1989 PLP 848 (PLC)

1972 P L C 5 ref. Khalil‑ur‑Rehman for Applicant. Wasi Ahmed for Respondent. This decision will dispose of abovementioned grievance application filed under section 25‑A of the I.R.O., 1969 on 3‑8‑1988 whereby the petitioner h prayed to be declared as a permanent worker, for payment of consequential difference of emoluments as a permanent worker and also for payment of back benefits on account of his forced unemployment.

2. Briefly, the case of the petitioner is that he was permanent workman working as Helper since 2‑8‑1980 but on 2‑7‑1988 he was gate‑stopped a~ informed by one Hassan Mustafa that his service was terminated. It is contend that no order of termination of service was served upon the petitioner as such sent grievance notice on 5‑7‑1988 but the same was not replied. Accordingly, the petitioner alleging illegal and unwarranted violation of Standing Order Ordinance filed the instant application.

3. Whereas, the respondent have resisted this application through their reply statement contending that section 25‑A of the I.R.O., 1969 by itself does not empower the Court to grant the relief claimed until the right infringed shown to have been secured or guaranteed under any particular law, settlement or award and that the applicant has not acquired any right of a permanent worker because he had worked only for some period as a temporary worker on daily wage basis. They have also denied that service of applicant was terminated either verbally or in writing on 5‑7‑1988 and, therefore, his grievance petition is liable to be dismissed.

4. In his support, the applicant filed his affidavit in evidence, whereas respondent have filed affidavit in evidence of Hassan Mustafa, one of their executive. Both the abovementioned witnesses were duly cross‑examined. After going through the written arguments submitted by the learned representative for the respondent and after hearing the learned representative for applicant, and the record, my finding is as under.

5. Before proceeding further, it is to be examined whether applicant had given the grievance notice to respect of his prayer in the instant grievance petition or not. In this connection, it is seen, that the only grievance cited in the grievance notice is that he was not allowed to resume duty on 2‑7‑1988 and was informed by Hassan Mustafa that his service was terminated without anything in writing and, therefore, he has requested for withdrawal of such verbal order of termination. Whereas, he has prayed as mentioned above to be declared as a permanent A worker, for payment of consequential difference in emolument as a permanent worker which as would appear are not the subject‑matter of the grievance notice and, therefore, this Court is devoid of jurisdiction to decide such dispute as has been held in P L D 1975 Karachi page 716.

6. Then comes the relief of payment of back benefits to the applicant and in respect whereof, the learned representative for respondent contended that the same cannot be allowed for the reason that there is no prayer for reinstatement in service and in this connection cited 197'2 P L C page 5 (placitum‑D) which reads as under:‑‑ "Industrial dispute‑‑Relief‑‑Relief neither prayed for in application to Court nor asked for in statement before Court‑‑Cannot be granted by the Court."

7. In order to examine the above contention, reference will have to be made to the evidence which shows that petitioner in his affidavit in evidence has adopted all the averments of his grievance application and has denied the pleas raised by the respondent. He has also produced various orders from Exhs. A/1 to A/8 showing that he was appointed for short periods and then that period was continued by separate orders. Then in the cross‑examination R.W. Hassan Mustafa has admitted that applicant was in service upto 30‑8‑1988. He has admitted that no order of termination of service was issued and has also said that, "we had not issued any show‑cause notice against the petitioner on account of his desertion from duty. I do not know whether any domestic enquiry was not held against the petitioner." This shows that the petitioner was supposed to be in service w.e.f. 30‑8‑1988 and that no order terminating him from service was issued although the management seems to have the grievance that the applicant had deserted from duty and that they had also not held any domestic enquiry.

8. Under these circumstances, it is held that the termination of service of applicant by verbal order is illegal. Now the question remains whether applicant can be granted the relief of reinstatement. In this connection, reference is again made to the grievance notice wherein applicant has prayed for withdrawal of verbal order of termination and permission to perform the duty. He has also stated in cross‑examination by the learned representative for respondent that, and also reinstate me in service. Accordingly, keeping in view the principle laid down in 1972 P L C page 5, the applicant is allowed the relief of I reinstatement in service. He is also allowed the relief of back benefits because is has not been shown that applicant was gainfully employed after his termination from service. Consequently, applicant is granted the relief of reinstatement with full back benefits, and this application is allowed to that extent only. Respondents are directed to reinstate the applicant in service within seven days from the date of this order. H.B.T./1390/Lb. S Petition accepted.