1992 PLP 1256 (PLC(CS))

This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No. VII at Sukkur, dated 1-11-1989, whereby he allowed grievance petition of the appellant and ordered his reinstatement without back benefits. The appellant has filed this appeal against the order withholding his back benefits. The respondents have also filed cross-objection and have challenged the order of reinstatement. This order will dispose of the appeal as well as the cross-objections.

2. Mr. Usman Ghani Rashid, learned counsel for the appellant has sent his `Written Arguments' which have been perused. Mr. Hussain Adil Khatri, learned counsel for the respondents has argued in person. I have also gone through the record and proceedings of the case.

3. The brief facts of the case are that the appellant was working as `Mobile Credit Officer' with the respondent-Bank when on 13-2-1984 he was charge-sheeted for certain acts of misconduct. He was removed from service on 23-1-1985 alongwith certain other officers. The appellant filed a `Civil Suit' before the Court of Senior Civil Judge, Sukkur, which was decreed but respondent filed appeal before the District Judge, Sukkur. The decree was set aside by District Judge and the Revision Application filed before High Court was dismissed by the Hon'ble High Court by order dated 2-11-1988. Thereafter the appellant gave grievance notice to the respondents on 4-11-1988. Failing to get any redress he filed grievance petition before the learned Labour Court. The respondents resisted the _ application on various grounds including ground of limitation and also that the appellant was not a 'workman'.

4. The learned Labour Court ordered reinstatement of the appellant mainly on the ground that other officers who were removed alongwith the appellant namely Hamid Ali Shah, Atta Muhammad Manghi and Jaffer Abbass had been reinstated by the respondents. It may also be pointed out that two other Officers namely Waliullah and Syed Tahir Zaidi had also filed grievance petitions before learned Labour Court. By the impugned order they were also reinstated alongwith respondent. But they have net filed any appeal against the order of withholding of their back benefits. Mr. Hussain Adil Khatri, learned counsel for the respondents, candidly conceded that he will not press his cross-objections if back benefits are not allowed to the appellant, otherwise he will press for dismissal of grievance application on the ground of limitation.

5. As pointed out above the main ground weighing with the learned Labour Court while allowing grievance petition was that the other persons who were removed by the respondents on similar charges had been reinstated. The learned Labour Court has not, in clear words, given any finding as to whether the removal was illegal but decided the case because certain other Officers, who were removed, had been reinstated by the respondents or by the .learned Labour Court.

6. The learned counsel for the appellant has relied upon certain decisions of this Tribunal and other superior Courts where back benefits were granted on reinstatement but in all these cases the order of removal was held to be illegal or wrongful, but I have already pointed out there is .no specific finding of the learned Labour Court that the order of removal of appellant was wrongful or illegal. Mr. Hussain Adil Khatri, on the other hand, relied upon the decision of this Tribunal in the case of Divisional Superintendent, Pakistan Railways and 2 others v. Gul Hassan and 2 others 1987 PLC 479 where this Tribunal disallowed back benefits where employer was dragged by employee first before Civil Court and then before Services Tribunal instead of coming to Labour Court. In the instant case also the appellant first went to Civil Court, where suit was decreed but the decree was set aside by District Judge. Then he went to High Court in Revision which was finally dismissed on 2-11-1988. The question as to in what cases the. workman is entitled to back benefits has been discussed by their Lordships in the case of Qadir Ahmed v. Punjab Labour Appellate Tribunal PLD 1990 SC 787 wherein their Lordship held:- "As regards the question of entitlement of back benefits the established proposition is that where the order of dismissal or removal has been set aside unconditionally, found to be without jurisdiction and uncalled for, necessarily the back benefits have to be paid. It has to be paid under authority of the Tribunal or person setting aside the order of dismissal and if no such order is passed then under the orders of the competent authority in the matter. Where full relief is not granted, the proper course in the absence of express order to that effect is to seek appropriate redress either under the Industrial Relations Ordinance or under the Civil Servants Act, as the case may bet Where, however, the order of reinstatement is conditional, as was in the case of appellant, that an enquiry could still be made into his conduct and his conduct' was considered such as to call for a departmental enquiry, then the entitlement with regard to back benefits had necessarily to wait till the final determination with regard to his conduct. If he was found at fault then the competent authority could justifiably deny him, part of the back benefits. Mere setting aside of the order of dismissal , irrespective of whether it is set aside conditionally or unconditionally would not, as claimed by the appellant, entitle the affected functionary to claim arrears of pay and back benefits. Similarly the continuance of the enquiry on the same charge would also disentitle him, till the conclusion of the enquiry and the determination of the responsibility, to back benefits." Their Lordships further held that the Labour Court has got powers to pass orders with regard to back benefits as may be just and proper in the circumstances of the case.

7. In my opinion, as the appellant has been reinstated on compassionate grounds and in the interest of justice and equity as other officers' who were removed on similar charges had been reinstated and in view of the fact, that he consumed about four years in pursuing his case in wrong forum, the learned Labour Court has rightly withheld the back benefits. The employee cannot burden an employer with payment of his back benefits when he has been dragging his employer in wrong forum for such a long period. In my opinion. therefore, there ' is no case made out for awarding back benefits to the appellant and the appeal with regard to back benefits is dismissed.

8. As the appeal of the appellant for back benefits is dismissed the cross objection filed by the respondents are also dismissed as not pressed as per statement of Mr. Hussain Adil Khatri as pointed out above. M.Y.H./1780/Lb.S Appeal dismissed.