Re-instatement

Relevant clause of appointment letter, stipulated that the offer of appointment was only for a period of 89 days which may be terminable without assigning any reason or might be extended subject to satisfactory performance

Yet another clause revealed that this daily wages employment neither conferred any right of permanent job nor any privilege of regular appointment would be claimed in future whereas another significant clause revealed that the employment could be treated as cancelled in case of non-fulfilment of the prescribed accessories and not appearing for duty on time

Record revealed that the period of work was extended from time to time and ultimately it was discontinued on 13.03.2010 in terms of said clause, however, on application of the petitioner, he was re-appointed on 17.12.2012 under the same terms and conditions of initial appointment letter which too was discontinued on 17.02.2016

Petitioner who, at the time of joining, had accepted all the terms and conditions of his daily wages employment, could not resile from the same at a belated stage

Moreover, it was nowhere mentioned in the appointment letter that it was a job of permanent nature or the same was likely to be permanent in future

Constitutional petition was dismissed, in circumstances.

Appellant, claiming to be a permanent workman, filed grievance application in the Labour Court, for his re-instatement in service with back benefits

Representative of the workman filed statement for disposal of the complaint as not pressed and on the basis of such statement, Labour Court dismissed the complaint as not pressed

Effect

Complaint of workman was dismissed for non-prosecution and not as withdrawn

Workman filed fresh complaint and Labour Court found that after disposal of first complaint, appellant could not file fresh complaint as same amounted to double jeopardy

Validity

Disposal of earlier complaint of the workman, due to his absence and lack of contract with his representative, could not be treated as trial

Section 48(5) of the Sindh Industrial Relations Act, 2013, did not make any distinction between orders passed by Labour Court in proceedings of civil or criminal nature

Orders of Labour Court were amenable to revisional jurisdiction of the Tribunal, irrespective, whether same were passed in proceedings of civil or criminal nature

Consent order for re-instatement of the appellant in service without back benefits, having not been acted upon, case was fit for exercise of revisional jurisdiction by the Appellate Tribunal

Appeal was converted into revision and the impugned order, which was not sustainable in law, was set aside

Case was remanded to Labour Court for disposal according to law.

Employee who was dismissed from service on account of embezzlement, was re-instated in service by the Labour Court with back benefits

Validity

Employee had failed to state that he was not doing any job after termination of by the employers

Neither any affidavit was sworn nor any evidence was led that during about two decades period employee remained unemployed

Back benefits were to be paid to the employee not as a punishment to the employer for illegal removal, but to compensate the employee for his remaining jobless on account of being illegally removed from service

Employee having not stated about his unemployment during his dismissal period, employer was not obliged to lead any evidence in rebuttal

Impugned decision recorded by Labour Court was modified to the extent that employee would not be entitled to back benefits

Appeal was partly accepted.

Civil servant was promoted from post of Sub Divisional Officer to the post of Chief Engineer but subsequently he was demoted

Appeal filed by civil servant against his demotion was allowed by the Service Tribunal

During pendency of appeal an explanation was called from the civil servant which was replied by him and after hearing him, he was exonerated of the charges stated in the letter of the Authority

Authorities subsequently re-opened the case and imposer major penalty of removal from service on, the civil servant in exercise of power under R.12 of ,Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978

Record revealed and counsel for Authorities had also conceded that civil servant was not given any hearing nor any ground was communicated to him in the, show cause notice for taking action against him for his removal from service after his earlier exoneration

Petition for leave to appeal filed by Authorities against order of Service Tribunal whereby appeal filed by civil servant was allowed, was dismissed and leave to appeal was declined as no substantial question of law of public importance was involved therein.

Services of civil servants were terminated without issuing them show-cause notice or holding inquiry, simply on the ground that their services were no longer required

Said civil servants were not alleged to be disqualified, inefficient or corrupt

Even after so-called closure of establishment, Authorities had appointed so many persons, some on monthly basis and some on daily wages

If Authorities wanted to reduce strength of civil servants for the sake of reorganization or for reducing expenditure of establishment, then after closure of establishment new persons should have not been appointed

Such act of Authorities had shown that work in the establishment was still going on and it was wrong to say that there was total closure of establishment

Civil servants who were terminated on ground of being no longer required, having been targeted by Authorities on pick and choose formula deserved to be reinstated

Order of terminating services of civil servants, were set aside and they were ordered to be reinstated in service.

