2004 PLP 116 (PLC)

Ali Ahmad Awan for Respondent No.

1. Date of hearing: 30th April, 2003. Writ Petitions Nos. 12846 of 1998 and 16091 of 1998 are being disposed of through this common judgment. The former has been instituted by the employee maqbool Ellahi (hereinafter referred as "the petitioner") and the latter has been instituted by the employer-Pattoki Sugar Mills Ltd. (hereinafter referred as "the respondent"). The writ petitions have arisen out of the following circumstances.

2. The petitioner was appointed as an Accounts Clerk in the respondent's establishment on 2-6-1978 and was subsequently prompted as Accounts Assistant. On 26-12-1988 an amount of Rs.84536, as price of 100 bags of sugar, purchased by Messrs Muhammad Irfan and Company, was received against Receipt No.2368, which was admittedly received by the Accounts Officer, Munir Hussain Shah, who, neither passed it or, to any other official nor deposited it with the bank. It was disclosed by one Mr. Jamil, Assistant Accountant, in the first week of February, 1989 that no cash was found to have been deposited against Receipt No.2368 dated 26-12-1988. An enquiry was conducted in which it was found that the cash amount was received by the Accounts Officer, Munir Hussain Shah, who kept the same with him and had misappropriated the same. The Enquiry Officer, wide his report dated 13-6-1989; gave a, finding against the aforesaid Munir Hussain Shah, of fraud, breach of rust, embezzlement, misappropriation, and dishonesty in the performance of duty. It was recommended that Munir Hussain Shah be dismissed from service and criminal case be got registered against him. The said Munir Hussain Shah on the issuance of show-cause notice resigned from service and deposited the afore-said amount with the respondent-employer. The petitioner was suspected of having not made the management aware of what had happened. The explanation of the petitioner was that responsibility of Sales Section had come to an end the moment the sale of the sugar had materialized and the Accounts I Officer had received the cash and it was not part of his duty to see to it that the amount had been deposited in the account of, the mill. It was further explained that bank record was managed by different sections and not by the Sales Section. The petitioner was, however, served with a show-cause notice, he was charge-sheeted, made to face the enquiry and was ultimately dismissed from service on 1-11-1989. The petitioner therefore, filed a grievance petition under section 25-A of the Industrial Relations Ordinance, 1969 alleging that the cash amount in dispute was received by Munir Hussain Shah against Receipt No.2368, dated 26-12-1988, which was duly signed by the said Munir Hussain Shah and in the enquiry also the said Munir Hussain Shah was found guilty but the petitioner had been wrongly served with a show-cause notice and has been wrongly dismissed from service. The learned Punjab Labour Court No.2, Lahore, recorded the evidence produced by the parties, heard the arguments of the learned counsel for the parties and on the basis of evidence available on the record, including the copy of enquiry proceedings (Exh. P.20), concluded that in the enquiry, the afore-said Munir Hussain Shah was found guilty and the petitioner was wrongly dismissed from service. The Punjab Labour Court No.2, Lahore, therefore, vide its judgment dated 21-1-1998, accepted the grievance petition and directed the petitioner's reinstatement in the service with all back-benefits. The Punjab Labour Appellate Tribunal, Lahore, vide its judgment dated 23-5-1998, while dismissing the respondent's appeal. reduced the award of back-benefits to petitioner to one-half by observing that petitioner had not rendered practical service to the establishment, therefore, he was not entitled to have all the back-benefits.

3. The petitioner is aggrieved of the judgment dated 23-5-1998, passed by the Punjab Labour Appellate Tribunal, Lahore, only to the extent, whereby back-benefits awarded to aim, have been reduced to one half. The respondent is aggrieved of the reinstatement of the petitioner.

