1989 PLP 730 (PLC)

Khalil‑ur‑Rehman for Appellant. Narain Das for Respondents. Date of hearing: 13th March, 1989. This appeal is against the order of the learned Presiding Officer, Sind Labour Court No.l, Karachi, dated 10‑10‑1988, whereby the learned Presiding officer partially allowed the grievance petition of the appellant and ordered his reinstatement but disallowed back benefits. The appeal filed by the respondents against the said order of reinstatement has earlier been dismissed by this Tribunal by order, dated 10‑1‑1989. This appeal is against the order disallowing back benefits.

2. I have heard Mr.Khalil‑ur‑Rehman, representative for the appellant and Mr.Narain Das, counsel for the respondents.

3. Admittedly there is no specific provision under the I.R.O. with regard to the grant of back benefits by the learned Labour Court. In practice the Courts have been allowing, disallowing or partially allowing back benefits in exercise of their discretion looking to the circumstances of each case. In the instant case the learned Labour Court while disallowing the appellant back benefits has opined that the appellant has succeeded on technical ground and further that in his application the applicant has not stated that he had remained jobless. Admittedly there is no evidence to show as to whether the appellant during the period in question remained jobless or he was on job. Admittedly in the grievance application the appellant has not averred that he remained jobless but in the 'prayer clause' he has claimed back benefits. It has been pointed out by Mr.Khalil‑ur‑Rehman that in the 'prayer clause' of the grievance notice the appellant had submitted that . he had been penalised illegally and his un employment still continued. This grievance notice is' dated 13‑11‑1986.

4. Mr.Narain Das has relied upon decision of the learned Punjab Labour Appellate Tribunal reported in 1987 P L C 470, wherein it was held that the appellant workman who was reinstated on technical ground was not entitled to back benefits. In 1986 P L C 693, under the circumstances of that case the learned Punjab Labour Appellate Tribunal did not allow back benefits to the workman who was reinstated similar view was taken by the same Tribunal in cases reported in 1986 P L C 481 and 1988 P L C 722.

5. Mr.Khalf‑ur‑Rehman has relied upon the decision of this Tribunal in Appeal No.KAR‑358 of 1988, decided on 5‑12‑1988 wherein this Tribunal had held that "the appellant workman was entitled to the back benefits if the order/action of his removal was held by the competent Court to be illegal and if he had not shown his unwillingness to render services." Reliance was placed by this Tribunal upon P L D 1973 S C 589 and decision of this Tribunal in Appeal No.KAR‑93 of 1988. In the Supreme Court case their Lordships while interpreting the term 'wages' as defined in clause 2(vi) of Payment of Wages Act held that "it does not necessarily mean wages earned but when employee to whom the said Act was applicable was ready and willing to render service was illegally kept out he was entitled to full wages unless deductions were allowable under the Act." It is not disputed that the Payment of Wages Act is applicable to the appellant but he has not sought the remedy under the said Act before the Authority appointed under the said Act. He has sought remedy from learned Labour Court in exercise of its discretion. The appellant was dismissed from service on the ground of misappropriation of the money that he took from the passengers without issuing tickets. However, procedure adopted in the enquiry was found to be defective, consequently the order of dismissal was set aside. The appellant was removed from service on 8‑9‑1986 and was reinstated under the orders of the Court on 10‑11‑1988.

6. Keeping all the circumstances of the case and the case‑law on the subject, in my opinion, the award of back benefits to the extent of fifty per cent would meet the ends of justice. The appeal is disposed of in the above terms, A.E./1424/Lb.S Order accordingly