1995 PLP 522 (PLC)

‑‑‑‑S.O. 15(4)‑‑‑Dismissal for misconduct‑‑‑Second show‑cause notice‑‑‑Not a legal requirement‑‑‑Service of second show‑cause notice where adopted and practised customary departure there from, held, would give right to employee to challenge order of dismissal. (c) Industrial Relations Ordinance (XXIII of 1969)‑‑‑ ‑‑‑‑Ss. 25‑A & 38(3)‑‑‑Wrongful dismissal from service‑‑‑Back benefits, held, are allowed for reason that employee was ready and available to serve his employer but was prevented from doing so on account of illegal order‑‑ Employee where claims back benefits, held, must assert that he remained jobless and onus to prove otherwise would be upon employer‑‑‑Employee not urging that he remained jobless during intervening period‑‑‑Labour Court while awarding re‑instatement, wrongly allowed back benefits hence same disallowed by Appellate Tribunal. Muhammad Usman, Court Clerk for Appellant. Asmat Kamal for Respondent. Date of hearing: 3rd May, 1986. The decision dated 24‑11‑1985 recorded by learned Labour Court No. 7, Gujranwala has been challenged whereby the respondent has been directed to be reinstated with full back benefits.

2. The allegation against the respondent was of habitual absence. The periods for which he is alleged to have remained absent on from 8‑3‑1982 to 14‑3‑1982, 4‑5‑1982 to 9‑5‑1982, 11‑5‑1982, 24‑8‑1982 to 27‑8‑1982 and 29‑8 1982 to 30‑8‑1982. The respondent denied the charge; therefore, inquiry was held which culminated in his dismissal. Only by the production of the attendant register allegation could be proved but no such register was produced before the learned lower Court. No copy of the relevant entries of the attendant register can be found on the inquiry file which shows that even during inquiry no such register was produced. The misconduct therefore was not established and the dismissal order consequently was rightly struck down by the learned lower Court. Other objections raised by the respondent except the non- issuance of second show‑cause notice are not forceful. Inquiry proceedings do not show that second show‑cause notice was issued before dismissal order was recorded. No doubt in Order 15, clause IV there is no provision of second show‑cause notice but it has become customary with the appellant to issue second show‑cause notice, therefore, departure from such a provision gives right to the employees to challenge the order of dismissal.

3. However, the learned lower Court has wrongly allowed back benefits to the respondent. He did not urge that he remained jobless during the period of dismissal. Back benefits are allowed for the reason that the employee is ready and available to serve his employer but is prevented from doing so on account of the illegal order of removal from service. In cases where the employees get some job after his dismissal it cannot be said that he is available to serve the previous employer. Back benefits are allowed not as a punishment to, the employer for illegally removing the employee from service but as a compensation to the employee for remaining jobless. Therefore, where the employee claims back benefits he would assert that he remained jobless. After he makes such an assertion the onus is upon the employer to prove otherwise. As a result of the observations made above the appeal is partly accepted and modifying the impugned decision the respondent is disallowed back benefits. A.E./104/Lb.P Appeal partly allowed.