1990 PLP 757 (PLC)

QAISER AHMED HAMIDI, J.‑‑‑The material facts culminating in this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, briefly, arc that the petitioner was appointed as Signaller in Station Master's Group in the year 1966. On 22‑9‑1979, while the petitioner was working as Assistant Station Master at Railway Station, Padidan, he was served with a show‑cause notice on the charge of alleged detention of a train at Railway Station, Padidan without any schedule. It is the case of the petitioner that he was removed from service vide order dated 19‑10‑1979 without holding any departmental enquiry and without affording him a proper opportunity to defend him. He, therefore, preferred a departmental appeal, but no reply was received. In the meanwhile the petitioner filed Civil Suit No. 288 of 1979 in the Court of Senior Civil Judge, Nawabshah, challenging the show cause notice, but the same was dismissed on 13‑3‑1980. The appeal filed by the petitioner before District Judge, Nawabshah, being Appeal No. 26 of 1980, met the same fate and was dismissed or. 27‑7‑1980, treating the petitioner as a civil servant. Consequently the petitioner challenged his order of removal before Federal Service Tribunal. Islamabad, through Appeal No.71‑K of 1980. This appeal was not found maintainable, as according to the Tribunal the petitioner was a workman. The petitioner after adopting the grievance procedure invoked the jurisdiction of Sindh Labour Court No. VII Sukkur, by making an application under section 25‑A of the Industrial Relations Ordinance, 1909, praying his reinstatement in service with full back benefits. The learned Presiding Officer, Sindh Labour Court No. VII, Sukkur allowed the application made by the petitioner, set aside the order of his removal from service and directed his reinstatement. He, however, refused back benefits to the petitioner on the ground that he had dragged the respondents in Civil Court and Federal Service Tribunal. This order dated 30‑11‑1983, was challenged by both the parties before the Sindh Labour Appellate Tribunal, Karachi, but both the appeals were dismissed by the learned Tribunal vide order dated 16‑12‑1986. The orders dated 30‑11‑1983 and 16‑12‑1986 passed by Sindh Labour Court No. VII Sukkur, and Sindh Labour Appellate Tribunal, Karachi respectively by which back benefits were refused to petitioner are the subject‑matter of this petition.

2. The most important point that the learned counsel for the petitioner has been able to bring out is that in case an employee is illegally removed from service, he is entitled to the back wages by way of consequential relief, as if he was actually rendering services. This question was examined by the Supreme Court in well‑known case of Pakistan through General Manager, P.W.R., Lahore v. Mrs. A.V. Issacs, reported in P L D 1970 S C 415, although in relation to a Government servant, and was answered in the following words:‑ "The next question that arises is as to what is to happen in cases where a person is dismissed from service but subsequently the dismissal is held to be unlawful. Should a Government servant be entitled to recover his pay for the full period he was kept out of service? It seems to me that if the dismissal was wrongful, then it was due to no fault of `the servant that he was prevented from serving the State. If he is to be treated by virtue of the declaration given by the Court as being still in service, then I see no reason why he should not also be given by way of consequential relief the salary for the period as if he was actually rendering service. This is the basis on which arrears of pay were allowed to Suraj Narain Anand by the Federal Court. If during this period he has accepted other employment or engaged in other profitable business, then any amount earned by way of salary from such employment or as profits of such business would, of course, have to be set‑off against the salary due for two reasons. Firstly, because a Government servant cannot without the permission of Government serve any other master or engage in any other business and secondly, because on general principles too, a person cannot be allowed to reap a double advantage:" This view was followed in Divisional Superintendent, P.W.R., Karachi v. Bashir Ahmed, reported in P L D 1973 Supreme Court 589, and it was held that a suit for recovery of arrears of salary by way of consequential relief in a case for wrongful dismissal from service was competent.

3. Admittedly, both the Labour Court and the Sindh Labour Appellate Tribunal have come to the conclusion that the removal of petitioner from service was in violation of the mandatory provisions of law. Consequently the petitioner continues to be in the employment of respondents Nos. 1 to 3, in continuation of his past services. The refusal to grant back benefits to the petitioner in such circumstances was against the principles of law laid down by the Superior Courts. In the case of Niaz Ali v. Punjab Urban Transport Authority, Lahore and 3 others, reported in P L D 1983 Lah. 661, Abdul Shakrul Salam, J, (as he then was), observed:‑ "The only question involved is whether the back benefits could be withheld. Once it was held that the termination of the service was wrong or unsustainable, it followed as a natural corollary that withholding of the salary of incidental benefits was also wrongful and without lawful authority. The judgments quoted by the learned counsel for the petitioner support him."

4. This question was again examined by a Division Bench of this Court in the case of Textile Corporation of Pakistan Ltd. v. Sindh Labour Appellant Tribunal and another, reported in 1983 P L C 721, wherein following observations were made:‑ "Regarding the payment of wages for the period the worker was kept out of work, it has been held in P L D 1963 S C 140 in a case under Payment of Wages Act that the mere fact that the employee was not given work by the employer will not derogate his right to receive wages that after the reinstatement of the employee the authority was justified to hold that the claimant was entitled to the payment of full wages for the relevant period. In P L D 1973 S C 589 it was likewise held that where an employee is ready and willing to render service but the employer is not affording him opportunity to render such service, the employee is entitled to full wages unless a deduction is expressly allowed under the Act. that in a suit for declaration of dismissal as illegal and for recovery of arrears of salary by way of consequential relief the claim for the arrears of full salary of a civil servant who was kept out of employment under wrongful order was recognized subject to the only qualification that if during the relevant period he was gainfully employed he shall account for his earning in making claim for the arrears of salary (Pakistan v. Mrs. A.V Issacs) P L D 1970 S C