Both civil servant and co-civil servant were acquitted of the charge against them by competent Court and they were reinstated in service

Representation of co-civil servant for improvement of seniority treating his period of broken service as spent on duty was accepted by Competent Authority and his entitlement to get all service/monetary benefits for period of broken service were restored but representation of civil servant for said relief was rejected by Authority without recording any reason for the rejection and review petition filed by him was also rejected

Validity

Both officers were dismissed from service on one and same charge, faced criminal proceedings in one and same case and both were acquitted and were reinstated in service on one and the same consideration, but despite that civil servant was treated differently than co-civil servant in grant of consequential benefits in pursuance of his re-instatement without any reason for the discrimination

No adverse record, penalty or any adverse order was passed by Departmental Authority against civil servant and even if any adverse remarks were on record against civil servant but not communicated to him the same were of no avail and merited to be ignored for the purpose of promotion and premature retirement

In absence of any adverse remarks against civil servant, treating civil servant differently from the co-civil servant would amount to discrimination which was expressly prohibited by the provisions of Constitution of Pakistan (1973) and which said practice was highly deplorable

Constitution of Pakistan (1973), Art. 25.

Grant of service benefits to an employee, who had been illegally kept away from his employment, was the rule, and denial of service benefits to such a reinstated employee was an exception on the proof of such a person having remained gainfully employed during such a period.

Service Tribunal ordered the re-instatement of employs, but employer did not take them on duty thus, deprived there from salary for such period

Validity

Employer had an obligation to honour the judgment of Service Tribunal and reinstate the- employees or if employer had any reservation in not implementing the judgment, then a stay order should have been obtained from the Supreme Court

Employer had not obtained any stay order, thus, judgment of Service Tribunal remained operative

Supreme Court directed that employees be reinstated with effect from the date of passing of judgment of Service Tribunal with all back benefits.

Civil servant dismissed from service after charge-sheeting and holding inquiry against him on charge that he being Director-General Development Authority concerned ordered to release the enhanced amount of compensation to the landowners whose land was acquired

Civil servant was dismissed straightaway without giving him second show-cause notice, supplying him copy of inquiry report and without affording him chance of hearing

Civil servant ordered release of the payment of the enhanced compensation to the landowners complying the decision of the High Court in that respect during period when no stay order against such payment by any Court including Supreme Court was in field and period to file appeal before Supreme Court had also expired

Civil servant having obeyed the orders of the High Court, his act would not come within the purview of misconduct

Civil servant had honoured the orders of the High Court and if there were any, specific directions by the Head Office with regard to withholding of the disputed payment, that had no legal sanctity and said directions or orders were not to be taken as legal orders after the judgments and orders of the High Court to release the payment

Drastic action of imposing major penalty of dismissal from service of the civil servant was declared illegal, unwarranted and based on mala fides

Order of dismissal from service passed against the civil servant was set aside with direction to reinstate him in his own pay scale with all back benefits including pay, allowances and seniority.

Indian Income Tax Act, 1961, S.147(b).

Limitation of four years applies where there is no failure to file return or to disclose fully and truly material facts necessary for assessment

Re-assessment on ground that refund, of excise duty had not been included in original assessment because matter was sub judice

No failure to file return or to disclose material facts necessary for assessment

Limitation of four years applied

Indian Income Tax Act, 1961, Ss. 147, 148 & 149.

Civil servant being a technical hand was fully qualified and having undergone training was found most suitable for the job as per recommendations of the Precision Engineering Department and was properly inducted in accordance with the rules on merits on the basis of test and interview

Civil servant was singled out alongwith two others out of the total strength of two hundred and fifty-nine incumbents and his services were terminated, without issuance of any show-cause notice, personal hearing and assigning any valid reason for the said termination

Validity

Authority in terminating services of the civil servant not only had violated principles of natural justice, but also the law and the rules on the subject

Order terminating services of civil servant was set aside and he was ordered to be reinstated in service with back benefits.

Term "reinstatement" would mean "to reinstate, re- establish or restore person or thing to its former state or conditions".

