NATIONAL CONSTRUCTION LTD., KARACHI Versus MUHAMMAD ILYAS HUM AYUN

DECISION

These are two cross‑appeals filed against an impugned order, dated 3‑12‑1985, passed by the Sindh Labour Court No. III, at Karachi who had allowed the grievance petition under section 25‑A, I.R.O., 1969, of Muhammad Ilyas Humayun, directing his reinstatement in service without back benefits. Appeal No. KAR‑2/86 has been filed by Messrs National Construction Limited, Karachi, against the reinstatement order, while, Appeal No. KAR‑24/86 has been filed by Muhammad Ilyas Humayun against the impugned order disallowing back benefits to him. As both these were decided by one order I would also decide these two appeals by this single Decision.

2. Brief facts of the case are that Muhammad Ilyas Humayun claimed to be a permanent employee of National Construction Ltd. working as Quantity Surveyor and had a clean and spotless Service Record, while posted at various projects. It was further claimed by him that due to heavy load of work he Bused to work overtime and got appreciation from the Management. He claimed that the Management, in order to accommodate another person, had asked him to give job training to the newly‑recruited person only to justify the replacement of him by new appointee and that without any reason had terminated the services on a fake ground of ill‑health and absence from duties. Muhammad Ilyas Humayun further claimed that the order of termination of his service was illegal, mala fide, and unjust and also contrary to the provisions of Law amounted to a dismissal, therefore, being aggrieved, he submitted his grievance petition before the learned Labour Court.

3. The Management of National Construction Ltd., Karachi, had resisted the case on the ground that Muhammad Ilyas Humayun was not a workman, therefore, could not maintain grievance petition. Further, that he was a heart patient and on account of this illness he was unable to perform duties regularly and used to remain absent from duties frequently, therefore, the termination of his services was quite correct and as such he could not maintain the grievance petition which was liable to be dismissed.

4. Both the parties filed their respective affidavits‑in‑evidence and they were duly cross‑examined. Thereafter, the learned Labour Court has passed the impugned order directing the reinstatement in service of Muhammad Ilyas Humayun without back benefits, giving an option to the management to hold fresh enquiry against him in accordance with the law on a charge of remaining absent from duty for more than 10 days. Hence, the present two cross appeals.

5. I have heard Mr. Choudhry Rasheed Ahmad, the learned Advocate for Muhammad Ilyas Humayun, both the parties have also submitted their written arguments I have also carefully perused the record and proceedings of the case. At the very outset, I would observe here that the impugned order is well‑reasoned and needs not to be interfered with. As regards Appeal No.KAR‑2/86 filed by the management, I would hold here that it has become infructuous and is liable to be dismissed as such because in view of the option accorded to the management to re‑hold proper enquiry against Muhammad Ilyas Humayun on the charge of misconduct, the management had again terminated his services and the worker is no more in the employment of the respondent‑Management.

6. As regards Appeal No. KAR‑24/86 filed by the worker, Muhammad Ilyas Humayun it was contended that from the evidence on record it was proved that he was not gainfully employed anywhere during the period of his employment and in this respect, the Management had miserably failed to establish that the worker was gainfully employed. Taking into consideration the fact that there is nothing on record to show that the worker, Muhammad Ilyas Humayun was gainfully employed anywhere during the pendency of his petition before the learned Labour Court, I am of the view that he would be entitled to get the back benefits and the learned Labour Court was not correct in disallowing these benefits, to the worker in its impugned order. I would, therefore, set aside the impugned order only on this issue and would allow only 30% (thirty per cent) back benefits to him.

7. For the reasons discussed by me above, I would maintain the impugned order and would partly allow the Appeal No. KAR‑24/86 filed by the worker, Muhammad Ilyas Humayun, by allowing him thirty per cent (30%) back benefits only. As regards Appeal No. KAR‑2/86 I would dismiss the same as having become infructuous. Accordingly both these cross‑appeals are disposed of.

M.Y.H./1169/Lb.S Order accordingly.