2003 PLP 316 (PLC)

4. The appellants have approached this Court/Tribunal through four separate appeals, mentioned above wherein they prayed for back-benefits and also striking of the findings given by the Labour Court with regard to issuance of show-cause notices and enquiry etc.

5. Since in all the appeals, a common law point apart, arising out of the same judgment/order of the Labour Court and the common prayer therein, is involved, therefore, all are disposed of by this common judgment recorded in Muhib Ali's appeal bearing No.50 of 2001.

6. The learned counsel for the appellants contended that: (a) when the impugned order of the Corporation/respondent has been set aside declaring it as illegal, the appellants are entitled to the back-benefits; (b) the setting aside of the impugned order means that the appellants remained in service as they were ready to work but were stopped to serve. (c) the appellants did not join any other establishment and remained out of job in the intervening period; (d) the appellants were appointed against the posts which were duly advertised and after following the procedural formalities and passing the test and interview wherein they gained sufficient marks required for their appointment and as such the findings of the learned Labour Court that the respondent can terminate the appellants after meeting the procedural and legal formalities, uncalled for and requires to be set aside. On the other hand, learned counsel for the respondent has contended that the appellants have not raised the contention of back-benefits either in the grievance petition or at the time of arguments before the learned Labour Court and the back-benefits are not mandatory and it is the discretion of the Court to allow such benefits. He further submitted that the grievance petition before the Labour Court was not maintainable as the appellants do not come within the definition of workmen.

7. As regards the plea of back-benefits, the perusal of the record reveals that the impugned order dated 4-2-2000 was suspended by the learned Presiding Officer on 9-2-2000 and remained suspended till 31-3-2000 when the case was transferred from the diary of learned Presiding Officer Swat to the learned Presiding Officer, Peshawar and thereafter till decision of the grievance petition, the order sheets of the Labour Court are silent about this, aspect of the case, though there is an application on behalf of the appellant which has been moved on 9-5-2000 wherein the appellant has categorically stated that no salary for the months of February to April, 2000 have been paid to them despite status quo order passed by the Court on 9-2-2000 but no action has been taken on this application although a notice to the respondent fog 29-5-2000 has been issued. On 29-5-2000, no order to this effect has been taken, which resulted into non-payment of back-benefits/salaries etc. to the appellants since their termination from Service.

8. Now the question arises as to whether the appellants are entitled to the back-benefits or trot. Undoubtedly, the learned Labour Court has declared the impugned order of termination of the appellants as illegal because in terminating the appellants, legal formalities in the form of show cause notice and enquiry into the matter etc. were not observed and the moment the Labour Court having declared the termination of the appellants as illegal, void ab initio, it was incumbent upon it to have allowed the back benefits as a natural corollary because the appellants remained out of service/job without any fault on their part. Besides, there is no evidence to f the effect that the appellants joined any service of the other Finns/Establishments during the period of their termination from service. However, onus to prove such assertion lies solely on the employer and the employers failure to this effect is sufficient proof of the-appellants' plea that they remained out of service. Therefore, it would be unfair and unjust to deny them back benefits. As such the appellants are to be treated by virtue of the declaration of the learned Labour Court dated 9-4-2001 in their favour as being still in service and there is no reason why they should not be granted by way of consequential relief the salaries for the period as if they were actually rendering the service. Accordingly, the appellants are granted full back-benefits.

9. As regards the findings of the learned Labour Court to the effect that if the respondents/Corporation still insist upon the termination of the appellants, then in that case the Corporation shall follow the legal procedure and thereafter can take action. The evidence brought/produced by the Corporation simply shows that the appellants were recommended by the Prime Minister's Secretariat but the appellants did take the stand that the posts were advertised, they appeared in the test and interview and qualified the same. If this be the case, then the respondent/Corporation will have to produce the entire record of test and interview and shall prove that the appellants were lagging behind and were not eligible for appointment against the posts recommended for. But irony of the fate is that no action against those at the helm of affairs has been taken who yielded to the political pressure. The respondent/Corporation must have the moral courage to resist the political pressure in order to make appoints in accordance with merit. Besides, the evidence of the respondent is silent about this aspect of the case as to whether the whole lot of 192 persons recommended by the PM Secretariat stands terminated or only appellants were the victim of scrutiny. In view of above discussion, the point is decided accordingly. In nutshell, all the appeals, four in number (50/2001, 51/2001, 52/2001 and 53/2001) are accepted with costs. H.B.T./10/N.-W.F.P Appeals accepted.