Civil servant who was appointed as a P.T.C. Teacher by a properly constituted Selection Committee and possessed requisite qualification her services were terminated without any valid reason despite she stood confirmed in her appointment

Authority, defended termination order contending that appointment of civil servant was made on direction of Minister and that appointment orders were issued b"! District Education Officer whereas Competent Authority in her case was Deputy District Education Officer

Validity

Civil servant had performed her duties about a decade after her appointment and she stood confirmed as a P.T.C. Teacher

Authorities had no mandate in law to terminate services of civil servant in that manner even if her appointment was made under orders of Minister as that would not vitiate appointment especially when Minister had been granted powers by Competent Authority vide Notification No.S & GAD, dated 28-2-1989 and Chief Minister in his order had validated appointment of Minister

If any irregularity in appointment of civil servant was committed by Departmental Officer, civil servant could not be punished for said lapse by any rule of equity or justice

Order terminating services of civil servant being absolutely without any lawful authority, was set aside and civil servant was ordered to be re-instated in service with all back benefits.

Mere addressing a letter by Enquiry Officer describing himself to be Enquiry Officer and asking for explanation of civil servant, through a letter, could not be held to be a "show-cause notice" or "charge-sheet" nor reply of civil servant to said letter of Enquiry Officer could be treated equivalent to participation of civil servant in a lawfully initiated enquiry

Order dispensing with services of civil servant on charge of wilful absence from duty could not be protected on mere ground that civil servant had earlier filed his written reply

Enquiry Officer having failed to comply with provisions of statutory rules in enquiry proceedings, order of dismissal from service based on said enquiry proceedings, could not sustain.

Re-instatement-;-Civil servant was removed from service without giving him opportunity of hearing on allegations that he had been guilty of tampering with the record on account of which he was able to get himself absorbed in service on regular basis and was also able to secure his promotion to B-14 from B-8

Allegations against civil servant being of serious nature would have the effect of attaching a permanent stigma and such finding could not be given behind his back Civil servant having been condemned unheard, order removing him from service had rightly been quashed by- High Court

High Court had restored civil servant to service, but had riot allowed Competent Authority to proceed in matter afresh which was not approved by Supreme Court observing that in view of the serious allegations like tampering with record, it was necessary that matter should be properly investigated and a person accused of such behaviour could not be allowed to escape on technical grounds

Supreme. Court ordered that Competent Authority be allowed to proceed in the matter after giving opportunity of hearing to respondent.

Employee was seriously injured while working on moulding machine in the employer factory and remained under treatment for some time

Employee though was recovered, but due to 7% disability of his right hand, employer put off his resumption of duty for one or the other excuse

Labour Court ordered re-instatement of employee with full back benefits but employer did not comply with direction of Labour Court

Order passed by Labour Court being proper should have been complied with by employer.

Reinstatement - Back benefits - Grievance petition against dismissal for misconduct of absence from duty without leave-Workman on receipt of information of serious illness of son requesting for being relieved from duty and for permission to go home but his request not allowed and due to urgency work. man leaving without permission and ailing son dying next day-Labour Court exonerating workman from charge and awarding reinstatement but refusing back benefits on grounds that workman left duty without permission-Leaving duty without permission, in circumstances, held, not deliberate and wilful but was due to urgency duly brought to notice of authorities by worker hence refusal of back benefits not warranted and same allowed by Appellate Tribunal.

Back benefits-Case lingering on for a number of years-Back benefits to extent of 50%, in circumstances, allowed.

Back benefits for period of such employment deducted.

Labour Court holding proceedings -violative of mandatory provisions of S.0.15(4) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968

Alleged fraud, in circumstances, held, not yet proved hence back benefits could not be refused

Appellate Tribunal awarding back benefit also.

S. 25-A-Reinstatement-Back benefits-Petitioner must give date from which he remained unemployed-Statement that "I am unemployed these days" does not necessarily mean that petitioner remained unemployed from date of dismissal-Petitioner on basis of such statement, held, not entitled to back benefits.

Petitioner not stating to have remained unemployed during intervening period-Back benefits disallowed.

S. 25-A - Reinstatement - Back benefits-Petitioner a driver stating that he worked with a Lawyer during intervening period

Neither period of such service nor remuneration mentioned

Petitioner, in circumstances, held, bound to disclose his total earnings before claiming back benefits and would be entitled to difference only.

Ss. 25-A & 38 (3)-Reinstatement - Back benefits – Impugned dismissal order found wrongful-Back benefits are allowed not as a fine to employer but as compensation to worker-Actual loss not proved by worker-No question of compensation, in circumstances, held, would arise.

