1981 PLP 941 (PLC(CS))

The next date of hearing is cancelled Parties representatives present. Industrial Dispute No. 8/78 with which respondent; worker was concerned or connected is disposed of on 27th July, 1979 and hence no permission is necessary. Main application is therefore dismissed being infructuous. QADEER MUHAMMAD QURESHI, Presiding Officer, Labour Court No. VI, Hyderabad."

2. On the very next day of the passing of the aforesaid order, the respondent‑Corporation passed an order dismissing from service all the 38 appellants. It is claimed by the respondent‑Corporation that a copy of this order was pasted on the Notice Board of the Corporation on 10th August, 1979 and it appears that these orders were also communicated to ail the appellants. The orders of dismissal were challenged by the appellants by means of grievance petitions under section 25‑A, I. R. O. on the ground that another industrial dispute bearing No. 94/72, with which the appellants were concerned, was still pending adjudication before the learned VIth Labour Court. The grievance petitions of the appellants were allowed by the learned Labour Court on the ground urged by them and all the appellants were ordered to be reinstated in service but payment of back benefits was withheld. The reasons which prevailed with the learned Labour Court in not allowing the appellants back benefits have stated in the concluding paragraph of its judgment which reads as follows :‑ "The applicants had not pressed before me on 8th August, 1979 when the applications under section 47, I. R. O., 1969, against then were dismissed being infructuous due to disposal of Industrial Dispute No. 8/78 on 29th July, 1979 that another Industrial Dispute No. 94/72 was still pending and they were entitled to the protection under section 47(2), I. R. O., 1969 due to that dispute. The respon dent appears to have terminated the services without considering the fact of pendency of Industrial Dispute No. 94/72 in this Court because that dispute of being 1968 most of the applicants may not be even in service at that time and hence the respondent might have terminated the services without such permission under a misconception of law. I therefore do not think it a fit case in which the back benefits be allowed to the applicants Consequently I hold that the termination of the services of the applicants during the pendency of industrial dispute No. 94/72 without permission of this Court under section 47(2), I. R. O., 1969 was illegal and direct the respondent to re‑instate all the applicants in the said applications without back benefits."

3. Aggrieved by the refusal of the learned Labour Court to award them back benefits the appellants have come up in appeals to this Tribunal. This order will dispose of all the 38 appeals.

4. I have heard Mr. Abdul Majeed, the learned Representative for the appellants, and Mr. Mian Mushtaq Ahmad, the learned counsel for the respondent‑Corporation. It was urged by Mr. Abdul Majeed that dismissal from service of the appellants during the pendency of an industrial dispute is expressly prohibited under section 47, I. R. O., and since the respondent‑Corporation, in violation of the mandatory pro visions of the law, thought fit to pass orders of their dismissal, not were the appellants entitled to be re‑instated in service but they were also entitled to back benefits, which have been wrongly withheld by the learned Labour Court. According to the learned Representative, when it is established, as in the instant case, that a workman has been wrongly kept out of service, it is his right not only to be re‑instated in service but, also to awarded back benefits. In support of his contention, the learned Representative relied upon the decision in the cases of Pakistan v. Mrs. A. B. Isaac (P L D 1970 S C 415), Divisional Superintendent, P. W. R. v. Bashir Ahmad (P L D 1973 S C 589) and Textile Corporation of Pakistan v. S. L. A. T. (N L R 1980 (Lab.) Kar. 172).

5. Mr. Mian Mushtaq Ahmad, the learned counsel for the respon dent‑Corporation on the other hand, strongly supported the impugned order of the learned Labour Court on the grounds, firstly, that admittedly the Representative of‑the appellants was present when the order, dated 8th August, 1979 disposing of the applications of the respondent‑Corpora tion under section 47(2), I. R. O., as infructuous was passed, but he raised no objection to the said order and hence, it cannot now be claimed by the appellants that the said order was legally wrong and secondly, that the appellants, in their grievance petitions, have not claimed any back benefits, and as such, they are not entitled to the same.

