2016 PLP 16 (PLC)

WAQAR AHMAD SETH, J.

Shaukat Ali and another petitioners have filed this petition under Section 51(3) of IRO, 2010 against the order dated 24.10.2013, whereby the Presiding Officer, Labour Court, Haripur dismissed the claim of petitioners.

2. Brief facts are that the petitioners were working as ALMs when on 27.02.2004 an incident occurred, as a result of which one of their co-work, namely, Muzaffar Khan LM-II died due to electric shock. The petitioners were declared responsible for the said incident and ultimately their services were dismissed on 22.06.2004 The petitioners preferred appeals before Federal Services Tribunal, Islamabad and the learned Tribunal after hearing the parties set-aside the order of dismissal and they were reinstated into service and cases were remanded for de novo proceedings. The respondents had also lodged a criminal case against the petitioners in which they earned acquittal. However, through letter dated 12.01.2011 the petitioners were not held entitled for any back benefit. The petitioners served grievance notices upon the respondents/company and also filed a grievance petition under section 37 of KPK, Industrial Relations Act, 2010, which was contested by the respondents. The Presiding Officer Labour Court after recording pro and contra evidence and hearing the parties turned down the petition of petitioners on 24.10.2013, hence, the instant petition.

3. Arguments heard and record perused.

4. Record reveals that the back benefit, which are held back and petitioners are not declared entitled for the same pertains to the intervening period i.e. dismissal from service and reinstatement by Federal Services Tribunal, Islamabad. In the de novo proceedings once again the petitioners are held guilty of charges but no where it has been brought on record that under which law back benefits/wages could be withheld or the same could be imposed as punishment. In Labour Laws/Standing Order Ordinance, 1968, S.O.13(3) no where withholding of benefit is defined as punishment and the same is the position in the non-statutory law of respondents establishment and Civil Servants Act.

5. Since Labour Court has taken cognizance of the case with no objection from the respondents, therefore, Labour laws are applicable to parties. Workers, in Labour matters, placed economic justice while employees placed legal justice. In such matter court has to maintain a balance between legal and economic justice. Moreover, scales of social justice are tilted in favour of weaker section. Industrial Relations Act is basically a beneficial legislation, which provides for protection of rights of labour classes. Object amongst other is to ameliorate conditions of workers. Such a legislation has to be construed liberally and beneficially. A restricted construction of Industrial Relations Act would defeat manifest objective of legislation.

6. Since withholding of back benefits has not been defined as punishment, if charges proved and under the labour law back benefits/wages are only withheld when the employee is found to have been employed in some gainful employment during this period.

7. In the case of Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others reported as 1991 SCMR 2087(a), it has been held as under:- "S.25-A(5).

Back benefits, grant of

Principles

Back benefits do not automatically follow the order of reinstatement where the order of dismissal or removal had been set aside

Burden of proof to establish that the workman was engaged in some gainfill employment during the period he remained out of service was on employer. What will be "just and proper" under clause (5) of section 25-A of the Industrial Relations Ordinance will depend on the question whether the order of removal or dismissal is found to be without jurisdiction, unwarranted and uncalled for or whether it has been actuated partly or wholly on account of the conduct attributable to workman. In the former case he would be entitled to avail of the back benefits while in the latter case, his claim in that regard may not be "just and proper". However, following two principles are established; (a) that back benefits do not automatically follow the order of reinstatement where the order of dismissal or removal has been set aside; (b) as regards the matter of onus of proof in cases where a workman is entitled to receive the back benefits it lies on the employer to show that the workman was not gainfully employed during the period the workman was deprived of service till the date of his reinstatement thereof; subject to the proviso that the workman has asserted at least orally, in the first instance, that he was not gainfully employed elsewhere. On his mere statement to this effect the onus falls on the employer to show that he was so gainfully employed. The reason is that back benefits are to be paid to the workman not as a punishment to the employer for illegally removing him but to compensate him for his remaining jobless on account of being illegally removed from service".

8. No where it has been pleaded that petitioners remained gainfully employed during this period.

9. Even otherwise, the learned Federal Service Tribunal, Islamabad, vide judgments dated 19.08.2010 and 05.01.2010 ordered de novo proceedings to be finalized within four (4) months whereas the same were finalized on 12.01.2011, which is not permissible under the law.

