1977 PLP 326 (PLC)

Re‑instatement‑Back benefits‑Retrenchment order held by Labour Court as wrongful and malicious‑Re‑instatement awarded but no order as to back benefits passed‑Employer avoiding payment of back benefits for intervening period of unemployment of about 4 years Retrenchment order being nullity in law, re‑instatement, in circum stances, held, deemed to have been ordered with back benefits Employer directed to make payment within 15 days failing which recovery to be made as arrears of land revenue‑Industrial Relations Ordinance (XXIII of 1969), S.

51. Irshad Ahmad for Petitioners. Ahmad Fazal for Respondents. Riaz Ahmed and 10 others, the Petitioners were retrenched with effect from 31st December, 1968, by the respondent. The petitioners thereupon filed separate petitions under section 38 of the West Pakistan Industrial Disputes Ordinance, 1968 for their re‑instatement before my learned predecessor.

2. Their application was res1sted by the respondent but my learned predecessor vide his order, dated 30th June, 1972 accepted the petitions filed by the petitioners set aside the order of their retrenchment and ordered their re‑instatement. The respondent filed an appeal before the Honourable Labour Appellate Tribunal and the learned Tribunal vide order dated 30th October, 1972 concluded that the action taken by the appellant against the respondents of terminating their services was male fide and that there was no merit in the appals which were consequently dismissed. The petitioners were consequently re‑instated in January, 1973 but they have not been paid for the period in which they remained jobless on account of the wrongful order or retrenchment.

3. The petitioners have filed the under consideration application under section 51 of the Industrial Relations Ordinance, 1919 praying that the respondent be directed to make payment to them for the period commencing from.

4. The respondents have res1sted this application that neither of the Courts, i. e. this Court and the Labour Appellate Tribunal made any specific; order in respect of any benefits admissible to the petitioners for the period of unemployment and therefore they were not entitled to receive any benefits for the said period. It is also alleged on behalf of the respondent that petitioners have already received their gratuities.

5. Muhammad Hanif and Riaz Ahmed petitioners have appeared on behalf of the petitioners while Abdul Bari, Foreman and Syed Qamar Hussain, Head Clerk have appeared on behalf of the respondent. The facts as have already been narrated above are born out by the testimonies of these witnesses. The point for determination in this case is as to whether the petitioners are entitled to receive wages for the period for which they remained unemployed. My learned predecessor as well as the learned Appellate Tribunal have clearly found that the orders of the retrenchment of the peti tioners were wrongful and malicious. The petitioners were accordingly ordered to be re‑instated. The wrongful and malicious order is certainly a nullity in that eyes of law and therefore re‑instatement of the petitioners is to be deemed to have been ordered with back benefits. The two petitioners who have appeared in this case have stated that the petitioners remained absolutely jobless during the period in question and they did not work for gain elsewhere. This contention has not been rebutted. It is noteworthy that according to letters Exhs. P‑5 to P‑11 which were addressed by the respondent to the petitioners on 8th January, 1973, the petitioners were informed that they were being re‑instated against their original posts at the same rate of pay with immediate effect. They were further informed that regarding the intervening period of unemployment and adjustment of gratuity the decision would be communicated to them on the receipt of instructions from Higher Authorities. It appears that no such instructions have been issued by the Higher Authorities so far. The petitioners, in the light of what has been said above are obviously entitled to the payment of wages for the period they remained unemployed on account of wrongful and malicious orders of their retrenchment.

6. In this view of the matter, it is directed that the respondent should pay wages to the petitioners for the period they remained unemployed on account of the aforementioned wrongful orders of their retrenchment at the rate at which they were being paid immediately before such retrenchment. The gratuity which has been paid to the petitioners may be adjusted from such payments. The needful shall be done within a period of 15 days, failing which the amounts found due to the petitioners shall be recovered as arrears of land revenue. The file shall be put up on 16th July, 1975 to ascertain as to whether this order has been complied with by the respondent.