1984 PLP 659 (PLC)

Naeem Bukhari for Appellant. Respondent in person. Date of hearing : 6th March, 1984. The facts briefly stated are that the respondent was appointed as a Welder in the appellant‑establishment. It is alleged by him that soon after his appointment, the appellant stopped taking the work of Welder from him and was put to perform the duties of a Peon. He also alleged that on 5th September, 1983, the appellant refused to make payment of his earned wages for the months of August and September, 1983. He served a grievance notice on the appellant with no success. He, there fore, filed an application under section 25‑A, I. R. O., before the 1st Labour Court at Karachi with prayer that he be restored to the post of Welder and for recovery of wages for the month of August, 1983 and onwards. The appellant appeared and his counsel made a statement, dated 31st October, 1983 to the effect that the appellant was ready to take the respondent and he may join his duties with immediate effect. The learned Labour Court on the basis of the statement passed an order directing the re‑instatement of the respondent to the post of Welder with back benefits. The appellant aggrieved by the order only with regard to the award of back benefits to the respondent has come up in this appeal.

2. I have perused the material evidence on the record and have also heard the learned counsel Mr. Naeem Bukhari for the appellant and the respondent in person. The learned counsel for the appellant has raised two‑fold contention ; firstly, that the respondent remained absent from duty for 27 days out of 52 working days in the months of August and September, 1983, and that the appellant had served notice, dated 27th September, 1983 on him for misconduct for habitual absence without leave and that in order to avoid the domestic enquiry he filed a grievance application under section 25‑A, I. R. O., 1969 on 8th October, 1983 in the learned Labour Court; and secondly, that for the deducted or delayed wages he could have his remedy under the Payment of Wages Act before the appropriate forum and, therefore, the order with regard to award of back benefits to the respondent was neither just nor legal. The copy of the notice, dated 27th September, 1983 has been produced. It discloses the details of absence from duty of the respondent, in support of the contention of the appellant. The respondent has said nothing substantial against it except that it is a forged document, the contention which he has not been able to substantiate. It does not appeal to reason that charge of misconduct for habitual absence from duty without leave must have been set up against him only in order to deny him back benefits for a period of two months only. The learned counsel for the appellant has submitted that the appellant has complied with the order of the learned Labour Court with regard to the re‑instatement but since the respondent is facing a charge of misconduct for habitual absence from duty without leave he would not be entitled to the back benefits for such period without having been absolved of the charge against him. He has also urged that for payment of deducted or delayed wages the respondent can have the appropriate remedy only under section 15 of the Payment of Wages Act and the jurisdiction of the learned Labour Court in that respect is barred, I find substance in the argument of the learned counsel for the appellant for the simple reason that it would not be just and proper to award back benefits to the respondent for the period for which he is charged for habitual absence without leave before he is absolved of the charge in the appropriate domestic enquiry. However, he can have his remedy under the appropriate law, if be is so advised. Considering all the facts and the circumstances of case, therefore, I would find that the order of award of back benefits to the respondent would not be just and proper.

3. The result is that the impugned order is modified to the extent that the respondent is not entitled to the back benefits and the appeal is allowed accordingly. A. E. Appeal allowed.