10. In the case of Zaraai Taraqiati Bank Ltd., Islamabad and another v. Aftab Ahmed Kolachi and another 2009 SCMR 129 it has been held as under:- "Dismissal from service

Back benefits

Service Tribunal, on appeal reinstated the employee and allowed the employees to conduct a fresh enquiry and left the question of back benefits dependant upon the result of fresh enquiry proceedings

Service Tribunal further directed that in case of failure of the employers to initiate and conclude the de novo proceedings within a period of four months the employee shall be entitled to all the back benefits

Employee, however, could get the relief of his reinstatement only by resorting to the constitutional petition before High Court

High Court had not barred the employers / bank from conducting the enquiry but had passed directions for completing the enquiry expeditiously preferably within the period of three months and direction to the employee to cooperate in holding the enquiry

Employers/bank, however, could not initiate enquiry proceedings within the period of four months stipulated by the Service Tribunal, as a consequence thereof, they had been directed to make payment of back benefits to the employee

Effect

Held, such directions of the High Court were neither perverse nor fallacious, rather absolutely just and proper as the employers could not be permitted to seek premium for the acts of apathy, stoicism and impassivity, displayed by them

No case for grant of leave to appeal to Supreme Court was, thus made out

Petition for leave to appeal was dismissed".

11. Again in the case of National Bank of Pakistan and others v. Shamoon Khan and others reported as 2010 PLC (C.S.) 608, it has been held as under:- "S.4

Constitution of Pakistan (1973), Art.212(3)

Re instatement

De novo-inquiry

Service Tribunal reinstated employee in service with option to bank employer to initiate de novo inquiry

Validity

Inquiry was not got conducted against employee in accordance with relevant provisions of law and it was found in flagrant violation of the principles enunciated in cases already decided by Supreme Court

Service Tribunal had given fair opportunity to bank to initiate inquiry proceedings de novo within a period of three months but nothing could be done for the reasons best known to it

Judgment passed by Service Tribunal was free from any illegality or infirmity and did not call for interference

Leave to appeal was refused".

12. In the case of Zahooruddin Sheikh v. Pakistan Atomic Energy Commission through Chairman, Islamabad reported as 2007 PLC (C.S. 959, it has been held as under:- "Removal from service

Reinstatement in service

Powers of Service Tribunal to implement its order

Appeal

Order of removal from service passed against appellant was set aside by Service Tribunal directing appellant to be reinstated in service with the condition that Authority would hold de novo inquiry proceedings within a period of six months from the date of judgment of Service Tribunal and that in case inquiry was not conducted and completed within six months, appellant would be entitled to all back benefits provided appellant would file affidavit to the effect that he did not work for gain anywhere during period of his removal from service

Judgment of Service Tribunal was upheld by Supreme Court

As soon as Supreme Court declined to interfere with judgment of Service Tribunal, it became obligatory for the Authority to implement judgment of Service Tribunal and de novo disciplinary proceedings should have been held against appellant according to direction of Service Tribunal in its judgment, but same had not been done by the Authority

Authority had contended that six months period for commencement and completion of de novo inquiry proceedings against appellant would start from the judgment of Supreme Court

Contention of Authority was repelled because doctrine of merger was not applicable in the present case as Supreme Court had not challenged directions contained in the judgment of Service Tribunal and did not give any direction contrary to those contained in judgment of Service Tribunal

Non-implementation of judgment of Service Tribunal within stipulated period of six months had flouted the directions as prescribed therein

Charge sheet, show cause notice and removal order issued after expiry of said prescribed period of six months were void, non-existent and of no legal value

Setting aside order of removal from service passed against appellant, Authority was directed to ensure implementation of order within specified period."

13. In addition to the above, it is also observed from the record that one Abdul Rauf LS-I was also charged along with the petitioners but subsequently a separate enquiry was held and he was exonerated therein and was allowed all back benefits, hence, petitioners are discriminated as well.

14. In view of the above, it is held that time barred de novo proceedings and withholding of back benefits vide the impugned order are illegal and. unlawful, hence, set-aside along with judgment of Labour Court, Haripur, while allowing this appeal, with no order as to costs. SA/349/P Appeal accepted.