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Appeal No. JM‑‑133 of 1985, decided on 28th September, 1985.
(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑
‑‑‑S.O. 1‑‑Permanent workman‑‑Apprentice‑‑Person appointed under Apprenticeship Ordinance, 1962‑‑Job permanent and continuing for more than nine months‑‑Incumbent, in circumstances held, a permanent workman‑‑Termination on grounds that services no longer required‑ Order of Labour Court awarding re‑instatement, in circumstances, upheld by Appellate Tribunal‑‑Industrial Relations Ordinance (XXIII of 1969), Ss.25‑A & 38(3).
‑‑‑S. 37‑‑Appeal‑‑Questions of fact not raised in pleadings‑‑Cannot be raised at appellate stage catching other party unaware‑‑Plea that grievance notice was served on authority other than passing impugned order‑‑Such plea neither raised in written statement nor even in memo of appeal‑‑Refused to be entertained in arguments at appellate stage.
‑‑‑S. '25‑A‑‑Grievance notice‑‑To be given to employer‑‑Plea that grievance notice be served on company and it should be sued as if a corporate body and a juristic person‑Repelled.
Shamid Hamid for Appellants.
Ch. Sadiq Muhammad Warraich for Respondent. .
Date of hearing: 21st September, 1985.
The appeal captioned above is directed against the decision dated 7‑2‑1985 recorded by the learned Presiding Officer, Punjab Labour Court No. 6, Rawalpindi, whereby the grievance petition of the respondent was accepted with back benefits.
2. The respondent was appointed as Apprentice Process Trainee and was removed from service on 28‑4‑1983 on the ground that his services were no longer required.
3. It has been argued that since the respondent contended in his grievance petition that he was not appointed under the Apprenticeship Ordinance, 1962 as apprentice but was appointed as Process Trainee, he is not a workman. Apprentice is defined in Standing Order 1 of Standing Orders Ordinance, 1968. According to the case of the appellant, the respondent was appointed under the Apprenticeship Ordinance, 1962, so the stand taken by the respondent is untrue. Since the job of apprentice is a permanent post and if it continues for more than nine months or the work is of permanent nature and as this is not the case of the appellants that the work is not of a permanent nature, the respondent was permanent workman.
4. It has been argued by the learned counsel for the appellant that the order of termination was passed by the Finance and Administrative Manager but grievance notice was served upon the General Manager. This point was not raised in the written statement and has not even been raised in the memo. of appeai. If such a point had been taken up in the pleadings, the respondent may have produced evidence t to the effect either that copy was endorsed to appellant No. 2 or that grievance notice was sent to him. A point of fact that has not been raised in the pleadings cannot be raised at the appellate stage catching the other party unaware.
5. It has been argued that the grievance notice should have been served upon the I.C.I. and it should have been sued as if it is al corporate body and a juristic person. Such an objection may be effectively available in civil cases but in labour cases only the employer is to be sued and given grievance notice. Section 25‑A does not say that the company should be sued or given grievance notice. It says that grievance the notice should be given to the employer. So the objection is overruled.'
6. So the respondent was rightly directed to be re‑instated in service. However, he is not entitled to back benefits, as he did not assert that after being terminated from service, he remained jobless. On the contrary the appellants produced letter Exh.R‑6, dated 5‑1‑1984, received from the Ministry of Defence informing that the respondent had been taken in service and his service particulars were asked for.
7. As a result, the appeal is partly accepted and modifying the impugned decision of the learned lower Court, the respondent is disallowed back benefits.
A.E.
Appeal partly accepted.
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