1995 PLP 364 (PLC)

Munib Ahmed Khan for Appellant. MA. Hasan Malik for Respondent. Date of hearing: 28th February, 1995. This appeal arises from the order of Labour Court No. V, Karachi in proceedings under section 25‑A of the IRO whereby respondent Liaquat Ali an Electrician of appellants Pakistan Railways was ordered to be reinstated in service with all the back benefits for a period of about 10 years.

2. The facts of this case are very peculiar. The respondent was granted casual leave for. 10 days by the Railway Department from 18th June, 1981. During this period of 10 days the respondent was arrested by the Police in a case of theft of a cycle. The case proceeded before the Magistrate and he was eventually convicted and sentenced to rigorous imprisonment for three months. He preferred an appeal from this sentence to the Sessions Court. The Sessions Court maintained his conviction and dismissed the appeal. He then went in appeal to the High Court: The High Court on 10‑4‑1983 allowed his appeal on the technical ground that he was convicted on his plea when his examination under section 342 was defective. Pending these proceedings when he was on bail, Railways Department charge‑sheeted him on 16th August, 1981 on the ground of misconduct for remaining absent from duty for more than 10 days. He was then removed form service on 13th August, 1983 after the judgment of the High Court but before his removal he was served with the second show -cause notice.

3. According to the learned Advocate for the respondent although the removal was on 13th August, 1983 he received the order of removal on 20‑12‑1983 and. within three months, he' served the department with his grievance notice on 17‑3‑1984. The learned Labour Court found that since the respondent was removed from service without holding of proper domestic enquiry for misconduct under Order 15(4) of the Standing Orders Ordinance, 1968 he may be reinstated in service with full back benefits from 18th June, 1981 to the date of the decision i.e. 20th December, 1992 for a period of about 9‑1/2 years.

4. It has been argued by the learned counsel for the Railways that even after his release on bail during the proceedings he did not immediately apply for being taken on duty but he waited for 20 days more. That the theft case involved moral turpitude and the acquittal of appellant by the High Court was on technical ground that the examination under section 342 was defective and only his plea was recorded, therefore, although a regular enquiry under Order 15(4) was not held by the Railway and technically he would be entitled to reinstatement, the facts of the case and inordinate delay for which respondent himself was responsible would not entitle him to the equitable relief of the grant of all the back benefits of this period of about 10 years. Therefore while partly maintaining the order of the lower Court for reinstatement I would modify the order and direct that the re‑instatement would be without the allowance of the back benefits to which he is clearly not entitled as he was not kept back from performing his duties by the Railway but he could not report‑for duty on account of the criminal case. The order of the lower Court is modified accordingly. H.B.T./2410/Lb.S Order accordingly.