1993 PLP 115 (PLC)

MAMOON KAZI, J.‑‑‑The .petitioner has been ordered to be reinstated in service' of respondent No. 3 with fifty per cent back benefits. Earlier, the petitioner's application filed under section 25‑A of the I.R.O. had been dismissed by the learned Labour Court and the petitioner's dismissal on account of charges of misconduct at the hands of respondent No. 3 was upheld. The learned Appellate Tribunal has set aside the order of the learned Labour Court on the ground that enquiry was held against the petitioner into the charges of misconduct ex parte without justification. It also ruled the written statement filed on behalf of respondent No. 3 out of consideration because the person who signed the statement had not been examined as a witness in the case. Consequently, the order passed by the learned Labour Court was set aside and the petitioner was order to be reinstated in service.

2. The only contention of Mr. Rizwan Ahmed Siddiqui is that after the petitioner had been ordered to be reinstated in service, there was no justification for granting only fifty per cent of the back benefits to him and the petitioner should have been awarded full back benefits. Reliance has been placed by the learned counsel upon the judgment of the Supreme Court in the case of Muhammad Bashir v. Chairman, Punjab Labour Appellate Tribunal, Lahore (1991 SCMR 2087). In this case it has been held by the Supreme Court as follows:‑ "However, two principles are now established under the judgments of this Court: (a) that back benefits do not automatically follow the order of reinstatement where the order of dismissal or removal has been set aside; and (b) as, regards the matter of onus of proof in cases where a workman is entitled to receive the back benefits it lies on the employer to show that the workman was not gainfully employed during the period the, workman was deprived of service till the date of his reinstatement thereto; subject to the proviso that the workman has asserted at least orally, in the first instance, that he was not gainfully employed elsewhere. On his mere statement to this effect the onus falls on the employer to show that he was so gainfully employed. The reason is that back benefits are to be paid to the workman not as a punishment to the employer for illegally removing him but to compensate him for his remaining jobless on account of being illegally removed from service."

3. Mr. Raffat Osmani, learned counsel for the respondent has, hover, contended that the petitioner had been dismissed on account of misconduct committed by him and the mere fact that he was ordered to be reinstated in service for technical reasons does not entitle him to receive full back benefits from the employer. The learned counsel has referred to the following observations‑made by the Supreme Court in the same case:‑ "In our opinion, procedural and technical rules which necessarily impede the ascertainment of the exact and true position of the case should not be strictly enforced; especially in such proceedings, We were inclined, therefore, to set aside the order of the Appellate Tribunal as well as that of the High Court and send back the case, to the Labour Court for allowing the appellant to assert that he had not been gainfully employed during the period that he was out of service. However, on perusal of the order of the Labour Appellate Tribunal we found that on the merits the charge relating to the receipt of illegal gratification by the appellant had been established before the inquiry Officer but the said "learned" Officer arrived at a curious conclusion wherein he exonerated the appellant of that charge but convicted him of other charge (of illegally removing polyester‑‑‑which charge had not been established). Therefore, the appellant obtained benefit of exoneration on the more serious charge of illegal gratification of which he was really guilty, and ultimately also received the benefit of having been wrongly found guilty of the other charge, which was not really established. Therefore, we do not think that the reinstatement' of the appellant can be deemed to be the reinstatement of a workman whose conduct was not partly responsible for his removal from service. He could, therefore, be refused arrears under clause (5) of section 25‑A, as discussed above. This appeal too is, accordingly, liable to dismissal."

4. We would like to point out that nothing can be spelled out from the circumstances of the case to indicate that the allegations of misconduct had been fully established against the petitioner. Even the domestic enquiry does not appear to have been properly conducted by the employer as is evident from the judgment of the learned Appellate Tribunal. In the circumstances of the case, we are of the view that there was no justification for withholding of qty percent of the back benefits from the petitioner when the learned Appellate to Tribunal ordered his reinstatement in service. It is also pertinent to point out that no reason for allowing only fifty per cent of the back benefits to the petitioner has been assigned by the learned Tribunal. We are, therefore of view that the observations made by the Supreme Court which have been earlier reproduced in this judgment are fully attracted to the case.

5. In the result, we remand the case to the learned Tribunal consideration of the question in regard to back benefits afresh in the light of the judgment of the Supreme Court referred‑to in this judgment. The parties are left to bear their own costs. H.B.T./I‑212/K Order accordingly.