1991 PLP 548 (PLC(CS))

3. The brief facts of the case are that the respondent was admittedly a workman working with the appellants when he was charge-sheeted on 23-11-1985 for misconduct. Mr. Mehboob Alam was appointed as Enquiry Officer. After domestic inquiry he was dismissed from service. The respondent, after service of grievance notice, filed grievance petition before the Labour Court. The learned Presiding Officer of Labour Court held that the Enquiry Officer appointed by the appellants was not independent person as according to the admission of Mr. A. Salim, Managing Director of the appellants:-- "Mr. Mehboob Alam had brought the case of the applicant before me. He had also invited my attention to the previous record of the applicant. I had appointed him as the Inquiry Officer. He was made Inquiry Officer because he knew about the facts:" He has also referred to the admission of Mr. Mehboob Alam to the following effect:- "It is correct that at pages Nos. 7 and 8 of Exh. A/6, there are no signatures of the applicant. The signatures of the applicant find place on Exh-A/4 on the rest of the pages. There are only two pages on which the statements of defence witnesses were recorded. It is correct that the applicant had put signatures on those sheets of papers in which he was present all along." In his opinion the enquiry was neither conducted by independent person nor was conducted in fair and proper manner. Standing Order 15(4) contemplates independent inquiry. The person who himself made complaint against the accused person cannot be considered as independent Enquiry Officer. I find nothing wrong with the view taken by the learned Presiding Officer with regard to the illegality of the enquiry proceedings.

4. Mr. Mohammad Khursheed Ahmed Siddiqui, learned Advocate for the appellants and Mr. Shafiq Qureshi, learned counsel for the respondent admitted that after impugned order fresh inquiry was held against the respondent and after that inquiry he has again been dismissed. Admittedly the respondent has filed Grievance Petition No. 414 of 1987 before the learned Presiding Officer, Sindh Labour Court No. III, Karachi, which is sub-judice there. As such the appeal filed by the respondent for restraining the appellants from holding inquiry has become infructuous and is dismissed as such.

5. The only question that requires consideration is whether the respondent is entitled to back benefits awarded to him by the learned Labour Court when he is found guilty in the fresh inquiry and has been dismissed from service and grievance petition against that dismissal is pending before the learned Labour Court. Mr. Khursheed Ahmed Siddiqui had relied upon two decisions of this Tribunal. In the case of Yar Muhammad v. Sindh Labour Court No. V and another 1980 P L C 86 wherein this Tribunal observed that `mere setting aside of the charge-sheet cannot amount to absolving the delinquent worker of the alleged act committed by him Besides, a fresh domestic enquiry having been ordered, it would be prejudicing the issue to allow the payment of back benefits to the delinquent worker until the result of the fresh enquiry is known.' He has also relied upon the case of Workers Union v. Indus Chemicals & Alkalis Ltd., Karachi 1972 P L C 220, wherein reinstatement was ordered and dismissal due to misconduct was set aside for want of enquiry and violation of principles of natural justice. Payment of back dates in circumstances, was held to depend upon fresh enquiry to be conducted by the management. In the said case the learned Tribunal referred to the observations of Hon'ble Supreme Court in the case of Glaxo Laboratories (Pak) Ltd. 1962 P L C 362, which is as under:- "The rights of a workman are, by no means, improved by "misconduct" of which he may be guilty and for which he may be liable to be dismissed by the Company after due enquiry. If a direction is given for reinstatement of such a workman an account of want of due enquiry preceding his dismissal, it does not destroy the right of the Company after reinstatement, to proceed against him, in accordance with the mode permitted by law."

6. Mr. Shafiq Qureshi, on the other hand, relied upon the decision of the learned Division Beach of Lahore High Court in the case of Muhammad Sharif v. Chairman, Road Transport Corporation 1976 P L C 744, wherein it was held that `where workmen were wrongfully removed from service and later on reinstated, they were entitled to remuneration for the period of absence from duty by reason of their wrongful removal from service: He has also relied upon the case of Niaz Ali v. Punjab Urban Transport Authority, Lahore and 3 others P L D 1983 Lahore 661, wherein learned Single Judge of Lahore High Court held that `where termination of service was adjudged wrong and unsustainable by Labour Appellate Tribunal withholding of salary or incidental benefits were also wrongful and without lawful authority.' I may be pointed out that in both the case-, no fresh enquiry was ordered.

7. Keeping in view the circumstances of the case the fact that after fresh enquiry on the directions of the Labour Court the respondent has again been found guilty and has been removed from service which order is sub-judice before the learned Labour Court in a grievance petition and considering the legal position as discussed above, in my opinion, under the circumstances of the case it will be fair and proper to withhold payment of back benefits to the respondent pending the decision of the grievance petition by the learned Labour Court. The back benefits are admittedly deposited in this Tribunal and as such none of the, parties would be prejudiced by this order.

8. With the above observations both the appeals are dismissed. M.Y.H./1551/Lb.S ????????????????????????????????????????????????????????????????????????????? Appeals dismissed.