1988 PLP 519 (PLC)

‑‑‑Ss.25‑A & 38(3)‑‑Limitation Act (IX of 1908), S.14‑‑Grievance petition‑ ‑Limitation‑‑Condonation of delay‑‑Discretion of Labour Court‑‑Delay occurring due to delayed second grievance notice‑ Previous grievance petition found valid according to changed view of Labour Appellate Tribunal‑‑Petitioner in circumstances, held, should not be made to suffer for earlier view taken by Appellate Tribunal which was, subsequently changed‑‑Held: there was no scope to interfere in appeal with discretion exercised by Labour Court in condoning delay with regard to fresh grievance notice. (c) Industrial Relations Ordinance (XXIII of 1969)‑‑ ‑‑‑Ss.25‑A g 38(3)‑‑Grievance petition against removal from service‑ l:e‑instatement‑‑Back benefits‑‑By re‑instatement petitioner workman is to be put in same position in which he was at time of removal‑ Workman after removal, if earning some income, same is to be deducted from total back benefits‑‑Workman remaining employed elsewhere for some period during removal and re‑instatement‑‑Labour Court allowing back benefits minus period of such employment‑‑Amount earned, held, is to be deducted and not the period of employment elsewhere‑‑Order of Labour Court modified by Appellate Tribunal accordingly. H.R. Haider for Appellant. Respondent in person. Date of hearing: 18th February, 1987. The appeal captioned above challenges the decision dated 9‑10‑1986 recorded by the learned Presiding Officer, Punjab Labour Court No.4, Faisalabad, whereby the grievance petition of the respondent brought against the order of his termination from service was accepted with back benefits minus the period from 14‑1‑1983 to 11‑3‑1986 during which he had remained employed somewhere else and minutes the amount which the respondent received under protest.

2. The services of the respondent were terminated by way of retrenchment after he was charge sheeted and an inquiry held against him. Previously, the grievance petition of the respondents was dismissed on the ground that the grievance notice had not been sent to the appointing authority. The order was confirmed in the appeal by my learned predecessor. The respondent after the service of fresh grievance notice brought another grievance petition. The petition was again dismissed vide order dated 1‑2‑1982 on the ground that the respondent was not covered by the definition of workman given either in the Industrial Relations Ordinance, 1969 or the Standing Orders Ordinance, 1968. In appeal the order was set aside holding that the question had already been decided in favour of the respondent previously and, therefore, could not be re opened. The case was remanded. The appellant raised a question in the written statement that the second grievance notice was time‑barred and thus the petition based on it as well was time‑barred. The respondent had made an application for condonation of delay. The learned lower Court has condoned the delay. Without raising any such objection in the written statement, evidence was led to the effect that the respondent had received dues in full and final satisfaction of the claim, therefore, he was no longer an aggrieved person and the petition was liable to be dismissed on this score. A letter sent to the respondent in this respect was sought to be brought on the record but the learned lower Court refused on the ground that the author had not been examined. The prayer was made to the learned lower Court for calling the officer who had sent the letter but the prayer was disallowed.

3. Before me only two points have been argued. One is that since the respondent admitted in his statement that he had received the draft of Rs.4,213, he was estopped from continuing with the case and the second that the second grievance notice and the grievance petition were time‑barred. In his statement no doubt the respondent admitted the receipt of the draft of Rs.4,213 but he also stated that he had received the same under protest and had gone to the extent of threatening the appellant for moving the Court to proceed against him for contempt of Court. The learned lower Court on this ground has held that the rule of estoppel did not operate since the draft was received under protest. Since no miscellaneous application was made to the effect that the respondent was estopped from continuing with the grievance petition on account of receiving the dues in full and final satisfaction of his claim, therefore, the learned lower Court rightly disallowed the evidence on the point. No doubt, the learned lower Court has not given this reason for rejection the prayer but if such an evidence had been allowed and the decision had been given against the respondent, he would have been condemned unheard. The learned counsel for the respondent wanted to produce copy of the letter alleged to have been sent to the respondent after the respondent had closed his case. If any letter had been sent to the respondent, such a question could be put to him in cross‑examination and he could be asked to produce the said letter. If an application had been given in this respect, the respondent would have an opportunity to give reply to it and to produce evidence to the effect that he had protested against the sending of the draft. The respondent has while arguing the case shown the draft sent to him by the appellant, which means that he has not yet got it encashed. Merely receiving the draft even otherwise was not sufficient to deprive him from challenging the order of removal from service.

4. So far as the question of limitation is concerned, it was the discretion of the learned lower Court to condone the delay under section 14 of the Limitation Act. The reason given for condonation of delay no doubt does not appear to be correct but in the circumstances that the previous view of this Tribunal to the effect that the grievance B notice could be served upon the appointing authority only stands changed by consistently holding that the grievance notice can be given to any officer who falls within the definition of employer and who has some control over the employee concerned the delay was considerable. Notice was sent to the General Manager who is covered by the definition of employer and exercises control over the establishment in the capacity of the officer held by him. So even the previous notice was legal and competent. The respondent should not be made to suffer for a view taken by this Tribunal which afterwards was changed. So in these circumstances there is no scope to interfere with the discretion exercised by the learned lower Court in condoning the delay with regard to the fresh grievance notice.

5. One more point has also been raised before me which is that the period for which the respondent remained employed elsewhere has been wrongly excluded. The learned counsel for the appellant says that not the period for which the respondent remained employed elsewhere but the amount which he earned was to be adjusted in the back benefits by way of set off. This argument is not devoid of force. By reinstating the worker is to be put in the same position in which he was at the time of removal. If such a worker has after his removal from service earned some income, the same is to be deducted from the total back benefits, to which he is entitled. Needless to say that back benefits are allowed to a worker not by way of punishment to the employer for wrongly removing him from service but in order to put the worker in the same position in which he was. But for the order of removal from service whatever the respondent would have earned from the appellant, he is to be allowed the same minus what he has earned from somewhere else.

6. As a result, the appeal is partly accepted and modifying the impugned decision of the learned lower Court, it is directed that the respondent is entitled to back benefits minus the amount of the draft received by him and whatever he earned somewhere else after the date of removal from service upto the date of reinstatement. Since there is no evidence about the actual earnings of the respondent, no definite amount can be determined at this stage. A. E. /322/Lb.P Appeal partly accepted.