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Appeals Nos. SUK-85 to 89 of 1984 decided on 7th August. 1984.
--S. 25-A-Resinstatement-Back benefits Burden of proof-Termi nation of service found illegal and improper-Delay in decision on grievance petition due to adjournments obtained by parties-Not a good ground for withholding 50% back benefits.
----S.25-A-Reinstatement-Back benefits-Impugned dismissal order' found illegal Petitioner throughout asserting right of back benefits Onus for proof that petitioner remained gainfully employed elsewhere upon employer-Such proof not adduced by employer-Withholding of back benefits by Labour Court, in circumstances, held. improper and illegal.
Muhammad Yaseen v. Pakistan Railways 1984 P L C 532 and Niaz Ali-v. Punjab Urban Transport Authority, Lahore and others P L D 1983 Lah. 661 ref.
Hassan Hameedi for Appellants.
Mammon Kazi for Respondents.
Date of hearing: 23rd July, 1984.
This common order disposes of Appeal Nos. SUK-85 to 89 of 1984 arising out of the common order, dated 29th February, 1984 passed by tire learned labour Court No. VJI at Sukkur whereby the appellants were rein stated but were awarded back benefits only to the extent of 50%.
2. Briefly stated the facts leading upto the appeals are that the appel lants are employees of the National Bank of Pakistan, the respondents herein. They were charge-sheeted for misconduct and were dismissed from service, vide dismissal order, dated 18th October, 1981 without holding of a domes tic enquiry. They preferred departmental appeals which were also rejected. They then served grievance notices on the respondents and their grievance having not been redressed, they filed applications under section 25-A, I.R.O., 1969, before the learned Labour Court. The learned Labour Court dismissed their applications on the sole ground that they were not workmen within the meaning of section 2 (i) of the Standing Orders Ordinance, 1968. They preferred appeals to this Tribunal and this Tribunal vide its order, dated 25th January, 1.984 set aside the order of the learned Labour Court holding that they were workmen within the meaning of section 2 (i) of tire Standing Orders Ordinance, 1968, and sent back the cases to the learned Labour Court for decision on merits. The learned Labour Court vide its order dated 29th February, 1984 ordered their reinstatement on grounds that the charge-sheet served on them was time-barred and that admittedly no domestic enquiry was held, but awarded back benefits to them only to the extent of 50%, finding that they had also contributed in delaying the disposal of the cases by making applications for adjournments. Aggrieved by the order of the reinstatement the respondents tiled appeals before this Tribunal and this Tribunal vide its order, dated 10th April, 1984 dismissed their appeals in limine.
The appellants aggrieved by the order of refusal of award of back benefits to them to the extent of 50%, have come in these appeals.
3. I have perused the material evidence on record and have also heard the learned counsel for the parties, Mr. Hassan Hameedi for the appellants and Mr. Mamoon Kazi for the respondents. The reason advanced by the learned Labour Court for withholding back benefits of the appellants to the extent of 50%, while ordering their reinstatement is to the effect that the appellants also contributed to the delay in the disposal of the cases by obtaining adjournments. I have examined the order-sheets in the cases and I find that the respondents are also equally and in some of the cases more responsible for obtaining such adjournments and I am not impressed by the reason advanced by the learned Labour Court in that regard. However, such a reason has not been considered as a good ground at any time for withhold ing of the back benefits of the workman when his order of dismissal o termination of services has been found to be illegal and improper. The learned counsel for the appellants has also contended firstly, that since the learned Labour Court held the dismissal order illegal and improper for the reason that admittedly no domestic enquiry was held and even the charge- sheet served on the appellants was time-barred, it followed as a natural corollary that order of withholding of the back benefits to the extent of 50% was also improper and illegal, and secondly, that the burden of proof that the appellant was not entitled to the back benefits as a result of having been gainfully employed elsewhere during the intervening period lay on the employer to prove affirmatively that-be was so employed and, therefore, was not entitled to back benefits. I find sufficient force in both of his conten tions. There is no doubt that the order of reinstatement of the appellant was challenged in appeals in this Tribunal and the appeals were dismissed in limine. t, therefore, reached its finality and since the order of the dismissal was found illegal and improper, it would follow as a natural corollary that the order of withholding of back benefits of the appellant to the extent of 50% was also improper and illegal. It is not the case of the respondents that the appellants were gainfully employed elsewhere during the intervening period. The appellants asserted right from beginning to the end that they were entitled to back benefits and the respondents have failed to discharge their burden of proof which heavily lay on them that they were gainfully employed elsewhere during the intervening period and, there fore, were not entitled to back benefits. These issues were also examined b this Tribunal in the case of Mohammad Yaseen v. Pakistan Railways (1984 P L C 532) and this Tribunal relying on the unreported judgment of the Sind and Baluchistan High Court at Karachi, dated 2nd September, 1971 in M. A. No.167, the decision in the case of Niaz Ali v. Punjab Urban Transport Authority, Lahore and others (P L D 1983 Lah. 661) and the unreported Judgment of the Hon'ble Supreme Court of Pakistan passed on 23rd October, 1983 in C.P.S.LA. No. K-254/83, for elaborate reasons held that since the order of termination of service of the appellant was illegal and improper as a natural corrollary the order of withholding of back benefits in the circumstances was also improper and illegal, and that the initial burden to prove that the appellant was gainfully employed elsewhere during the intervening period was on: the employer and not on the workman to deprive him of the back benefits to which he would be otherwise entitled as a result of an illegal and improper order of termination of his services. The learned counsel for the appellants has also relied on the abovementioned decision of this Tribunal which is again based on the decisions of the superior Courts, the High Courts of Sind and Baluchistan and the Lahore High Court as well as the Hon'ble Supreme Court of Pakistan. I would, therefore, find that as a natural corrollary the order of withholding of back benefits of the appellants to the extent of 50% in the circumstances was neither proper nor legal, moreso when the learned Labour Court has not assigned any cogent reason for withholding of such back benefits as already pointed out by me above. The impugned order passed by the learned Labour Court, therefore, is liable to be set aside.
4. The result is that the impugned order passed by the learned Labour Court is set aside and the appellants are awarded full back benefits and their appeals are allowed accordingly.
A. E.
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