4. I have heard the learned counsel for the parties and I have also seen the record.

5. It is submitted by the learned counsel for the petitioner that it stands established from the record, including the evidence, that the petitioner throughout remained jobless, he was wrongly and illegally dismissed from service, the joblessness was trot voluntary, the petitioner was absolutely innocent, in the enquiry conducted by the respondent, only 'the afore-said Munir Hussain Shah was found guilty, both the forums below have held that the petitioner was innocent, he was not involved in the incident in any manner and for this reason, the learned Labour Court correctly directed the petitioner's reinstatement, which was confirmed by the learned Punjab Labour Appellate Tribunal., Lahore, and it, thus, stands established that there was no justification for the issuance of show-cause notice and the petitioner's dismissal from service. It is also submitted that the fact that petitioner remained jobless; was stated by him on oath before the learned Trial Court, which was not rebutted by the respondent, the petitioner remained ready and willing worker to perform his duties but was stopped by the respondent, under an illegal order of removal and dismissal from service, hence, the reduction of the award, of back-benefits of one-half, by the learned Punjab Labour Appellate Tribunal, Lahore, is not sustainable and the petitioner is entitled to full back-benefits, learned counsel, in support of the award of full back-benefits, has placed his reliance on. Divisional Superintendent. N.W.R. Lahore v. Muhammad Sharif, Booking Clerk, N.-W.F.P. Gujrat (PLD 1963 SC 340), Syed Sultan Shah v. Government of Baluchistan and another (1985 SCMR 1394), Wahid Ahmed Kamal v. The Punjab Agricultural Development and Supplies Corporation and 4 others (1985 PLC 360), Allied Bank of Pakistan Ltd. v. Tariq Mehmood Qamar (1980 PLC 106), Allied Bank of Pakistan Ltd. v. Puinjab Labour Appellate Tribunal, and others (1980 PLC 42), Gul Habib v. Federation of Pakistan, through Chairman Pakistan Railways and another (1988 PLC 645). The Province of the Punjab through the Secretary, 'Services and General Administration, Lahore v. Syed Muhammad Ashraf (1973 SCMR 304), General Manager, Layyah Sugar Mills, Layyah v. Saleem Pervaiz Hashmi, Dispenser (1997 PLC 111), Messrs Sethi Straw Board Mills Ltd., v. Punjab Labour Court No.3, Lyallpur and 2 others (PLD 1977 Lahore 71), National Bank of Pakistan and another v. Muhammad Asif Ahmed and 2 others (PLD 1985 Quetta 100), and an unreported judgment dated 25-10-2001 of the Hon'ble Supreme Court of Pakistan, whereby while dismissing Civil Petitions Nos.1833-L of 2001 to 1848-L of 2001, 2127-L of 2001 to 2130-L of 2001 and 3149-L of 2001 to 3153 L of 2('01 and while accepting Civil Petitions Nos. 1878-L of 2001 to 1884-L of 2001, 1905-L'of 2001, 1906-L of 2001 and 3204-L of 2001 to 3208-L of 2001, the hatter. were converted into appeals and the bank authorities were directed , to grant back-benefits to the petitioners therein.

6. The learned counsel for the respondent while opposing the petition of the employee and while opposing Writ Petition No.12846 of 1998 has submitted that petitioner's dismissal orders were correctly issued because the petitioner was in the knowledge of the scandal and he had failed to disclose the same to the superior authorities.

7. Both the forums below have correctly recorded a finding of fact that in the initial proceedings conducted by the respondent himself, only the Accounts Officer of respondent, namely, Munir Hussain Shah was found guilty of fraud/misappropriation/embezzlement and the petitioner was not found involved in the same. The petitioner was merely suspected that he had concealed the transaction and the Punjab Labour Appellate Tribunal correctly gave a finding that petitioner had satisfactorily explained his position to his superiors and that petitioner was not to be blamed for the foul play, in any manner and that he was ousted from service for no fault on his part and that the petitioner deserved reinstatement in service, from the date of unjustified dismissal, as: ordered by the Labour Court. After recording this finding and after confirming his reinstatement from back date, the reduction of the back-benefits to one-half, by the Punjab Labour Appellate Tribunal, was unjustified. No reasons have been given by the learned Tribunal except' that petitioner "had not rendered practical services to the establishment. It stands established on record through evidence that the petitioner; remained jobless throughout the intervening period. This fact was stated by him on oath before the learned Labour Court and was not rebutted by the respondent. The joblessness was not voluntary. In fact he was stopped from working under the illegal order of removal and dismissal from service. He, for no fault of his own, was wrongfully prevented from rendering service to employer. There is nothing on the record to suggest that the petitioner was at fault in any manner whatsoever, or that he was gainfully employed elsewhere during the relevant period, therefore, the Tribunal was in error in reducing the back-benefits to one- half and in not confirming the full back-benefits, as awarded by the learned Labour Court. The judgments relied upon by the learned counsel for the petitioner, which have been referred above, also support this view.

8. In view of the above-mentioned, Writ Petition No. 12846 of 1998 is accepted and the reduction of the back-benefits to one-half, by the Punjab Labour Appellate Tribunal, Lahore, vide its judgment dated 23-5-1998, to that extent, is declared to be illegal and the judgment dated 21-1-1993, passed by the Punjab Labour Court No.2, Lahore, of the petitioner's reinstatement into service and of the award of full back benefits, from the date of his dismissal from service, is restored. Consequently Writ Petition No.16091 of 1998 is dismissed. There is, however, no order as to costs. H.B.T./P-7/L Order accordingly.