1981 PLP 739 (PLC(CS))

Muhammad Arshad Khan v. J & P Coals P L D 1977 Kar. 83 held not applicable. Commerce Bank v. Muhammad Ali 1975 P L C 180 and Yousuf Textile Mills v. Khairun Nisa 1975 P L C 401 rel. Muhammad Rafiq for Appellant. Date of hearing : 8th October, 1980. The appellants, who was employed as a fitter cooly at the Kotri Railway Station, was removed from service by an order, dated 7th September, 1979, on the charge of assaulting Akhtar Mirza, P.I.C. on 9th September, 1978. The appellant challenged his removal from service before the learned Labour Court which has taken the view that the appellant was not afforded proper or reasonable opportunity to defend himself in the domestic enquiry. It accordingly has held that the proceedings in the domestic enquiry stand vitiated and hence the order of removal, which is based on the domestic enquiry, is invalid. The learned Labour Court, while directing the re‑instatement in service of the appellant, has, however, withheld the grant of back benefits to the appellant and has given an option to the respondent administration to hold a fresh enquiry against the appellant in accordance with law and directed that the back benefits will follow the result of such fresh enquiry.

2. The appellant has appealed against the rejection by the learned Labour Court of his claim for grant of back benefits. In support of his claim, Mr. Rafiq Ahmad, the learned counsel for the appellant, has relied upon the decision of a learned Single Judge of the Karachi High Court in the case of Mohammad Arshad Khan v. J & P Coals (P L D 1977 Kar. 83). The said decision, however, is wholly inapplicable to the present case. The established facts in the reported case were that petitioner Mohammad Arshad Khan was dismissed from service on the charge of non performance of his duties. He challenged his dismissal orders before a learned Junior Labour Court which set aside his dismissal mainly on the ground that the respondent Company had failed to prove that the petitioner workman participated in the domestic enquiry and was afforded an opportunity to be heard. The learned Junior Labour Court, accordingly, ordered that a fresh enquiry be held and rejected the petitioner's claim for award of back benefits. The High Court came to the conclusion that in view of the re ‑instatement of the petitioner workman, his claim for grant of back benefits could not be rejected. However, this decision is based on the provisions of subsection (4) of section 36, I.R.O., which section reads as follows :‑ "36‑B.‑‑(4) If the matter brought before it arises out of the dismissal or removal from service of a workman, a Junior Labour Court may direct the re‑instatement of the workman and allow consequential benefits to him."

3. The corresponding provisions in section 25‑A, I.R.O., which under the impugned order was made, however, are materially different from the above provisions. Subsection (5) of the said section provides that in adjudicating and determining a grievance under subsection (4), the Labour Court shall pass such orders as may be just and proper in the circumstances of the case. It will thus be seen that wide discretion has been conferred upon the Labour Court in passing appropriate orders on a grievance petition. Of course, that discretion has to be wisely exercised in accordance with established principles and norms of justice. However, it is entirely within the province of the learned Labour Court, in appropriate case, to withhold the back benefits, even though it directs the re‑instatement of an aggrieved workman. In the instant case, the re‑instatement was ordered solely on the ground that full opportunity of proper defence was not afforded to the appellant in the domestic enquiry. The order of the learned Labour Court, thus, in permitting the fresh enquiry and making the receipt of the back benefits dependent upon the result of the fresh enquiry was a proper exercise of its powers under sub section (5) of section 25‑A. This view finds support from the decisions in the cases of Commerce Bank v. Mohammad Ali (1975 P L C 180) and Yousuf Textile Mills v. Khairun Nisa (1975 P L C 401). This Tribunal has been consistently following the view taken in these decisions.

4. For the reasons stated above, I find no merit in this appeal dismiss the same in limine.