2008 PLC 385 (PLP)

MUHAMMAD MOOSA K. LEGHARI, J.

This appeal arises out of the judgment dated 28-2-2004 passed by Presiding Officer Labour Court No.IV, Karachi in application under section 51 of the I.R.O., 1969.

2. Briefly stated the facts forming the background of the case are that the appellant was dismissed from service on 9-7-1985. He challenged the dismissal by filing grievance petition before the Labour Court which was dismissed. The appellant preferred an appeal before the erstwhile Sindh Labour Appellate Tribunal which was allowed. The appellant was accordingly directed to be re-instated in service vide decision dated 24-4-1998. Besides re-instatement the appellant was allowed 30% back-benefits. The respondent challenged the decision of the Tribunal before the High Court through C.P. No.D-504 of 1988 but the same was dismissed vide judgment dated 24-12-1998. The petitioner then impugned the judgment of the High Court before Supreme Court of Pakistan in Civil Petition No.102-K of 1999 which was also dismissed by apex Court vide judgment dated 9-6-1999.

3. Consequently, the appellant was taken on duty but instead of paying him full back-benefits for the period from 24-4-1988 till the date he was taken on duty viz. 16-6-1999; he was paid 30% back-benefits.

4. The appellant/therefore filed an application before the Sindh Labour Court for recovery of back-benefits amounting to Rs.7,96,000.

5. The respondents filed written statement pleading therein that the applicant had not performed duty during the intervening period as such he was not entitled to any benefits/wages. It was further pleaded that the applicant had been doing job during the said period. The respondents however stated that they were prepared to pay the applicant 30% benefits for the intervening period as per judgment of the Tribunal. It seems that the parties decided not to lead any evidence as no factual controversy was involved.

6. After hearing the parties Sindh Labour Court No.IV, Karachi, ordered that the applicant was entitled to back-benefits not only for the period from 9-7-1985 to 24-4-1988 at the rate of 30% but at the same rate till he was taken on duty viz. 16-6-1999.

7. It was contended on behalf of the appellant that the judgment of the Sindh Labour Court was erroneous inasmuch as that Tribunal has awarded 30% back-benefits for the period when the applicant/appellant remained out of job of respondents. The applicant/appellant was not responsible for the litigation which was initiated by the respondents, and as such neither the respondents were entitled to take benefits of their own fault nor the appellant could be deprived of the benefits, for the reason that the litigation was going on between the parties.

8. Conversely, it was contended on behalf of the respondents that the applicant was not entitled to grant of back-benefits as he has failed to establish that he had not remained gainfully employed during the period from date of decision of Tribunal till he was taken on duty by respondent. In respect of his contention learned counsel for the respondent has placed reliance on the case of Muhammad Bashir and others v. Chairman Punjab Tribunal Lahore reported in 1991 SCMR 2087. Learned counsel for the respondents also at initial stage raised objection with regard to maintainability of appeal but subsequently did not press the said objections.

9. The contentions raised have been considered and the material placed on record has been perused.

10. The facts of the case are not disputed. It is a matter of record that vide decision dated 24-4-1988 the applicant was directed to be re-instated in service with only 30% back-benefits forthwith. It was the respondent who challenged the order of the Tribunal before this Court in C.P. No.D-504 of 1988. However the petition was dismissed vide judgment dated 24-12-1988. It seems that instead of reinstating the appellant in service the respondent impugned the order of this Court in Civil Petition No.102-K of 1999 before the Honourable Supreme Court of Pakistan. The apex Court vide its judgment dated 9-6-1999 dismissed the petition and refused leave. It was only after dismissal of the petition of the respondents by Honourable Supreme Court that the appellant was re-instated by the respondents in service w.e.f. 16-6-1999 vide respondent letter, dated 21-6-1999 in pursuance of his application dated 16'-6-1999. Through this letter of reinstatement the applicant was informed that he was not entitled to full back-benefits.