415. It is true that these decisions are based on Payment of Wages Act or in cases of wrongful dismissal from service but the general principles are of wide application. Therefore, repeal of provisions relating to junior Labour Courts will not have the effect of depriving the workers in cases of wrongful dismissal of claiming the benefits for the period they were wrongfully kept out of work "

5. The Labour Appellate Tribunal Balochistan took a similar view in the case of Senior Vice‑President, United Bank Ltd v, Muhammad Hanif, reported ‑in 1983 P L C 725, in the following words:‑‑ "Mr. Munawar next contended that the back benefits should also not have been allowed by the Labour Court as it has vacated the order of dismissal passed by the Bank only on a technical ground. In fact a person who has not been removed from service in accordance with law is liable to be treated in service and is thus generally entitled to all benefits which would have come to his share, had his services not been terminated illegally. May be in such cases where the workman has engaged himself in some profitable business afterwards, such benefits may be withheld but this would depend on the circumstances of each case which would guide the Court in the exercise of its discretion. However, such is not the position in the instant case. The respondent is continuously out of service. In similar circumstances in Textile Corporation of Pakistan Ltd. v. Sindh Labour Appellate Tribunal and another 1983 P L C 721, it was held by a Division Bench that while reinstating a workman in service on the ground that Enquiry Officer's decision was absolutely illegal, the Court should not deprive him of his legitimate dues. The instant case stands on better footings because here no enquiry had been held at all. Similar view was taken in Allied Bank of Pakistan Ltd v. Punjab Labour Appellate Tribunal etc. (1980 P L C 42) and it was held that the order of reinstatement should be coupled with an order of back benefits unless specific reasons were given for denying the same. In the circumstances of the case, I do not find any cogent reason to deprive the respondent of the back benefits."

6. The question of awarding back benefits was again considered by a Division Bench of this Court in the case of Syed Asghar Imam v. Sindh Labour Appellate Tribunal and 2 others, reported in 1990 P L C 346, and was answered as under:‑ "In our view, this has now been settled in the case of Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others, reported in P L D 1987 S C 447, that when a Tribunal is invested with the power to decide a matter it is obliged to decide properly in accordance with law and not what it considers just and proper. In the instant case, the learned Sindh Labour Appellate Tribunal after having held that the dismissal of the petitioner from service was not sustainable, the back benefits could not have been denied for the reasons found favour with the learned Sindh Labour Appellate Tribunal reproduced in paragraph 13, as admittedly there was no charge against the petitioner of the negligence in the enquiry which resulted in the dismissal of the petitioner. The denial of back benefits to a workman should be with reference to the factum, whether he had earned during the relevant period or, whether he could earn and not with reference to some other fact which may not be germane to the above issue. In other words, there should be nexus between the ground of denial of the back benefits and the factum of actual earning which can be set‑off against the wages/salary due or the factum that the workman could earn, but he failed and neglected to earn. The above Supreme Court case of the Pakistan Railways and the above Lahore case of the learned Judge support the learned counsel. for the petitioners' above contention. Mr. Hamood M. Siddiqui was unable to cite any ruling in which the contrary view might have been taken by any Court." The petitioner has stated in his affidavit‑in‑evidence filed before Sindh Labour Court No‑VII, Sukkur, that he was jobless since the time he was removed from service, and this factual position was not disputed by respondents Nos.1 to

3. No doubt the award of back benefits is discretionary, but discretion has to be exercised on sound judicial principles and not on whims and fancy of an individual. Discretion when applied to Court of justice means "sound discretion guided by law."

7. The only grievance, learned counsel for respondents Nos. 1 to 3 ventilates is that the petitioner in his notice has not asserted that he was not gainfully employed elsewhere during the period he was out of job. It is difficult to be patient with arguments of this kind. Admittedly the petitioner had challenged his order of removal in the grievance notice. The prayer of back benefits flows out of this grievance.

8. The Sindh Labour Court No.VII, Sukkur, and the Sindh Labour Appellate Tribunal, Karachi, have again erred in holding that since the petitioner had dragged the contesting respondents to Civil Courts and Federal Services Tribunal, he was not entitled to back benefits. The petitioner was asserting his legal rights. It was not clear, whether he was a `civil servant' or a `workman'. The Additional District Judge considered him as a `civil servant' and when he approached the Federal Service Tribunal, he was found to be a `workman'. It was C obviously due to this reason that the Sindh Labour Court No. VII, Sukkur, condoned the delay of filing a belated application under section 25‑A of the Industrial Relations Ordinance, 1969. The petitioner could not be penalised for this lapse, which was obviously not intentional. In such a situation the case of Habib‑ul‑Rehman v. Malik Cotton Factory, reported in 1983 P L C 1279, relied upon by Sindh Labour Court No. VII, Sukkur and Sindh Labour Appellate Tribunal, Karachi, was not relevant.

9. For the foregoing reasons, we would allow the petition and declare that the order of Sindh Labour Court No.VII, Sukkur, respondent No. 4, and the Sindh Labour Appellate Tribunal, Karachi, respondent No.5, in respect of refusing to grant back wages to the petitioner for the period he remained out of employment is without lawful authority and of no legal effect and that the petitioner is entitled to the same. However, there will be no order as to costs.

10. By a short order dated 9‑5‑1990, we had allowed this petition and these are reasons for the said order. A.A./G‑208/K Petition allowed.