1993 PLP 644 (PLC)

In this Constitutional petition legality of part of order dated 27‑3‑1991 passed by the Punjab Labour Appellate Tribunal, Lahore, declining back benefits to the extent of 50% to the petitioner on his reinstatement in service has been called in question.

2. The facts of the case giving rise to this Constitutional petition are that the petitioner while in employment of the respondents as Telecom Technician, Phones under the Divisional Engineer, Training R.T.T.S., Lahore Cantt was removed from service w.e.f. 5‑5‑1984 through order dated 14‑1‑1985 passed by respondent No.

2. The departmental appeal filed by the petitioner against the said order was rejected by respondent No. 1 through order, dated 17‑3‑1987.

3. The petitioner after serving grievance notice filed grievance petition under section 25‑A of the I.R.O. before respondent No. 2 praying that the order for his removal from service was illegal and he should be reinstated and granted back benefits.

4. Respondent No. 4 tried the said grievance petition after the written statement was filed by respondents Nos. 1 and 2 the evidence of the parties was recorded. After appraisal of the evidence respondent No. 4 through order dated 9‑1‑1991 accepted the grievance petition and ordered for reinstatement of the petitioner in service. As regards his prayer for grant of back benefits it was remarked that the petitioner did not state that he did not earn during the period he remained out of service after removal, therefore, he was found to be not entitled to the grant of back benefits.

5. Against this order both the petitioner and respondents Nos. 1 and 2 filed appeals. The appeal filed by respondents Nos. 1 and 2 was dismissed as barred by time by the Punjab Labour Appellate Tribunal, Lahore through order, dated 24‑2‑1991. It appears that respondents Nos. 1 and 2 did not seek further remedy against the said orders, as such, the same concerning the question of reinstatement of petitioner in service became final. The appeal filed by the petitioner was directed against that part of the order passed by the Punjab Labour Court through which, his prayer for grant of back benefits had been rejected.

6. The Punjab Labour Appellate Tribunal through order dated 27‑3‑1991 partly accepted the appeal of the petitioner. It was held that the finding of the Labour. Court that the petitioner did not state that he did not earn during the period after removal from service was based on misreading inasmuch as he had stated in his evidence that ‑he remained jobless and that no witness of the respondents stated that he was under employment somewhere. It was, however, observed that since the a, remained pending for long six years, therefore, the petitioner was granted back benefits to the extent of 50% the legality of which has been challenged in this writ petition. It may be observed here that respondents Nos. 1 and 2 through W.P. No. 8797/91 challenged the said order regarding grant of 50% back benefits to the petitioner which was dismissed in limine through order dated 21‑12‑1991 passed by this Court. It was observed that since the petitioner had stated that he remained jobless during the period of his dismissal and no evidence was produced by the respondents that he had been engaged in any other gainful employment or profitable business in order to claim set off against back benefits therefore, he was entitled to the said benefits, as such, the order did not suffer from any jurisdictional defect or legal infirmity.

7. The ground on which the Punjab Labour Appellate Tribunal withheld the grant of relief regarding back benefits to the extent of 50% i.e. that the case remained pending for six years in my view plainly is not tenable and does not have the backing and sanction of law. Once it had been found that the order of removal of the petitioner from service was illegal and the same had been set aside and he was reinstated in service which order had become final and it had also been found that he had not been engaged in any other gainful employment or profitable business, there was no basis for alleging set off to the extent of 50% in favour of the respondents against the right of the petitioner to recover the full back benefits. The order of the Punjab Labour Appellate Tribunal for withholding 50% back benefits to the petitioner is not sustainable.

8. Learned counsel for respondents Nos. 1 and 2 faintly argued that the said respondents may be granted permission to reopen the case at departmental level for fresh investigation and inquiry on the same allegations on which the petitioner was earlier removed from service.

9. I am afraid no such permission at this stage can be granted. It appears that the question of reinstatement in service of the petitioner was attempted to be reopened in W.P. No. 8797/91 and it was held in the order passed in the said writ petition that the question of reinstatement was a closed chapter.

10. For the foregoing reasons this writ petition is accepted. Order dated 27‑3‑1991 passed by the Punjab Labour Appellate Tribunal withholding grant of relief of recovery of back benefits to the extent of 50% is hereby declared to be without lawful authority and of no legal effect. The petitioner shall be given full back benefits. There will be no order as to costs. H.B.T./M‑1002/L??????????????????????????????????????????????????????????????????????????????? Petition accepted.