1990 PLP 713 (PLC)

‑‑‑Ss. 25‑A & 38(3)‑‑‑Pakistan Railways Personnel Manual, Vol. I, R. 703‑‑ Railway employee‑‑‑Grievance petition against removal from service‑‑ Permission to hold inquiry‑‑‑Back benefits‑‑‑Services terminated for alleged absence from duty for seven years‑‑‑Contention of employee that absence was due to illness and applications with medical certificates had been submitted‑‑ Labour Court came to the conclusion that inquiry should have been held to prove facts regarding illness and submission of applications and ordered reinstatement without back benefits with permission to hold inquiry‑‑‑Order was upheld by Appellate Tribunal with direction that back benefits would depend upon result of inquiry if made. Agha Taj Muhammad for Appellants. Ch. Shabbir Ahmad for Respondent. Date of hearing: 27th June, 1989. The appeals captioned above emerge from the decision dated 12‑4‑1989 recorded by the learned Presiding Officer, Punjab Labour Court No. IX, Multan, whereby Rahim Bakhsh (hereinafter called as the respondent) has been directed to be reinstated in service without back benefits. The respondent has in his appeal claimed back benefits, whereas the Divisional Superintendent, Pakistan Railways, Multan (hereinafter described as the appellant) has challenged the direction of reinstatement. Since both the appeals arise from the same decision, they are being disposed of together through this single judgment.

2. The allegation, for which the services of the respondent were terminated, was of absence for seven years. The absence is admitted, but according to the respondent, he was not guilty of wilful absence since he had fallen ill and thus was prevented from attending to his duties. Show‑cause notice was issued but no inquiry was held. Learned counsel for the appellant has argued that according to rule 703 of Personnel Manual Volume 1, only show‑cause notice is to be issued and it is not obligatory to hold an inquiry. He has also argued that since the factum of absence is admitted by the respondent, he was rightly removed from service without holding any inquiry. The argument has no force. Rule 703 no doubt says that before terminating the services of an employee, whose absence is for five years or more, show‑cause notice be issued, but at the same time it does not say that holding of inquiry is not necessary. In reply to the show‑cause notice the respondent did not admit that his absence was wilful but rather his case, as mentioned above, is that he had fallen ill. It has been further argued that the respondent did not send any application for leave alongwith the medical certificate. The case of the respondent is that he had been sending leave applications. So, if an inquiry had been held, he may have proved this fact. Since the respondent did not make any admission in reply to the charge‑sheet, holding of inquiry was necessary and the learned lower Court has thus rightly held that the respondent was wrongly terminated from service. The learned lower Court has permitted the appellant to hold inquiry.

3. The appeal of the respondent is for setting aside the permission to hold inquiry and for the delivery of back benefits. Learned counsel for the respondent has argued that where the charge is very serious such as embezzlement of money or misbehaviour or indiscipline, permission for holding inquiry may be proper but in cases of absence such a permission invariably is not given. He has cited certain rulings of this Court. No doubt, in the cases of absence permission to hold fresh inquiry has not been given but the present case is of a different nature as the absence is not for a few days or few months but is for seven long years. The respondent cannot be reinstated in service unless he satisfies that his absence was unavoidable and that he had been sending leave applications. So, in these circumstances permission has been rightly given. The learned lower Court has, however, wrongly disallowed back benefits. In cases where permission to hold inquiry is given, the question of back benefits always depends upon the result of the inquiry.

4. As a result of the observations made above, the appeal of the appellant is dismissed and partly accepting the appeal of the respondent, permission to hold inquiry is upheld but so far as back benefits are concerned, it is directed that the question would depend upon the, result of the inquiry, if it is held. If no inquiry is held by the appellant, the reinstatement of the respondent will be without back benefits as at present it does not appear that he had justification to remain absent for seven long years. A.E./689/Lb. P Orders accordingly.