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Appeals Nos. LHR‑371 and 372 of 1984, decided on 11th November, 198.

‑‑ R. 337‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38 (3)‑Re‑instatement ‑ Back benefits ‑ Decision as to back benefits in respect of Railway employee‑To be taken by competent authority‑Whether or not employee remained un employed during intervening period to be decided by competent authority‑Order of Labour Court holding petitioner employee not entitled to back benefits set aside by Appellate Tribunal enabling competent authority to decide whether petitioner remained un employed during intervening period.

S. A. Latif for Appellants.

Syed Intisar Hussain for Respondent.

Date of hearing : 6th November, 1984.

The two appeals captioned above challenge the correctness of the decisions dated 13tb May, 1984 passed by the learned Presiding Officer, Punjab Labour Court No. 2, Lahore to the extent it disallowed back benefits to the appellants.

2. Two reasons have been given by the learned lower Court for disallowing back benefits to the appellants. One is that on technical ground they were re‑instated and the other is that they did not say that they remained unemployed since the date of their dismissal. So far as the first ground is concerned, it is wrong that due to technical mistake the appellants succeeded. In the beginning a fact‑finding‑enquiry was held and there after show‑cause notice was given. Thereafter, no enquiry was held giving opportunity to the appellants to‑defend themselves. It is the discretion of the employer, according to disciplinary rules of Railways, to bold or not to hold enquiry. Since the finding of the learned lower Court is that holding of enquiry was necessary, the appellants were condemned unheard and this was not merely a technical defect. When the well known rule of audi alteram partem is not followed, the action taken is not sustainable. So far as the question of proving that during the period of dismissal the employee concerned was not gainfully employed is concerned, the law is slightly different with regard to Railways employees. There is a rule 337 of Personnel Manual Vol‑I, according to which, the concerned authority has to decide whether the employee concerned had or had not remained unemployed. Question of such an enquiry arises after the Labour Court has directed the re‑instatement of the employee. There being no such provision in Labour Laws, so the Labour Courts have to decide while directing the re‑instatement of the worker whether he is or is not entitled to back benefits. Since the learned lower Court has held that the appellants are not entitled to back benefits, the respondent cannot go into the matter under rule 337. It is, therefore, necessary to set aside this finding of the learned lower Court that the appellants are not entitled to back benefits, so that the respondent could under rule 337 decide the point.

3. As a result, the appeals are accepted and modifying the impugned decisions of the learned lower Court it is directed that the respondent shall under rule 337 decide the question of entitlement of the appellants to back benefits. However, annual increments which the appellants would have, but the dismissal orders earned, shall be added for the future while fixing the pay of the appellants. If the railways authorities decide that the appellants are entitled to back benefits, they will be entitled to arrears of annual increments also besides other benefits.

A. E.

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