6. There is no doubt that ordinarily when the termination of service or the discharge of a workman is held to be invalid, the workman is not only ordinarily entitled to be re‑instated in service but he should also be awarded, notwithstanding the repeal of section 36‑E, I. R. O. back benefits, as has been held by a Division Bench of the Karachi High Court, in the case of Textile Corporation of Pakistan, but since there is now no provision on the Statute akin to section 36‑E, I. R. O., and instead the Labour Courts appear to have been invested with a much wider discretion under subsection (5) of section 25‑A, I. R. O., They would have the power, in appropriate cases to withhold back benefits. The 2 decisions of the Supreme Court cited by Mr. Abdul Majeed, the learned Representative for the appellants, are not strictly applicable to the facts of the present cases. In the case of Mrs. Isaac, the main question for consideration before their Lordships of the Supreme Court was whether salary of a Civil Servant was a bounty of the State or the Civil Servant had a right to the same. In the case of Bashir Ahmad the claim was under the Payment of Wages Act and it was held that the term "wages" as defined under the said Act, not only means earned wages but also the wages for the period for which an employee was. wrongfully kept out of service though he was ready and willing to serve the employer. The instant cases, however, are governed by the provisions of subsec tion (5) of section 25‑A, I. R. O., which subsection reads as follows :‑‑ "In adjudicating and determining a grievance under subsection (4), the Labour Court shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case."

7. A bare perusal of the aforesaid subsection indicates that it invests Labour Courts deciding grievance petitions with very wide discretionary powers. Of course, such discretionary powers are required to be exercised in accordance with the established legal principles and not in any capricious or arbitrary manner. One category of cases in which back benefits can be validly denied are those in which the employee has been gainfully employed during the intervening period. This, however, is not the only category of cases in which the back benefits can be denied to the workman. It has, therefore, to be seen whether this is a fit case in which back benefits should be denied to the appellants.

8. As already pointed out, the order of dismissal from service of the appellants was passed by the respondent‑Corporation on the basis of or at least following the order, dated 8th August, 1979 passed by the learned Labour Court, holding that the applications under section 47(2), I. R. O., of the respondent‑Corporation had become infructuous as industrial dispute No. 8/78 had been disposed of. It would thus appear that the respondent‑Corporation was misled by the order of the learned Labour Court and apparently had lost sight of the fact that industrial dispute No. 94/72 was still pending adjudication. It could, therefore, be claimed, as asserted by the learned counsel for the respondent‑Corporation that the Corporation had acted in the bona fide belief that no other industrial dispute was pending at that time. But mere bona fade belief would not save the respondent‑Corporation from paying back benefits to the appellants, to which they would ordinarily be entitled on account of wrong dismissal. There are, however, other circumstances which have to be taken for con sideration. The first is that it is well‑established principle that no person should suffer on account of the mistakes of a Court. The order of the learned Labour Court, elated 8th August, 1979 was clearly erroneous an was passed under the misconception that no other industrial dispute was then pending. The respondent‑Corporation cannot be made to suffer on account of the wrong orders passed by the learned Labour Court. Moreover, as appears from the order, dated 8th August, 1979 the representatives of both the parties were present when the raised orders were passed, but the Representative of the appellants raised no objection to the passing of the said order nor does he appear to have pointed out to the learned Labour Court that another industrial dispute between the parties was pending adjudication. The Representative of the appellants thus appears to have been at least partly responsible for the passing of the erroneous orders and the appellants now cannot claim the benefits on account of the passing of such erroneous orders.

9. It was perhaps on account of the realization that they were to some extent responsible for the passing of the order, dated. 8th August, 1979 by the learned Labour Court, that the appellants have not claimed back benefits in their grievance petitions. In any case, whatever be the reasons on account of which the appellants have not claimed back benefits in their grievance petitions, they are not entitled to award of back benefits.

10. For the reasons discussed by me above, I would concur in the finding of the learned Labour Court that, in the circumstances of the case, the appellants are not entitled to the award of back benefits. I would, therefore, dismiss all the 38 appeals. Appeals dismissed.