2011 PLP 362 (PLC)

Mehmood Abdul Ghani for Appellant. Dad Muhammad Kolachi for Respondent. Dates of hearing: 17th January, 17th February, 5th March, and 12th May, 2011. DECISION JUSTICE (RTD.) ALI MUHAMMAD BALOCH (MEMBER).

This is an appeal under section 55 read with sections 54(3) and 55(4) of the Industrial Relations Act, 2008 filed by the above named, appellant Messrs Engro Fertilizers Limited against the order dated 28-4-2010 passed by the learned Presiding Officer, Sindh Labour Court No.VII at Sukkur, whereby the grievance Application No.12 of 2007 under section 46(3) of I.R.O. 2002 (repealed) of the respondent Rasheed Ahmed Kolachi has been allowed. Brief facts of the case are that respondent was an employee of the appellant company in Sales Department and having been placed/ deputed at various Ware House as in 2006 he was posted at Ware House Shikarpur and thereafter he was transferred to Ware House Karamabad District Khairpur on telephonic verbal orders. When the respondent worker reported for duty at Karamabad District Khairpur, Incharge of said Ware House Mr. Muhammad Kaif has not handed over properly and only the keys were handed over. On 20-12-2006 respondent was transferred verbally to Ware House Daharki and he has relieved the charge and reported for duty at Daharki continuously where he has been paid salary upto February 2007, but in March, 2007 a charge sheet was served upon him for wilful absence from duty more than ten days and further allegation of misappropriation and discrepancies in the stock, as according to the appellant at one stage 2760 Urea Bags found short and at another stage 1450 Urea Bags found short. For both incidents F.I.Rs. were lodged and according to the respondent he has been exonerated by the competent Court of Law. On such allegations according to the appellant enquiry was conducted and respondent found guilty by the Enquiry Officer and has been dismissed from service on 8-3-2007. The respondent after service of grievance notice filed grievance petition bearing No.12 of 2007 before the learned Labour Court No.VII at Sukkur. That according to the appellant, appellant has contested the said matter through his Counsel Mr. Nizamuddin Baloch by filing written statement as well as the said Counsel has also cross-examined the respondent worker at length, but surprisingly thereafter the Counsel and the appellant both disappeared from the learned Labour Court, as such, no evidence led by the appellant company before learned Labour Court and no arguments have been advanced by the Counsel or by the appellant, as such, the learned Labour Court has decided the matter on the basis of evidence available on record and concluded that the respondent worker is entitled for reinstatement in service along with back benefits. The salient feature of the order of learned Labour Court is that though the learned Labour Court has concluded the entirely in favour of the respondent worker, but as an abundant caution the learned Labour Court has allowed the appellant management to conduct the enquiry afresh within a period of three months from the date of the service of the order. Both learned counsel for the parties have submitted their arguments/synopsis in writing and further additional arguments by both the learned counsel. I have gone through the written arguments and record and proceedings of the case. After perusal of the same, I have come to the conclusion as under:

That the appellant company has filed this appeal along with an application for condonation of delay as admittedly appeal was filed on 7-6-2010 and the judgment was announced on 28-4-2010 and whereas according to the appellant itself the appellant had come into the knowledge of the impugned judgment by way of the application/request of the respondent worker has received on 25-5-2010. As per endorsement the appeal is not barred by time, if the matter is considered from the date of the knowledge of the concerned party i.e. the appellant. In view of the additional grounds/arguments submitted by the learned Counsel for the appellant and according to which the impugned order of fresh enquiry has been complied with, which period is condoned. However, the impugned order to the extent of reinstatement and enquiry was complied. As regards back-benefits granted by the learned Labour Court, the law is well-settled. Where reinstatement is conditional to enquiry was to be held back-benefits are not payable. This is the view of the Hon'ble Supreme Court of Pakistan in NATIONAL BANK OF PAKISTAN AND ANOTHER v. PUNJAB LABOUR APPELLATE TRIBUNAL and 2 OTHERS, reported in 1993 SCMR 105 where an earlier decision also of the Hon'ble Supreme Court of Pakistan in case of QADEER AHMED v. PUNJAB LABOUR APPELLATE TRIBUNAL, as reported in PLD 1990 SC 787 has relied and approved. As the respondent worker has again preferred a grievance petition before learned Labour Court against his dismissal dated 15-12-2010. It means that any observation at this stage would jeopardize the case of any party, so in order to maintain the independence of judiciary and authorities of Judges, I am reluctant to go into the merits of this matter at this stage and dispose of the appeal in view of the above observations. Both parties are directed to pursue their remedy in grievance petition pending before learned Labour Court at Sukkur. H.B.T./2/SLT Order accordingly.