1970 PLP 334 (PLC)

Mahboob Rizvi for Respondent No.

1. Date of hearing: 26th March 1970. This is an appeal against an order of the learned Chairman of the Second West Pakistan Labour Court, Karachi, dated 22nd November 1969. The impugned order was passed on an applica tion under section 1 (2) of the West Pakistan Industrial Disputes t Ordinance, 1968 (hereinafter called the repealed Ordinance). The learned Court very rightly came to the conclusion that there was All no violation of section 37 of the repealed Ordinance and, therefore, the application under section 38 of the repealed Ordinance was not maintainable. The facts necessary for the disposal of this see appeal briefly put are these.

2. On 3rd August 1968, the First West Pakistan Industrial Court, Karachi, granted permission to the respondent to dismiss the appellant. The appellant preferred an appeal against the said order to the Tribunal, which was dismissed on 11th November 1968. Thereafter, the appellant applied to the authority under the Payment of Wages Act for payment of subsistence allowance from 16th May 1968 to 15th December 1968. The authority under the Payment of Wages Act accepted the demand of the appellant by its order dated 21st June 1969. On 8th July 1969, the District Manager, it appears, wanted to regularise his records and passed the following order:‑ "Conductor, Allah Bux son of Faiz Muhammad should be treated under suspension up~to 15‑12‑1968 (A. N.) and he is therefore, allowed subsistence allowance from 4‑8‑1968 to 15‑12‑1968. He should be treated .as dismissed from service with effect from 16‑12‑1968 (F. N.)."

3. The learned Representative, Mr. Wasiullah Qureshi, has challenged the order of the District Manager dated 8th July 1969, reproduced above, on two grounds, namely, (1) that the District Manager could not dismiss the appellant on 8th July 1969, with retrospective effect from 16th December 1968, and (2) that the order dated 8th July 1969, having been communicated to the appellant on 15th July 1969, he should be treated to be on duty after 15th July 1969.

4. The short question is as to whether there is any violation of section 37 of the repealed Ordinance. Section 37 of the repealed Ordinance makes provision for safeguard of the service of the workmen during the pendency of conciliation proceedings or the dispute before the Court or the Tribunal. In short, a workman cannot be dismissed without the permission of the Court or the Tribunal, as the case may be. In this case, admittedly, permission was granted by the Industrial Court and the same was maintained by the Tribunal. The appellant cannot be said to have been dismissed in violation of the provision of section 37 of the repealed Ordinance, so as to attract the provision of section 38 of the repealed Ordinance.

5. It is true an employer cannot dismiss an employee under the Ordinance with retrospective effect. I need not elaborate this point. In the present case, the appellant has not been dismissed with retrospective effect. He was in fact dismissed on 3rd August 1968. The order, however, could not be communicated to him for some time. The appellant, during the pendency of the application under section 38 of the repealed Ordinance, did come to know that he had been dismissed from service on 3rd was only to regularise the recorded that to 15th December 1968. It was only to regularise the record that the District Manager passed another, which was not necessary.

6. The Industrial Court could not grant a declaration under section 38 of the repealed Ordinance that the appellant should be treated to be on duty after 15th July 1969. In an application under section 38 of the repealed Ordinance, the Court was only, concerned to find out if there was any violation of the provision of section 37 of the repealed Ordinance. In the absence of any violation, the question of giving a declaration that the appellant was in service on 15th July 1969, did not arise.

7. For the reasons given above, I would dismiss the appeal.