P L D 1983 Lahore 661 (PLP)

The petitioner was a Security Guard in the Punjab Urban Transport Corporation, Garden Town Depot, Lahore. At 22-45 mid-night on 30th April, 1978, he was found asleep. A charge-sheet was issued to him to the effect that: "You were found asleep on duty, it is against rules and regulations, it shows that you do not take interest in the work. Why should departmental proceedings be not taken against you?" He submitted a reply denying the allegation and attributing that to malice. After enquiry, the District Manager, Punjab Urban Transport Corporation Garden Town Depot, Lahore, passed the following order : "Mr. Niaz Ali Security Guard was issued charge-sheet No. PUTC/GT/ TOP/437/312, dated 10-5-1978 under section 15, subsection (3), clause (i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 for committing an act of habitual negligence. His reply to the charge-sheet was considered unsatisfactory and inquiry was entrusted to Javed Sultan, Inquiry Officer, Punjab Urban Transport Corporation, Garden Town Depot, Lahore. The Inquiry Officer afforded full opportunity to Mr. Niaz Ali to defend his case. The Inquiry Officer in his inquiry report dated 8-1-1979, held the accused guilty of the charges framed against him. He was issued final Show. Cause Notice No. PUTC/GT/TOP/205, dated 11-1-1.979. He was given an opportunity of personal hearing which he availed on 2-6-1979, but he could not convince the undersigned about his innocence. A security guard is responsible to safeguard the property of the department. His slackness while on guard is most dangerous and cannot be excused. (2) Agreeing with the findings of the Inquiry Officer, I hold Mr. Niaz Ali Security Guard guilty of the charges and dismiss him from service w.e.f. 2-6-1979 (a.m)." The petitioner filed a petition under section 25-A of the Industrial Relations Ordinance before the Labour Court and the learned presiding Officer in paragraph 4 of his order held that "The allegation against the petitioner is that he was found sleeping at 2-45 a.m., while he was on duty. A solitary instance of sleeping on duty does. not amount to misconduct. :It can be termed as inefficient working or it may be- negligence or neglect of work. Unless, there is a frequent repetition of this act, it will not amount to misconduct. The act or omission of the petitioner may fall in clause (1) of Standing Order No. 15 and in such a case, -the -employer may reprimand him or impose a penalty of fine, but the penalty of dismissal cannot be imposed on him. As the allegation does not amount to misconduct, therefore, the Order of dismissal is illegal." In the result vide paragraph 5, the learned Presiding Officer accepted the petition and directed the employer "to re-instate the petitioner with back benefits". This is vide order dated 30-1-1980. The employer filed an appeal and the learned Appellate Tribunal observed that "after taking into consideration the relevant facts and circumstances of the case I feel that the view taken by the Labour Court so far the re-instatement of the respondent in service is concerned, is correct. However, he was not entitled to back benefits as negligence on his part is an admitted fact. Accordingly, while maintaining the impugned decision regarding re-instatement of the respondent in service, I modify the impugned decision to the extent that the respondent shall not be paid back benefits'". This is vide order dated 25-1-1981. This is challenged by the petitioner through the aforetitled constitutional petition.

2. Learned counsel for the petitioner has contended that once the order of dismissal was found to be unlawful, the petitioner was entitled to `back benefits' as laid down in Pakistan through General Manager, P. W. R. Lahore v. Mrs. A. V. Issacs (P L D 1970 S C 415) p. 438 ; Mukhtar Ahmad v. Commissioner, Lahore Division, Lahore and another (1980. P L C (C S) 67) and Muhammad Sharif v. Chairman, Road Transport Corporation and another (1976 P L C 744).

3. Learned counsel appearing for the employing authorities has submitted . that the learned lower Appellate Tribunal has rightly not allowed the back benefits to the petitioner because he was negligent in the performance of his duty. He was asleep when his duty was to be awake.

4. The only question involved is whether the back benefits could be withheld. Once it was held that the termination of the service was wrong on unsustainable, it followed as a natural corollary that withholding of the salary" or incidental benefits was also wrongful and without lawful authority. The judgments quoted by the learned counsel for the petitioner support him. The learned Appellate Tribunal took the view that as there was negligence on the part of the petitioner. be may be deprived of the back benefits. The learned Appellate Tribunal, however, omitted to take into account that there was a law applicable for such dereliction of duty when it lays down in section 15(1) of the West Pakistan (Standing Orders) Ordinance, 1968 that "a worker may be--fined. up to three paisa in the rupee of the wages payable to him in a month for any of the following acts or omissions, namely : (i) ..... (ii) (d) inefficient, dilatory, careless or wasteful working." It is stated by the petitioner that he was paid Rs. 500, some time Rs. 550 and some time Rs. 575 p.m. Taking Rs. 550 as average wages, the fine impossible under the aforesaid provisions would be Rs. 16.50. Since the employer had not imposed the fine which it could and the learned lower Appellate Tribunal did not advert its attention to the relevant B provision of law, its order as far as it withholds the back benefits which it could not under the law is declared to be without lawful authority and of no legal effect. It will, however, be open to the employer the exercise its power of imposing fine if it so desires in terms of the aforesaid provisions. This petition is allowed with costs. The back benefits shall not be withheld any more unreasonably and payment made within the next three weeks. M.Y.H. Petition accepted.