11. It was abundantly clear that the litigation before this Court as well as Honourable Supreme Court was thrusted upon the appellant by the respondents. It was the respondents who ventured to approach this Court by invoking extraordinary constitutional jurisdiction as well as appellate jurisdiction to seek leave to appeal before the Honourable Supreme Court.

12. With regard to the case law 1991 SCMR 2087 relied upon by the learned counsel for the respondents it may be stated that there is no cavil with the proposition that the back-benefits are to be paid to the workman not as punishment to the employer but to compensate the worker for his remaining jobless on account of being illegally removed from service. No doubt the back-benefits could not be allowed unless it is asserted by the worker that he was not gainfully employed during the pendency of his grievance petition before the Labour Court. However the principles laid down by the Apex Court in the case of Muhammad Bashir (Supra) are hardly applicable in the circumstances of the case. As in the present case, grant or refusal of back-benefits to the applicant was not the real issue. The question of back-benefits during the period of his unemployment pending decision before the labour forums already stood adjudicated, when the dismissal of the appellant was declared to be illegal by Labour Appellate Tribunal, and the appellant was directed to be reinstated in service with 30% back-benefits.

13. After the decision was delivered by the Labour Appellate Tribunal, there was no occasion for the appellant to assert that he was nowhere gainfully employed. Applying dictum laid down by the Honourable Supreme Court in the case of Muhammad Bashir and others (Supra) will amount to putting premium on the evasive conduct of the respondents management. Admittedly it was the management who ventured meaningless litigation upto the Supreme Court, yet opted not to comply with the order of reinstatement passed by the Tribunal. It may not be out of place to mention here that the Tribunal has ordered for payment of 30% back-benefits besides reinstatement of the applicant meaning thereby that the applicant was to be reinstated in service w.e.f. 24-4-1988 however, the appellant was granted 30% back-benefits for the period from the date of his illegal dismissal viz. 9-7-1985 till the date of decision viz. 24-4-1988.

14. Applying the decision of the Tribunal for the period beyond 24-4-1988 i.e. the date of decision would neither be legal nor justified valid, or logical. It seems that for ego satisfaction of someone at the helm of affairs of the respondents-Management, a thoughtless litigation .was commenced, yet the worker was not reinstated resultantly the decision of the Tribunal remained partially unimplemented. Indeed it was the right of management to have agitated the matter upto the level of apex Court in their own wisdom. Nevertheless they were required to re-instate the appellant in compliance with the order passed by Labour Appellate Tribunal. Undisputedly the management Organization failed to comply with the order of reinstatement of the applicant. Obviously for the predicament in which the respondent-Organization finds itself at this stage, it is to blame itself, as it chose to act at its own risk and peril, for which none else, including the appellant could be held responsible. The management was thus liable to pay full wages to the appellant-worker from the date of decision of the Tribunal till the date he was taken on duty.

15. It was quite strange rather dismaying on the part of the respondents to argue in one breath while placing reliance on the case of Muhammad Bashir (Supra) that the applicant was absolutely not entitled to back-benefits; but simultaneously supporting the order of the Labour Court whereby the appellant was granted 30% benefits. To say the least, the management was ill-advised rather misguided to take such disgusting summersault, and to raise implausible and self contradictory arguments.

16. In view of the above discussion, I have arrived at an irresistible conclusion that the order passed by the Labour Court is perverse, capricious, unjust illogical and against the settled principles of law. It is absolutely (sic) appellant filed before Sindh Labour Court No.IV, Karachi under section L.A. No.266 of 2004 unsustainable, and liable to be set aside. The same is accordingly set aside. Consequently the application of appellant filed before Sindh Labour Court No.IV, Karachi under section 51 of the I.R.O., 1969 stands allowed. The respondents are directed to pay the back-benefits to the appellant within four weeks positively. H.B.T./K-23/K??????????????????????????????????????????????????????????????????????????????????? Appeal allowed.