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Appeal No. KAR‑672 of 1971, heard on 16th December 1911.

----S. 34 read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. O. 15(5)‑Back benefits Workman's services terminated by Management on his admission of a charge of misappropriation of funds‑No inquiry being held previous to termination of services, Labour Court ordering reinstate ment but withholding payment of back benefits till result of inquiry‑Termination of services being neither illegal, in circumstances, nor workman yet found not guilty of charge back benefits held rightly withheld pending result of inquiry.

Divisional Superintendent, N. W. R., Lahore v. Muhammad Sharif, Booking Clerk, N. W. R., Gujrat 1963 P L C 696 distin guished.

S. 34 Workrnan's services terminated without conducting prescribed inquiry‑Workman, held, entitled to costs of litigation in circumstances.

Wasiullah Qureshi for Appellant.

Ghulam Hasan for Respondent.

Date of hearing: 16th December 1971

This is an appeal against an award dated 25th October 1971, whereby the learned First Sind Labour Court ordered that the appellant should be re‑instated, but the back benefits will depend upon the result of the enquiry, which the Manage ment was entitled to hold. The facts giving rise to the appeal briefly put are these.

2. The appellant was Accounts Assistant of the respon dent. He was alleged to have misappropriated a sum of Rs. 1,000. On the appellant being called upon to explain the shortage of Rs. 1,000, he suggested a number of possibilities as to how the amount may have been short‑deposited in the Bank. He, however, in the end stated that Rs. 100 may be deducted every mouth from his pay. Later on, he stated that he would pay the entire amount in December 1971, failing which he was prepared that the said amount be adjusted towards his Leave Salary. The Management did not accept his explanation and terminated his services. The appellant made an application under section 34 of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance) on 4th January 1971. The learned Court came to the conclusion that admittedly no enquiry was held and, therefore, the order terminating the services of the appellant was bad in law. He ordered that the appellant should be re‑instated and that the Management could hold an enquiry, but the back benefits will depend upon the result of the enquiry.

3. Mr. Wasiullah Qureshi, the leached Representative for the appellant has, filed an appeal confining his arguments only against the point whereby the learned ‑ Court refused to award back benefits. Mr. Wasiullah Qureshi, in the first place, contend ed that the appellant was entitled to back benefits under Standing Order 15(5) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Standing Orders Ordinance). It is not necessary to reproduce sub‑clause (5) of Standing Order 15 of the Standing Orders Ordinance. It will he sufficient to state that under sub‑clause (5)of Standing Order a workman would be entitled to full back benefits only if he was found try be not guilty. In the present case, it cannot be said as to whether the appellant is guilty or not guilty. This will depend upon the result of the enquiry.

4. In the second place the learned Representative for the appellant relied on the case of Divisional Superintendent, N. W. R., Lahore v. Mohammad Sharif, Booking Clerk, N. W. R.. Gujrat (1963 P L C 696). In that case the Supreme Court of Pakistan upheld that the respondent was entitled to the wages from the time that he was dismissed to the date that he was re‑instated. The principle laid down in that case is not applicable to the present case. In that case it was held that the employee was illegally removed from service. In the present case, it cannot be said as to whether the appellant had been illegally removed or not from service by the employer. This will depend upon the result of the enquiry.

5. Mr. Ghulam Hassan, the learned Representative for the respondent, in reply pointed out that under the circumstances of the present case no enquiry was necessary, as the appellant had admitted his guilt. It is not necessary to go into this ques tion as there is no appeal by the Management.

6. The only point that requires consideration is as to whether the appellant is entitled to any costs or not. Mr. Ghulam Hassan, the learned Representative for the Manage ment contended that the appellant having not prayed for costs this Court should not allow the same to the appellant. As to whether the appellant was entitled to any cost or not is a pure question of discretion which has to be exercised justly. Even if the appellant had not prayed for the same, this Court is not stopped from allowing the same to the appellant. Mr. Ghulam Hassan in this connection also contended that the appellant should not be allowed any cost in the circumstances of the present case, as he had himself admitted that he had misappropriated the amount in question. I would not make any observation on this point, as this may affect the enquiry that may ultimately be held by the Management. The short reply to this is that there being no appeal against the award, I have to proceed on the assumption that no enquiry against the appellant was held and that he was entitled to an enquiry. At any rate, any observation as to the guilt or innocence of the appellant will pre‑judge the issue in the enquiry.

7. Lastly, Mr. Ghulam Hassan contended that to award costs to the appellant will amount to giving him an advantage against the Management. There is no force in this c intention. The fact remains that had the appellant not come before the Labour Court, he would not have get an opportunity for fair enquiry. He must have incurred some cost in prosecuting this case before the learned Labour Court. In these circum stances, I would award a cost of Rs. 150.00 to the appellant which is to be paid within one week by the respondent.

Order accordingly.

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