1991 PLP 777 (PLC)

MAMOON KAZI, J.

The petitioner has called in question the decision given by the learned Labour Appellate Tribunal Sin dh dated 18-1-1987 confirming the decision of the learned Third Sindh Labour Court, Karachi reinstating the petitioner with full back benefits.

2. The facts of the case are that the petitioner was appointed by the respondent No. 3 as a "Setter" which involved manual work. During his employment the petitioner allegedly remained absent from duty on a number of occasions and consequently he was given a charge-sheet by the respondent No. 3 and one Mr. Khalid Mehmood Shaikh, Labour Administrative Officer of the said respondent was appointed as Enquiry Officer. Thereafter, according to the petitioner, although he participated in the enquiry but he raised certain objections and consequently before the completion of the enquiry the Factory Manager on 10-8-1982 dragged the petitioner from the factory and also threatened to involve him in criminal cases. However, the petitioner sent grievance notice to the respondent No. 3 on 4-9-1982 but the respondent did not reply to the said notice. Consequently, the petitioner filed a grievance petition before the learned Labour Court under section 25-A of the I.R.O.

3. Respondent No. 3 resisted the said petition on the ground that the petitioner had remained absent from duty without any just excuse. It was also denied that the petitioner had been forcibly turned out from the company. According to the said respondent, the behaviour of the applicant was rash and insolent and the petitioner although was required to report for duty but he left the factory of his own accord. The petitioner also did not participate in the enquiry proceedings and remained absent from duty on his own. A legal objection was also taken that the said respondent was manufacturing goods for the purposes of defence and therefore, the Company was excluded from the application of I.R.O. under section 1(3) thereof.

4. The learned Labour Court after holding that it had jurisdiction on in the matter held respondent No. 3 guilty of not holding a proper enquiry-against the petitioner and consequently it ordered the petitioner's reinstatement in service without back benefits. The awarding of the back benefits to the petitioner was, however, made dependent upon the result of afresh enquiry which it authorised the said respondent to hold against the petitioner.

5. Both the petitioner as well as respondent No. 3 were aggrieved by the said decision of the learned Labour Court and consequently they filed their respective appeals before the learned Labour Appellate Tribunal. However, both the appeals were dismissed but while dismissing the appeal the learned Tribunal observed that holding of fresh enquiry against the petitioner would not be necessary in view of the facts and circumstances of the case and the evidence brought on record.

6. The main contention of Mr. Khalid Javed, learned counsel for the petitioner is that after dismissal of the appeal of respondent No. 3 and dispensing with the holding of a fresh enquiry against the petitioner, the learned Appellate Tribunal ought to have allowed back benefits to the petitioner. Reliance has been placed by the learned counsel on two Division Bench judgments of this Court recently given in the case of Syed Asghar Imam v. Sindh Labour Appellate Tribunal 1990 P L C 346 and Gul Hassan v. Divisional Superintendent, Railways 1990 P L C

757. In both the cases it has been held that in absence of any evidence that the workman was gainfully employed elsewhere during the period he remained out of service the award of back benefits should not be withheld by the Labour Court when the workman has been reinstated in service. Reliance has also been placed by Mr. Khalid Javed on the case of National Bank of Pakistan v. Muhammad Asif Ahmed PLC 1985 Quetta 23 wherein similar view has been expressed by a learned Division Bench of the Quetta High Court.

7. So far as the dictum laid down in these judgments is concerned, there can hardly be any cavil with the same. However, the difficulty faced by the petitioner in the present case is that, no enquiry is to be conducted into the charges levelled against him by respondent No.

3. No doubt, the learned Labour Court in its order dated 15-2-1986 directed the said respondent to complete enquiry against the petitioner but the petitioner challenged the said directions of the learned Labour Court by maintaining before the learned Appellate Tribunal that if the said respondent was allowed to hold a fresh enquiry against the petitioner there was every likelihood of his removal from service. We would like to point out that payment of back benefits would very much depend upon the petitioner's clearing himself of the charges for which charge-sheet had been given to him by respondent No.

3. The charge-sheet shows that the petitioner was habitually absenting himself from work without leave and as it appears, it was on this account that the petitioner was finally served with a charge-sheet. We think that it was in the petitioner's own interest to face the enquiry because unless he is completely exonerated of the charges levelled in the enquiry, in our opinion, the employer cannot be burdened with payment of back benefits to the petitioner. We would like to point out that the relief sought by the petitioner before this Court is purely discretionary and we would certainly be reluctant to exercise our discretion in favour of the petitioner who has still to clear himself of the charges of misconduct levelled against him. So far as the cases cited by the learned counsel for the petitioner are concerned, the workmen in those cases were reinstated without continuation of any stigma against them. No doubt, in the present case both the learned Tribunals below have held the removal of the petitioner from service as unwarranted by law but, as has been pointed out by us earlier, no attempt has been made by the petitioner to clear himself of the charges. For this the petitioner has only to blame himself. As pointed out by us earlier, the petitioner himself did not want to face the enquiry before the employer. We are, consequently, of the view that the facts of the present case are distinguishable and the petitioner is not entitled to back benefits claimed by him.

8. In the result, this petition is dismissed. The parties are, however, left to bear their own costs. H.B.T./M-1438/K Petition dismissed.