1994 PLP 150 (PLC)

Muhammad Latif for Respondent. Date of hearing: 22nd May, 1993. This appeal has been moved to question the legality of the judgment of the Presiding Officer, Labour Court, Peshawar, dated 28‑3‑1992 whereby the grievance petition of the appellant for grant of back benefits and wages was dismissed.

2. The relevant facts of the case are that the appellant was employed as Driver in the Establishment of the respondent but having been found involved in a narcotic case he was dismissed from service with effect from 15‑11‑1988. The appellant preferred a grievance petition against his dismissal order and the Presiding Officer, Labour Court, vide order dated 28‑11‑1990, while accepting the grievance petition, set aside the order of his dismissal from service and ordered his reinstatement in service with permission to the respondent to hold fresh enquiry in the matter after affording full opportunity to the appellant to defend himself. It was held at that time that "the question of back benefits and wages will depend upon the result of fresh enquiry."

3. In pursuance of the above order, the Management conducted fresh enquiry against the appellant and the Enquiry Officer held that the appellant could not be held responsible because of this absence at the relevant time as he was confined in Central Jail, Gujranwala in a criminal case but he found him guilty for his wilful negligence/carelessness for having not informed the Department about the actual cause of his confinement in Jail. Consequently, he was allowed reinstatement in service but was not given back benefits and wages for the intervening period.

4. I heard both the learned counsel in support of their respective contentions and studied the record.

5. It could not be denied that the appellant had not informed the Management of his detention in jail in a criminal case and, therefore, he was rightly adjudged guilty for wilful negligence in this respect. It was incumbent on the appellant to have at least asserted his rights to back benefits and wages in his statement in Court but he had not done so and, therefore, on this account alone his claim to back benefits and wages could not be considered. Moreover, the impugned orders of the Labour Court cannot be said to be unwarranted and without jurisdiction but rather the appellant by his own conduct was responsible for the acts which resulted in his dismissal from service and, therefore, in view of the rule laid down in Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal and others (1991 SCMR 2087) his claim to back benefits and wages could not be entertained. It has been observed by their Lordships of the Supreme Court as under:‑‑ "Back benefits, grant of Principles Back benefits do not automatically follow the? order of reinstatement where the order of? dismissal or removal had been set aside .... .... Burden of proof to establish that the workman was engaged in some gainful? employment during the period he remained out of service was on employer. What will be `just and proper' under clause (5) of section 25‑A of the Industrial Relations Ordinance will depend on the question whether the order of removal or dismissal is found to be without jurisdiction, unwarranted and uncalled for or whether it has been actuated partly or wholly on account of the conduct attributable to workman. In the former case he would be entitled to avail of the back benefits while in the latter case, his claim in that regard may not be just and proper:'

6. The conclusion arrived at by the Labour Court is, therefore, legally correct and needs no interference. This appeal is accordingly dismissed but with no order as to costs. H.B.T./167/Lb.N???????????????????????????????????????????????????????????????????? ??????????? Appeal dismissed.