Ss. 25-A & 38 (3)-Reinstatement-Back benefits - Disallowing back benefits-Petitioner an ad hoc appointee-Services terminated for misconduct-No inquiry held-Labour Court reinstating petitioner but disallowing back benefits on ground of being merely ad hoc appointee-Being ad-hoc appointee, held, not a sufficient ground to disallow back benefits.

Ss. 25-A & 38 (3)-Reinstatement-Back benefits - Dismissal order unjustified-Back benefits are allowed not to punish employer but for reason that petitioner remained out of job not for his fault Petitioner if earned livelihood elsewhere has to account for it to employer before he can get direction for payment of back benefits

Petitioner failing to prove for remaining jobless during intervening period-Labour Court, in circumstances, held, rightly disallowed back benefits.

Back benefits, held, are given to compensate worker for not earning his livelihood and if working gainfully, he has to account for it to his employer-Back benefits, in circumstances, held, rightly disallowed by Labour Court while awarding reinstatament.

S. 17-Lahore Development Authority (Appointment and Conditions of Services) Regulations, 1978, West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 1(4)(c) and S. Os. 12(3) & 15(4)-Lahore Development Authority a semi-autonomous body though having statutory rules of service for employees not working by or under authority of Government

Not outside pale of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968-Terms and conditions in appointment letter that in case of default, neglect or misconduct services terminable without notice violative of S. O. 15 hence void and without any binding force-Senior Draftsman alleged to have absented from duty-Services terminated without enquiry and procedure of S. O. 15(4)-Termination order not mentioning explicit reasons as required in S. O. 12(3)—Labour Court in circumstances, held, rightly awarded

Reinstatement -Industrial Relations Ordinance (XXIII of 1969), Ss. 25-A and 380).

Ss. 25-A & 38 (3)-Reinstatement-Back benefits - Impugned termination order held by Labour Court as unjustified-Petitioner filing affidavit before Labour Court before decision of case that be remained unemployed during intervening period-Such affidavits not controverted by employer-Petitioner in circumstances, held, entitled to back benefits on reinstatement - Order of Labour Court refusing back benefits upset by Appellate Tribunal.

Ss. 25-A & 38 (3) - Re-instatement-Back benefits-Labour Court dismissing grievance petition holding that it could not go into facts of case-Appellate Tribunal upholding order of Labour Court High Court on writ petition setting aside decision with observations that Labour Court could go into facts and remanding case to Appellate Tribunal-Appellate Tribunal reaching conclusion that findings of guilty by Enquiry Officer against petitioner not justified Appellate Tribunal, in circumstances, not deeming proper to allow back benefits while awarding re-instatement.

Ss. 25-A & 38(3)-Re-instatement - Back benefits - Workman dismissed for misconduct - Prosecution and defence evidence balanced-A border line case and Labour Court giving accused benefit of doubt-Re-instated workman in border line case, held, not entitled to back benefits.

Petitioner (workman), in circumstances, held, bound to answer such question.

No provision in Ordinance that only such worker entitled to back benefits who has not been gainfully employed elsewhere during intervening period

Employer can claim set off if worker earned something by serving elsewhere-Dismissal or termination order found wrongful and not sustainable; employee has to be put back in same position in which he was at time of removal and impugned order to be considered as never came into existence

Workman, in such circumstances, held, entitled to back benefits

Labour Court disallowing back benefits on grounds that worker did not state that he was not gainfully employed elsewhere during intervening period

At appeal stage worker (appellant) filing affidavit to that effect

Objection that such affidavit should have been filed or statement made to that effect before Labour Court and such affidavit could not be filed at appeal stage unless case for additional evidence made out

Objection rejected

Held: Appellant was not aware of fact that he could claim back benefits by showing that he was not gainfully employed elsewhere

Dismissal having been found wrongful appellant, held, had to be put back to same position in which he was at time of dismissal and thus was entitled to back benefits which he would have derived but for wrongful dismissal.

Back benefits, claim of—Workman before termination of services neither charge-sheeted nor enquiry held against him nor given opportunity to produce evidence in support of his absence—Workman remaining out of service, held, not for his fault but because his services having been terminated illegally

Workman re instated and allowed back benefits, in circumstances.

