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Appeal No. 380 of 1.974, decided on 8th January 1975.

---Ss. 25-A & 36-D read with Limitation Act (IX of 1908), S. 5 Limitation in respect of application under S. 25-A of Industrial Relations Ordinance, 1969-Question not raised its Junior Labour Court but raised only in appeal under S. 6-D-Delay, in circumstances, held, had been condoned by Junior Labour Court.

-- Termination of service-Workman due to sickness remaining on leave for 289 days within period of 333 dais and requesting for further one month's leave-Service terminated after payment of one month's salary in lieu of notice, gratuity and other dues Termination simplicitor---Not dismissal on account of misconduct-Cannot be interfered with by Labour Relations Ordinance (XXIII of 1969), S. 25-A read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1969), S. Os. 12 & 15.

1968 L L C 494 rel.

Javaid Altaf for Appellant.

Abdul Hakeem Sahota for Respondent.

The respondent, Muhammad ,Anwar Khan was removed from service by his employer, Lipton Pakistan Limited. On 28th August 1974 he filed an application under section 25-A of the Industrial Relations Ordinance, 1969, for his re-instatement with back benefits. The Junior Labour Court ordered his re-instatement. The employer has filed this appeal.

The facts are undisputed. The respondent joined service in 1952 as Chowkidar and was posted at Lyallpur. In 1973 Lyallpur Branch was closed. The respondent was offered a post of Van Man at Kalar Kahar, on the same pay. He accepted the offer and joined his new station on 1st September 1973. He met an accident and broke his spinal chord. There after, he had been applying for leave. From lst September 1973 to 30th July 1974 he obtained leave for 289 days on medical grounds. He attended to his duty during this period for 44 days. He applied for one month's further leave with effect from 31st July 1974. The Sargodha Branch of Lipton to which he was attached decided that his services should be terminated. Accordingly, on 20th August 1974 he was terminated from service. He was ordered to be paid provident fund, gratuity and one month's notice salary. Aggrieved by this order, he filed an application in the Junior Labour Court at Lyallpur. It was presented to the said Court, that the matter was not within its jurisdiction because the employer was at Sargodha and that the place of working was Kalar Kahar which was also within the jurisdiction of Sargodha Branch. The Junior Labour Court by his order, dated 25th October 1974 observed that the ease should have been filed in the Junior Labour Court at Sargodha. He directed the parties to appear before the Sargodha Court on 4th November 1974. The opinion of the lower Court was that the main reason for his termination was his absence from duty, that this act amounted to misconduct and so for all intents and purposes the termina tion of service amounted to a dismissal under Standing Order No. 15. It was further observed that the procedure necessary for dismissal was not adopted therefore, the order was bad in law. With those observations the employer was ordered to re-instate the employee with full back benefits.

The first point raised before me was that the case was originally instituted in the Junior Labour Court, Lyallpur, that the said Court had no jurisdiction either to entertain the application or to transfer it to Junior Labour Court. Sargodha. I agree with the contention that the application was not within the jurisdiction- of the Junior Labour Court, Lyallpur and the said Court was not competent to transfer it to Sargodha Court. The only procedure which could be adopted by the Junior Labour Court, Lyallpur was to return the application to the employee for presentation to the proper Court. As this application reached Sargodha Court on 4th November 1974, therefore, it would to be deemed that the application was presented to the said Court on that date. The question of limitation would crop up. The Junior Labour Court is competent to condone the delay under section 5 of Limitation Act. The question of limitation was not raised before the s aid Court, I, A therefore, assume, in the circumstances of this case that the delay was condoned by the said Court. The application cannot be held beyond period of limitation by this Court.

The real question in this case is whether the employer, in the above said circumstances, was competent to terminate the services of the employee. The letter of termination is on record. In this letter the employer has made it clear that the employee worked for 44 days out of 333 days and for the remaining period he was on sick leave. In these circumstances, the employer terminated the services, allowing one month's salary in lieu of notice. In the written statement the employer has made it clear that he had ordered payment of provident fund, gratuity and notice pay. All these points show that it was a case of termination of service and not a case of dismissal. Under Standing Order No. 12, an employer terminating services of a permanent worker by giving one month's notice in writing or one month's pay in lieu of notice needs not assign any reason for terminating service. It was for the employer to come to tie conclusion as to whether the employee should be retained in service or not. The employee had obtained sick leave for 289 days and he had asked further to give him one month's leave. It was for the employer to see whether a worker who had continuously remained sick for such a long period should be retained in service or he should be removed from service. For this decision a Court cannot interfere into the internal arrangement of an employer. It has been held in 1968 L L C 494 that termination on the ground of medical unfitness is the case of termination simpliciter and not punishment for misconduct. For these reasons I hold that the employer was competent to terminate service and the Labour Courts are not competent to interfere into the decision of the employer.

The appeal is accepted and the judgment of the lower Court is set aside.

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