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Appeal No. LHR‑464 of 1984, decided on 12th May, 1985.

(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑

‑‑‑S.O. 1 & 12(3)‑‑Badli Conductor of Punjab Urban Transport Corporation after continuous service of 3 months refused duty without any written order‑‑Such Conductor, held, became a permanent workman and refusal of duty amounted to illegal Termination.

‑‑‑S. 25‑A‑‑Reinstatement‑‑Back benefits‑‑Petition succeeding on merits‑‑Petitioner entitled to back benefits only if he proves that after removal from service he remained jobless.

Ziaullah for Appellant.

Muhammad Zaman Qureshi for Respondent.

Date of hearing: 4th May, 1985.

The decision, dated 10‑7‑1984 passed by the learned Presiding Officer, Punjab Labour Court No. 2, Lahore has been challenged whereby the grievance petition of the appellant was accepted without back benefits directing that he should be given duty as permanent Conductor. The case of Muhammad Safdar was also jointly decided by the learned lower Court but since the facts are different the appeal brought against the said respondent is being taken up separately. The respondent has also brought cross‑objection which are being disposed of alongwith the appeal.

2. The case of the respondent was that he was appointed against permanent vacancy whereas R.W. 1 stated that he was appointed as Badli Conductor on daily wages at the rate of Rs.21 per day. In cross‑examination R.W. 1 stated that the respondent was not engaged since June, 1982. He also stated that the respondent was in service. The statement of the respondent shows that after being given duty on 4‑3‑1982 he continuously worked till 14‑7‑1982. When this part of the statement is read with the statement of R.W. 1 who said that the respondent was not removed from service it becomes quite clear that the respondent after working continuously for more than three months as Badli Conductor became permanent according to the definition of permanent workman given in Order I of Standing Orders Ordinance. If a Badli works continuously for three months or for 183 days within 12 successive months he becomes permanent. Since the appellant is the appointing authority only he knows in what capacity the respondent was taken in service. In view the fact that the appellant did not disclose in whose leave vacancy the respondent was taken in service, the stand taken by the appellant that the respondent was appointed as Badli Conductor appears to be correct. However, this stand taken by the appellant that the appellant was taken on the list of approved Conductors has no force as such an action is not warranted by any law. The concept of Badli is only that which has been given in Order I Standing Orders Ordinance. Even if it is taken that the respondent was brought on the approved list of Badli Conductors he became permanent when he worked for more than three months. The respondent was to be appointed against a permanent vacancy even if the Conductor in whose leave he had been appointed had come back, since he after serving as Badli continuously for more than 90 days had become permanent. R.W. 1 no doubt stated that the respondent was not removed from service, but he stated so wrongly in the light of R‑1 and R‑2. the name of the respondent was taken on the approved list of Conductors but he was not appointed from the date of inclusion in the list. R.W. 1 meant to say that the name of the appellant was not removed from the panel. As a matter of rule as soon as the respondent was refused to be given duty after 14‑7‑1982 he stood removed from service. The order of termination is illegal, because it was not in conformity with the provisions of Order XII clause (3) of the Standing Orders Ordinance, 1968, according to which the services could be terminated by a written order giving explicit reasons. It has not been shown by the appellant that the Conductor in whose leave vacancy the respondent was appointed as Badli was not a permanent Conductor, the respondent, therefore, was entitled to be re‑instated in service. The learned lower Court was mislead by the statement of R.W. 1 to the effect that the services of the respondent were not terminated, therefore, the learned lower Court directed that the respondent should join duty as Badli Conductor.

3. So far as back benefits are concerned the respondent has argued that since not on the ground of any technical flaw the grievance petition of the respondent was accepted he is entitled back benefits. I cannot agree with this proposition. Even where on merits a worker succeeds he is entitled to back benefits if he proves that after his removal from service he had remained jobless. So the respondent is not entitled to back benefits.

4. As a result of the observations made above, the appeal is dismissed and accepting the cross‑objections partly the direction given by the learned lower Court is modified and the appellant is directed to re‑instate the respondent as permanent conductor. However, as the respondent did not state that after termination of his service he remained jobless he is not entitled to back benefits.

A. E. Appeal dismissed.

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