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Appeal No. 179 of 1974, decided on 3rd July 1975.

----Ss. 25-A & 36-D Termination challenged before Junior Labour Court as malicious and illegal-Petition res1sted on ground that petitioner was not a workman-Junior Labour Court holding him workman and without recording any finding regarding merits of termination order passing order of re-instatement with back benefits-Order of Junior Labour, in circumstances, set aside and case remanded for decision afresh.

Appellant through Counsel.

Respondent in person.

Syed Asghar Ali Shah respondent an employee of the appellant viz. M/s. Packages Limited, Ferozepur Road, Lahore was terminated in July, 1973 anti he was allegedly informed of this termination when he applied for one month leave on 2nd July, 1973.

2. On 19th July, 1973 the respondent filed an application under section 25-A of the industrial Relations Ordinance, 1969 against the appellant before the Junior Labour Court, Lahore seeking his re-instatement with back benefits. In the said application he challenged the validity of the order of this termination on the ground that the same was made without observing the formalities prescribed by law and without holding of any enquiry and affording any opportunity to show cause to him. He also contended that his termination was malicious, inasmuch as, Mr. M. A. Malik an officer of the appellant was inimical towards him and that he was also victimized for his Trade Union activities.

3. The appellant res1sted the respondent's petition before the learned lower Court and pleaded inter alia that the respondent was found to be responsible for misconduct and two show-cause notices were served on him. He was also given an opportunity to explain his conduct. Explanation given by him was found to be unsatisfactory. It was however, pleaded, that no enquiry was necessary as the respondent was given an opportunity to explain his conduct in writing which he failed to do and therefore the action taken against him was perfectly lawful and justified. Besides res1sting the respondent's petition on merits in the manner as indicated above, the appellant raised legal objection to the effect that respondent's petition was not legally competent because he was employed in admin1strative capacity as Merchandizing Officer and was not thus a workman within the meaning of the Industrial Relations Ordinance as well as the well Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

4. Kunden Lal, General Secretary, Packages Workers' Union, Abdul Ghafoor and Asghar Ali Shah respondent himself testified as respondent's witnesses before the learned Junior Labour Court. Mehraj Din, incharge, Times Office, Packages, Limited, and Muhammad Shafiqur-Rahim, Ass1stant Accountant, Packages Limited, appeared as appellant's witnesses before the learned Court below. The statements of all the aforementioned witnesses were mainly confined to the point as to whether the respondent was a workman or not.

5. The learned lower Court by its order, dated 29th June, 1974 which has been impugned through the present appeal found that the appellant was a workman and after doing so accepted the respondent's petition and ordered his re-instatement with immediate effect with full back benefits. No finding at all has been recorded by the learned lower Court on the point as to whether the termination of the respondent was wrongful and illegal or otherwise. Without recording finding in this behalf, the learned lower Court could not legally order the re-instatement of the petitioner wit back benefits.

6. In this view of the matter it would transpire that the case has not been properly decided by the learned lower Court. The mere fact the respondent according to the view taken by the learned lower Court happened to be workman does not entitle the respondent to ipso facto restoration unless it be held that his termination was wrongful and illegal. As stated above, no finding regarding the validity or otherwise of the order of the termination of the respondent have been recorded by the learned lower court in the circumstances I have no alternative but to accept the appeal and set aside the impugned order and remand the case to the learned Court below with the direction that it be decided afresh in accordance with the law in the light of above observation. I do not consider it appropriate) to record my finding at this stage on the point that if the respondent is a workman or otherwise. The parties are directed to appear before the learned lower Court for further proceedings on 15th July, 1975.

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