the period when all the respondent No,1 remained out of employment/services of the petitioner's establishment. He further submitted that the power to grant back benefits could be exercised by the Labour Court while ordering reinstatement of a worker and if the Labour Court in ordering reinstatement of the worker did not allow him the back benefits then the Labour Appellate Tribunal would have no authority to modify the order of the Labour Court and allow back benefits. In support of this contention he placed reliance on the cases of (1) Qadeer Ahmed v. Punjab Labour Appellate Tribunal, Lahore and another, reported in PLD 1990 SC 787; and (2) Muhammad Bashir Ahmed and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore, reported in 1991 SCM R 2087.
8. ' With regard to the first contention of Mr. Khurshid Ahmed Siddiqui it is to be observed that, no doubt, basically Standing Order 12(6) of the Ordinance of 1968 deals with the payment of gratuity to a workman who had either resigned or was dismissed from service for any reason other than misconduct but at the same time it lays down a formula or a method for calculating the pay which a piece-rated worker would have earned during the peirod for which he remained out of employment/service. The issue involved in the present petitions is as to how the quantum of back benefits would be determined in case of a piece-rated worker. We are of the view that formula or the principle laid down in Standing Order 12(6) of the Ordinance of 1968 for determining the average pay for granting the back benefits can by way of analogy be applied or resorted to for the purpose of determining the amount of monthly salary/remuneration which all the respondents No,1 would have earned from the date of their termination/dismissal by the petitioner till the date of joining on the order of the Labour Court. Such salary/remuneration would be the highest salary earned by them during the last year of their service in the employment of the petitioner. We do not see any illegality or irregularity in applying the principle or the formula enumerated in Standing Order 12(6) of the Ordinance of 1968. We, therefore, hold that the arguments advanced by Mr. Khurshid Ahmed Siddiqui do not carry any weight and are ignored. The case-law referred to us by Mr. Khursheed Ahmed Siddiqui is of no assistance to him.
9. ' With regard to the second argument that it was only the power of Labour Court to allow the back benefits on ordering reinstatement of all the respondents No,1 in the service of the petitioner, it will be appropriate to refer to subsection (3) of section 38 of the Industrial Relations Ordinance, 1969 (hereinafter referred to as "the Ordinance of 1969"), which is as under:-- "38(3)--The Tribunal may, on appeal, confirm, set aside, vary or modify the award [or decision given under section 25-A] [or section 34 or a sentence passed under clause (c) of subsection (5) of section 35] and shall exercise all the powers conferred by this Ordinance on the Labour Court save as otherwise provided."
10. ' From a bare perusal of subsection (3) of section 38 of the Ordinance of 1969 it is to be noted that while conferring appellate powers on the Sindh Labour Appellate Tribunal, this subsection has clothed the Tribunal with all the powers conferred by the Ordinance of 1969 on the Labour Court.
11. The provision of subsection (3) of section 38 of the Ordinance of 1969 clearly negates this argument of Mr. Khurshid Ahmed Siddiqui inasmuch as he did not deny the power of the Labour Court to grant back benefit to a reinstated worker and when the Labour Court had such power then the Labour Appellate Tribunal could also exercise the same in view of section 38(3) of the Ordinance of 1969. We hold that the Sindh Labour Appellate Tribunal has the power to allow back benefits if on consideration of the facts and circumstances in the appeal before it, it was of the view that the worker had made out a case for allowing back benefits and the same was not rightly disallowed by the Labour Court. This contention of Mr. Khurshid Ahmed Sidiqui is also not sustainable on another ground that when an order is impugned by way of an appeal then the entire case becomes open and the Appellate Court has the authority to examine each and every issue and give its decision/finding on the basis of the evidence, facts and circumstances of the case and according to prevailing law and in doing so it has the power to review, vary, reverse or modify the order of the forum below. Cases of (i) The Province of East Pakistan v. Muhammad Hossain Mia, reported in PLD 1965 SC 1 and (ii) Mst. Khurshid Begum and others v. Ahmad Bakhsh and others, reported in PLD 1985 SC 405 are referred to in support of the above proposition.
12. ' We have not the least doubt in our mind that the principle/formula laid down in Standing Order 12(6) of the Ordinance of 1968 can be pressed into service for determining the average monthly salary/remuneration of all the respondents No,1 and their monthly salary/remuneration is to be determined on the basis of the highest salary/remuneration which they had received during the last 12 months of their service in the establishment of the petitioner which would provide the basis for calculating the back benefits for the period they remained out of service in the petitioner's establishment.
13. ' Upon the above discussion we find that these Constitutional Petitions are without any substance and do not merit consideration. Accordingly, they stand dismissed in limine together with the miscellaneous applications pending therein.