Back benefits-Set off-Employer challenging award of back benefits to employee on latter's reinstatement on ground that employee was gainfully employed `elsewhere during period he remained out of job and that his reinstatement was ordered for technical reasons-No finding available that employee was gainfully employed elsewhere and finding of Inquiry Officer silent on such question-Order of Tribunal showing that reinstatement was not for technical reasons but on ground that charges of misconduct not proved for reasons of vagueness of charges and order of termination found illegal

No justification, held, existed for withholding back benefits to employee in circumstances,

Art. 185 (3) and Government Servants (Efficiency and Discipline) Rulers, r. 7-Re-instatement-inquiry report not shown to petitioner Appellant deemed to have not been given reasonable opportunity of defence-Removal order set aside and appellant deemed to have been re-instated in service from date of removal.

Honourable acquittal - Re-instatement - Intervening period -Duty period-Order of compulsory retirement set aside by Service Tribunal with directions for de novo inquiry-Accused exonerated and re-instated as a result of fresh inquiry-Held, entitled to be treated on duty for intervening period of remaining out of service with all benefits including pay-Civil Service Rules, Punjab. Vol. I. Part I, r.7, 3 and Civil Servants Act (LXXI of 1973), S. 16.

- Ss. 4 & 7-Appeal-Re-instatement-Appeal accepted on technical ground without expressing opinion on merits-No material on record to show petitioner having not been under suspension during continuance of inquiry-Petitioner in circumstances not entitled to be re-instated into service automatically on acceptance of appeal particularly when specific prayer as to award of all benefits made in petition for appeal not considered by Tribunal-Close reading of order however not indicating Department having been debarred from re-instating petitioner and paying arrears of salary and such aspect of case being left to be considered by Department, matter left for Department concerned to be dealt with.

S. 25-A and Constitution of Pakistan (1973), Art. 199-Re-instatement-Writ proceedings-Employee dismissed from service for misconduct but re-instated on appeal-High Court on writ petition being filed dismissing same on ground of counsel having conceded matter being fought only as an academic matter for future guidance inasmuch as respondent had already resumed duty and that question of past benefits being only a consequential matter to be agitated before appropriate forum could not be proper subject-matter of writ petition-Held, re-instatement of petitioner to circumstances neither rendered proceedings in High Court infructuous nor made it only academic

Re-instatement having been made pursuant to order of Labour Appellate Tribunal having to be complied with, compliance made under protest acid subject to result of litigation and not conclusive -of matter.[Industrial dispute].

Back benefits -Entitlement for-Discretion of Court-To be allowed or refused in view of circumstances Industrial Relations Ordinance (XXIII of 1969), S. 25-A(5).

Re-instatement-Back benefits- Workman failing to establish his being not gainfully employed elsewhere during period of wrongful ouster-Claim for back benefits rejected—Industrial Relations Ordinance (XXIII of 1969). S. 25-A.

Back benefits-No specific provision in law for awarding full back benefits on re-instatement-Matter taking 3 years before Labour Court and Workman not establishing his being not employed gainfully elsewhere during intervening period Grant of full back benefits, in circumstances held, not quite appropriate.

Back benefits-Claim resisted on plea that workman remained employed gainfully elsewhere during intervening period-Decision, in circumstances, to be given by Labour Court after giving opportunity of bearing to parties.

- Re-instatement-Back benefits - Workmen employed somewhere else during intervening period-Benefit for such period of gainful employment not allowed.

Re-instatement - Dispute regarding re-instatement to be raised within reasonable time.

Re-instatement-Payment of back wages-Workman not making application to Industrial Court promptly-Delay of four months in making application not explained-Workman, in circumstances, held, not entitled to back wages on re-instatement

West Pakistan Industrial Disputes Ordinance (IV of 1968), S. 38.

Back wages for period of unemployment-Ordinarily payable on re-instatement if no ordered otherwise by Industrial Court-Court to give reasons for refusing payment of such back wages. Ordinarily, if a person is re-instated he would be deemed to have been in service all along and, therefore, would be entitles to his wages and any other benefits that he may have otherwise received if the Court desires that in spite of re-instatement the person re-instated is not entitled to back wages, it must state its reasons. In the absence of any reason, the ordinary; rule will prevail, namely, that the applicant will be entitled back wages and benefits.

Dismissal order by District Manager set aside by Industrial Court as bad fn law for want of opportunity of hearing-Re-instatement ordered by Industrial Court, in circumstance; up held-Case-law discussed.