MCB BANK LTD. Versus GHULAM MUHAMMAD MEMON

DECISION

1. ALI MUHAMMAD BALOCH (MEMBER).--- By this order, I would like to dispose of the above-mentioned appeal filed by the appellant against the order dated 15-10-2011 passed by the learned Presiding Officer, Sindh Labour Court No.1, Karachi, in Application No.41 of 2011 under section 62 of the Industrial Relations Ordinance, 2002 (replaced). I have heard Mr. Shoukat Ali Chaudhry, learned Advocate for the appellant, and Mr. Ghulam Muhammad Memon, the respondent in person. I have gone through the record and proceedings of the case, synopsis of arguments filed by the Advocate of the appellant and verbal arguments advanced by both the parties and have come to the following conclusion.

2. Perusal of the record reveals that the respondent Ghulam Muhammad Memon was dismissed on 23-2-2001. He filed grievance Application bearing No.97 of 2001, wherein he challenged his dismissal exactly in the following words:

3. "The Hon'ble Court may be pleased to set aside the order of dismissal of respondents from service dated 23-2-2001 and direct the respondent to reinstate the respondents in service with all back benefits and continuity in service."

4. The relief sought in the Application was very clear. The back-benefits allowed by the Labour Court accrued from the date of dismissal of the date of reinstatement. Neither there was any prayer nor any decision of Labour Court in respect of any payment for period before date of dismissal. If any amount on account of salary/wages was payable to the respondent prior to date of dismissal, the same cannot be considered as back-benefits, therefore, the amount claimed by the respondent is beyond the scope of decision of Labour Court, and does not fall within the term "back-benefits". The record further shows that the wages/salary effective 23-2-2001 of the respondent as per order of the High Court was deposited with the Nazir of High Court and the same was withdrawn by the respondent without any protest and demure. Therefore, the respondent's claim as to salary till May, 2001 is totally illegal, beyond the scope of section 70 of I.R.A., 2008.

5. Mr. Shoukat Ali Chaudhry, Advocate, in his arguments stated that if the amount mentioned in the impugned order (for the period prior to dismissal) was payable to the respondent, he could have filed an application under section 15 of the Payment of Wages Act, 1936, before the Authority appointed under the Payment of Wages Act, which is the proper forum and not under section 70 of the I.R.A. 2008, before the learned Labour Court.

6. In view of the above state of law, I am in agreement with submission of the learned Advocate of the appellant. The learned Labour Court has wrongly allowed the payment of Rs.189,756 to the respondent by exercising its powers under section 70 of I.R.A. 2008, because the amount in question was not at all payable under any settlement, award or decision of the Labour Court, but this pertains to the periods prior to the dismissal of the respondent/employee.

7. Furthermore, the period of 4 months 22 days during which the respondent did not perform his duty not at all payable to him. The appellants in Para 7 of their affidavit-in-evidence have specifically stated that during the period effective 1-10-2000 to 23-2-2001 the respondent did not perform his duty. This statement of the respondent was not challenged during the cross-examination of the respondent's witness. The respondent neither made any statement in his evidence that he did perform his duty during the said period nor produced any other evidence, therefore, on the basis of principle "no work no wages", the appellants are not liable to pay the salary of the respondent for the said period of 4 months 22 days. Mr. Shoukat Ali Chaudhry, Advocate on this point referred to the case of Syed Niaz Hussain Shah Bukhari v. Oil and Gas Development Corporation reported as 2003 SCMR 228 (231), when it has been held as under:---

8. "We have considered the arguments of the learned Counsel for the parties and have carefully examined the record, which shows that the period for which recovery of refund of the salary was effected from the respondents was the period for which he did not work. By now, it is settled law that when there is no work there is no pay. The respondents did not perform his duty as mentioned hereinabove and recovery was rightly effected from him."

9. Mr. Ghulam Muhammad Memon, the respondent, supported the impugned order of the learned Labour Court and further pointed out that the instant appeal is barred by time as the same has been filed beyond the period prescribed under the law. In reply to this objection of the respondent, Mr. Shoukat Ali Chaudhry, Adv, has explained that October 15(sic), 2011 (Saturday), when the impugned order was announced/ declared holiday on account of sad demise of Begum Nusrat Bhutto (Madre Jamhuriat.). October 16, 2011 was Sunday, the appellants came to know about the impugned order on October 17, 2011 and on the same day they applied for certified copy of the said order. Copy of the impugned order was delivered to the appellants on October 20, 2011. The time/limitation for filing appeal starts effective October 21, 2011 and expired on November 19, 2011, whereas the memo of appeal was presented on November 18, 2011 i.e. within 30 days from the date when the learned Labour Court re-opened on October 17, 2011 after two holidays (i.e. October 15 and October 16, 2011).

10. Though the merits have led me to conclude in favour of the appellant but the law of Industrial Relations does not provide any appeal against the order passed under section 62 or 63 in the present Sindh Industrial Relations Act, 2013, as section 48 of Sindh Industrial Relations Act, 2013, provides an appeal against an award, decision or sentence given or passed under section 34, 43 or 45, therefore, the appeal against decision under section 62 is not maintainable but section 48(5) provides remedy of revision to the aggrieved party, so under the law, Revision is available to the party but not the appeal, therefore, I am using power of Member, Sindh Labour Appellate Tribunal, under section 48(5) being come to know that the learned Labour Court has committed an error; hence I covert this Appeal into Revision and as per above discussion, allowed the same.

11. In the above explanation as to limitation forwarded by Mr. Chaudhry fully conform with the record of the case, therefore, the instant appeal was filed within the time prescribed by law.

12. In view of what has been discussed above, this appeal is accepted and the order dated 15-10-2011 of the learned Labour Court to the extent of deposit of Rs.189,256 is set aside.

13. JJK/1/SLT Appeal accepted.