1981 PLP 178 (PLC)

Aziz Manga for Appellant. Ch. M. Maarif for Respondent. Date of hearing : 9th March, 1980. The respondent, who was employed in the appellant society as an Assistant Accountant, was served with a show‑cause notice, dated 7th May, 1978. containing charges of misconduct against him. The respon dent's services were thereafter terminated with effect from 18th May, 1978, admittedly without holding an inquiry or giving him a show‑cause notice. The respondent, accordingly, challenged the termination of his services by way of a grievance petition before the learned second Labour Court. Preliminary objections were raised by the appellant society to the maintain ability of the grievance petition of the respondent on the grounds that the Standing Orders were not applicable to the appellant society as it was a charitable association and that further the respondent was not a workman for the purposes of the Standing Orders as he was incharge of the establishment of the appellant society. The learned Labour Court, by its ‑order, dated 24th May, 1979, rejected these legal objections. Against this decision, the appellant society preferred an appeal to this Tribunal, being Appeal No. KAR‑293 of 1979. The said appeal was dismissed on 14th July, 1979 due to default of the appellants society and non‑prosecution. No application for restoration of the said appeal was preferred. The case accordingly proceeded before the learned Labour Court which has allowed the grievance petition of the respondent and directed the appellant society to reinstate him in service with full back benefits. Against this decision, the appellant society has once again come up in appeal to this Tribunal.

2. Mr. Aziz Manga, the learned counsel for the appellant society, assailed the impugned orders of the learned Labour Court on the grounds :‑ (i) that the Standing Orders are not applicable to the appellant society, which is a charitable organization, and hence the respondent's grievance petition against the termination of his services was not maintainable ; (ii) that since the respondent was incharge of the establishment of the appellant society, he does not fall within the definition of workman as given in the Standing Orders and hence he is not entitled to file a grievance petition ; and (iii) that the respondent having admittedly taken up employment else where, after his services were terminated by the appellant society, is not entitled to back benefits.

3. Now, as regards the first two contentions of the learned counsel are concerned, they were the subject‑matter of Appeal No. KAR‑293 of 1979, which was dismissed for default and non‑prosecution on 19th July, 1979, as already stated. The dismissal orders have attained finality as no restoration application was filed. As such, it is not competent for the appellant society to re‑agitate the issues which were concluded by the decision in the said appeal. The fact that the appeal was dismissed it default and non‑prosecution and no orders on merits were passed makes no difference.

4. There remains the third contention raised by Mr. Aziz Manga, namely, the admitted position that the respondent was re‑employed else where. It has been admitted by respondent Rehmatullah in his cross -examination that after his removal from service by the appellant society he had joined service with the Kutiyana Society in the month of September, 1978. As such, the respondent is not entitled to back benefits in respect of a period that he was gainfully employed elsewhere.

5. The upshot of the above discussion is that I would uphold the decision of the learned Labour Court, directing the appellant society to reinstate the respondent in service, since admittedly the services of the respondent were terminated without holding any inquiry or giving him show‑cause notice and the contentions of the appellant society that the Standing Orders are not applicable to it or that the respondent is not workman for the purposes of Standing Orders cannot now be entertained. However, I would modify the orders of the learned Labour Court regarding the grant of back benefits to the respondent and would direct that he is not entitled to any back benefits during the period that he was gainfully employed else where. The appeal is disposed of accordingly. Order accordingly.