1993 PLP 404 (PLC)

2. It was alleged by the petitioner that he had been in the employ of the Club as a Waiter since 1981, and on 10‑7‑19990 was directed by the Secretary to submit a fresh application for the post of the watchman, and he was duly given this job as well. It was on the 29th of October, 1990 when he had submitted an, application for confirmation in the service, which had greatly annoyed the respondent that his services came to be terminated verbally on 12‑11‑1990. The same day he had sent a grievance notice and later filed the petition.

3. The version as furnished by the respondent in the Written Reply was that the petitioner had been in their employee as a Waiter as alleged, but his services had been terminated on 26‑7‑1984. He had turned up in December, 1984 and collected all his dues in full on 26‑12‑1984. The relevant papers in that connection were also produced alongwith the Written Reply as Annexures A‑1 to A‑

3. It was further urged that to beef up the security, they needed some Chowkidars temporarily, for which they had duly advertised in the papers. The petitioner was one of the applicants and because he had earlier worked with the Club, he was given preference and selected. However as it was found later on that the Club actually did not need his services any more, and because he was a temporary hand, he was discharged with effect from 17‑11‑1990.

4. The petitioner had appeared as his own witness and Mr. Amjad Rabbani the incoming Secretary of the Club appeared on behalf of the respondent. ,

5. The Labour Court for the reasons given but it, ordered reinstatement with full back benefits.

6. The assertion of the respondent that he was appointed as a Chowkidar in addition to his employment as a waiter is simply unimaginable. The duties of a waiter are of a demanding nature, and for long hours at a stretch. Same would be the case with the duties of a watchman. The respondent simply could not cope up with alleged dual charges. Such an atrocious claim can hardly pass muster in the premier Club, not only of the town, but of the country. The relevant papers in connection with his removal from his service in 1984 have been put on the record, alongwith the payment made to the respondent for the outstanding dues in December, 1984. There is no reason to look askance at what Mr. Rabbani had to say in regard to the ' fresh appointment of the respondent as a Chowkidar in 1990.

7. There is however nothing to indicate from the advertisement in the daily `Jang' dated 11‑5‑1990 that the Chowkidars were to be appointed on a temporary basis. It could be explained by the production of the letter of appointment which has not been done. As to be found in clause (2) of the Standing Order 2‑A of the Standing Orders Ordinance, every workman at the time of his appointment, transfer or promotion shall be provided with an order in writing showing the terms and conditions of his service. Admittedly the other persons appointed contemporaneously with the respondent are still in service. At any rate Mr. Muhammad Sabir learned counsel for the appellant did not support this unceremonious discharge of the‑respondent.

8. The contentions raised by him were two‑fold: that the grievance notice was premature and not being a notice in the eye of law the petition would be incompetent. The second contention was that the respondent being a watchman did not fall in the category of the workman and therefore the petition would not lie on this ground as well.

9. In support of the first contention he relied on the cases of Ghulam Siddique v. Premier Tobacco Industries Limited 1979 PLC 227; Mureed Hussain v. Manager Polypropylane Product Ltd., Karachi 1979 PLC 490; Muneer Ahmed v. District Manager, Karachi Transport Corporation 1992 PLC 974.

10. In the case of Ghulam Siddique admittedly there was no grievance notice served after the termination. In the case of Mureed Hussain, the notice in the petition had been filed even before the service of the charge‑sheet or the actual order, and in the last case referred to above, the grievance notice was given on removal from employment verbally, but later on a charge‑sheet had been given and dismissal had followed.

11. All these three cases will therefore be distinguishable. However, they are not relevant otherwise too, because admittedly in this case the grievance notice was received by the appellant on 24‑11‑1990 which is certainly after the date of discharge as asserted by the appellant. The fact that it bears the date of the 12th of November will be neither here nor there.

12. As regards the second contention that the Chowkidars do not belong to the class of the workmen the matter stands concluded by the judgment of the Supreme Court (see Security Papers Limited v. Sindh Labour Appellate Tribunal and another PLD 1988 Supreme Court 180).

13. The third contention raised by Mr. Muhammad Sabir that the respondent was not entitled to the back benefits must however prevail, as admittedly there was no assertion during the proceedings before the Labour Court in writing or verbally, that the respondent was jobless after his services had been terminated by the appellant. As the law stands without such an assertion it is not open to a Court to award back benefits to a petitioner. Even Mr. Siddique Mirza conceded this position. I will, therefore, vacate this part of the order.

14. With this modification the appeal stands dismissed. Orders accordingly. H.B.T./2118/Lb.S??????????????????????????????????????????????????????????????????? ?????????? Order accordingly.