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Writ Petition No. 1393/S of 1983, heard on 7th December, 1985.

---S. 25-A--Penal Code (XLV of 1860), S. 24--Grievance petition--Awarding of back benefits--Requirement--"Wrongful gain"--"Wrongful loss"--Meaning of--While maintaining order of re-instatement of employee Labour Appellate Tribunal withholding 'back benefits' to employee during period of dismissal--Employee was found not to have taken away or misappropriated property of employer--Such property remaining on premises of employer--Employee by not taking away property from premises of employer, held, would not cause wrongful gain to himself or wrongful loss to employer.

Muhammad Munir and others v. Sikandar and others PLD 1974 SC 139 and Habib-ur-Rahman y. Malik Cotton Factory 1983 PLC 1279 ref .

---Art. 199--Industrial dispute--Constitutional jurisdiction, exercise of--Tribunal having jurisdiction to decide matter, held, could decide same rightly or wrongly--Order of re-instatement was to be coupled with order of payment of back wages unless specific reasons for not allowing same were given--Employee willing to render service, if illegally kept out, was entitled to full wages unless deduction was allowable in accordance with law--Where reasons for disallowing 'back benefits' to employee appear not to be genuine but arbitrary, High Court in exercise of Constitutional jurisdiction would quash such order and allow 'back benefits' to employee in circumstances.

Allied Bank of Pakistan v. Punjab Labour Appellate Tribunal etc. 1980 P L C 42 and Divisional Superintendent, P.W.R., Karachi v. Bashir Ahmad P L D 1973 S C 589 rel.

Ch. Nazeer Hussain for Petitioner. Ch. Altaf Hussain for Respondents. Date of hearing: 7th December, 1985.

--Faiz Muhammad Khan was employed as a Mechanic in the G.T.S. Bahawalpur. He got issued seven electric bulbs without obtaining the signatures of the Foreman/Works Manager and also faked the signatures of the Foreman on Old Parts Certificate and caused a loss of Rs.42 to his employer. He was charge-sheeted and after an inquiry was dismissed from service on 19-3-1980. He served a grievance notice to the respondent and subsequently, filed a grievance petition as envisaged under section 25-A of the Industrial Relations Ordinance, 1969. The learned Punjab Labour Court No. 9, Multan ordered his re-instatement in service with back benefits on 23-9-1982. The respondent lodged an appeal with the Punjab Labour Appellate Tribunal, Lahore, who maintained the order of his re-instatement but partly accepted the appeal and modified the order of the Punjab Labour Court No. 9, Multan by declining to award back benefits to the petitioner.

2. The petitioner has consequently instituted this constitutional petition for the quashment of the order of the learned Punjab Labour Appellate Tribunal, Lahore for having the full back benefits on his re-instatement in service.

3. It has been pointed out by the learned counsel for the respondent with reference to Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 139 and Habib-ur-Rahman v. Malik Cotton Factory 1983 P L C 1279 that the Tribunal has the discretion to allow back benefits on re-instatement and to allow or refuse back benefits or to decide rightly or wrongly is within the province of a Tribunal and cannot be interfered with in a constitutional petition.

4. The question of awarding the back benefits is a delicate one and depends upon the circumstances of each case. It is evident from the orders of the Punjab Labour Court No. 9, Multan and the learned Punjab Labour Appellate Tribunal, Lahore that the bulbs were fixed in the premises of the G.T.S. bus stand by the petitioner and they were not taken away or misappropriated. In accordance with the definition of "dishonestly" as embodied in section 24 of Pakistan Penal Code, 1860, he had not caused any wrongful gain to himself or wrongful loss to his employer and his dishonestly or misconduct was not proved and he was re-instated in service. It was proved on the file that Sadar Din, who had expired had issued the bulbs by his signatures. It was further pointed out that Mukhtar Nisar did not admit the signatures on the Old Parts Certificate. Mukhtar Nisar was to receive the fused bulbs and the learned Punjab Labour Appellate Tribunal, Lahore has misapprehended this fact and has stated in the impugned order that, the petitioner had forged the signatures of Mukhtar Nisar and had stated that the bulbs had been delivered to the latter. Cogent reasons should have been given by the learned Punjab Labour Appellate Tribunal, Lahore for disallowing the back benefits to the petitioner. He had declined to award the back benefits to the petitioner on the sole ground that the factum of putting signatures of Mukhtar Nisar on Old Parts Certificate stood amply proved. Since he was to deliver fused bulbs to Mukhtar Nisar, the forging of signatures did not go to the detriment of the employer because the new bulbs were fixed in the premises of l the employer.

5. I am in agreement with the aforementioned precedents in which it has been adjudicated that a Tribunal, who has the jurisdiction to, decide a matter can decide it rightly or wrongly but in Allied Bank of Pakistan v. Punjab Labour Appellate Tribunal etc. 1980 P L C 42 it was held that the order of re-instatement is to be coupled with an order of payment of back wages unless specific reasons for not allowing the same are given. It has further been added in the said precedent that the employer should claim set off in his written statement. In the instant case, the employer did not make even a whisper of complaint regarding a claim of set off and in this manner, this case can be distinguished from other cases. In another precedent, namely, Divisional Superintendent, P.W.R., Karachi v. Bashir Ahmad P L D 1973 S C 589 it was held that a worker, who is willing to render service but is illegally kept out is entitled to full wages unless deduction is allowable under the Act and the wages do not necessarily mean wages earned. Relying on the said authorities, we are disposed to hold that the learned Punjab Labour Appellate Tribunal, Lahore should have allowed back benefits to the petitioner and the reasons for disallowing back benefits do not appear to be genuine but are arbitrary. In the circumstances, we accept this constitutional petition and quash the impugned order and restore that of the Punjab Labour Court, Multan,' dated 23-9-1982. We, however, make no order as to posts.

A. A.

Petition accepted.

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