THE HIGH COURT OF SINDH AT KARACHI

 

                             Present:

 

      Mr. Justice Muhammad Ali Mazhar

                                          Mr. Justice Abdul Maalik Gaddi

 

 

C.P. No.D-3929 of 2012

 

 

Muhammad Naeem.       .         .         .         .         .         .  Petitioner

 

                                                Versus

 

General Tyre & Rubber Company of Pakistan

and another.         .         .         .         .         .               .Respondents

 

 

Petitioner                                 :        Through Mr. Muhammad Atiq

                                                          Qureshi, Advocate

 

Respondent No.1                     :        Through Mr. Muhammad Ali

                                                          Khan, Advocate

 

Date of hearing                               :           24.11.2018

 

J U D G M E N T

ABDUL MAALIK GADDI, J.- Through this constitutional petition, the petitioner has prayed for the following relief(s):

“It is therefore, prayed to this Honourable Court would be pleased to call the R & P of grievance application No.185/2007 and set aside the impugned order dated 28.08.2012, passed by the Sindh Labour Appellate Tribunal at Karachi and further by holding that petitioner is entitle to reinstatement with full back benefits by set asiding the order of the learned Labour Court upto the extent of the back benefit.

Any other relief according to the pleading of the parties require to be granted or this Honourable Court as deem fit and proper.”

 

2.       The concise facts giving rise to this petition are that the petitioner was performing his duties as Mechanical Helper on permanent basis in M/s General Tyre & Rubber Industries Limited (hereinafter referred to as Respondent Industry); when a complaint against him was received by the respondent Management with regard to using filthy and abusive language against one Asrar canteen worker and also slapping on his face; as such he has been issued a charge sheet on 14.07.2007 and after holding an inquiry he was dismissed from service on 06.08.2007. After dismissal from service, the petitioner served a grievance notice dated 27.08.2007 upon the respondent, which was responded as not satisfactory while denying the case and claim of the petitioner by the respondent; resultantly, the petitioner filed a grievance application under section 46 of the IRO 2002 r/w S.O. 12(3) of Ordinance, 1968, for his reinstatement with full back benefits before the learned Sindh Labour Court No.IV, Karachi (hereinafter to be referred as the Labour Court). The said grievance application was allowed by the Labour Court vide judgment dated 22.01.2010 and the petitioner was ordered to be reinstated in service; however, without awarding back benefits. Thereafter, the petitioner as well as the respondent No.1 challenged the said judgment before the Sindh Labour Appellate Tribunal at Karachi (hereinafter to be referred as the Tribunal) by filing their appeals bearing Appeal # KAR-54/2010 and Appeal # 42/2010, respectively.

3.       The petitioner in his appeal (Appeal # KAR-54/2010), has assailed the denial of back benefits; whereas the respondent No.1 in his appeal (Appeal # 42/2010), has assailed the reinstatement of the petitioner in service.

4.       The Tribunal by its common Decision dated 28.08.2012 (impugned herein) decided both the aforementioned appeals and remanded the matter to the learned Labour Court with direction to decide the case on merits including the point of maintainability of the grievance application filed by the petitioner, after hearing the parties.

5.       The respondent No.1 did not challenge the Decision passed by the Tribunal, but the petitioner through instant petition has assailed the findings of the Tribunal with the prayer as mentioned supra. 

6.       It is argued by learned counsel for the petitioner that the impugned judgment passed by the learned Tribunal is against the law and facts on record; that since sufficient oral as well as documentary evidence as brought by the both parties was available on the record, therefore, the learned Tribunal instead of remanding the matter to the Labour Court should have decided the same on merits; that the petitioner was working as Mechanical Helper in the Respondent Industry on permanent basis since 09.05.1987 and at the time of alleged incident he was also holding the office of Labour Union of the Respondent Industry as Joint Secretary and he used to raise issues of employees before the Management and due to that, the Respondent remained annoyed towards him, therefore, the Management of Respondent managed / setup a false and fake incident and thereby after issuing a charge sheet conducted an inquiry on the allegations as mentioned therein and then dismissed him from service, which was apparently a colorful exercise in nature only due to holding of Union office as Joint Secretary; that the petitioner has filed his grievance application before the Labour Court for his reinstatement in service alongwith all back benefits and in this regard he had produced all convincing / cogent evidence by mentioning the ground that the order of his dismissal from service by Respondent was illegal and malafide; that the Labour Court allowed his reinstatement in service; however, declined the relief of awarding back benefits to him without assigning any plausible reason, therefore, the petitioner has filed an appeal before the Tribunal, who too without assigning any good reason and applying its judicial mind, remanded the matter to Labour Court for deciding the same afresh on merits including the question of maintainability of the petitioner’s grievance application. According to the learned counsel for the petitioner, the Tribunal has not appreciated the evidence and documents as available in its true perspective and remanded the matter to the Labour Court instead of deciding the same finally, as the matter pertains to year 2007 and the Tribunal was fully empowered under the law to decide the matter on merits because sufficient evidence was available on record in order to avoid further delay and so also to avoid the torture of another round of litigation. Learned counsel further argued that, under the circumstances of the case, the petitioner has no other remedy except to invoke the jurisdiction of this Court in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. He while reiterating the same facts and grounds as stated in the memo of petition, has prayed that by accepting this petition, the impugned judgment passed by the learned Tribunal be set aside and the grievance application filed by the petitioner be allowed as prayed. In support of his contention, he relied upon the cases of (1) Dilkusha Enterprises Ltd. V Abdul Rashid and others (1985 SCMR 1882), (2) Muhammad Bashir v. Chairman, Punjab Labour Appellate Tribunal and others (1989 SCMR 1095), (3) Gul Habib v. Federation of Pakistan and another (1988 P L C  645), (4) Allied Bank of Pakistan Ltd. v. Punjab Labour Appellate Tribunal Etc. (1980 P L C 42), (5) Zafrullah Khan Bajwa V Punjab Labour Appellate Tribunal, Lahore and 2 others (1991 PLC 490), (6) National Bank of Pakistan V Sindh Labour Appellate Tribunal, Karachi and 2 others (1992 PLC 94) (7) Abdul Ghani V The M. P. O., WAPDA, Lahore and others (1969 PLC 48), (8) Akram Khan V Messrs Kohat Textile Mills Ltd., Kohat (1973 PLC 24) and (9) Ejaz Ahmad Abbasi V Punjab Labour Appellate Tribunal and 2 others (1992 PLC 7).    

7.       Conversely, the learned counsel for Respondent Company while reiterating the facts and grounds as mentioned in his written synopsis, has supported the impugned judgment passed by the leaned Tribunal and has argued that the grievance application filed by the petitioner was not maintainable, as the petitioner has committed misconduct by using filthy language against one Canteen Worker namely Asrar and also giving slap on his face; as such a charge sheet was issued against him and since it was not responded satisfactorily, therefore, departmental inquiry was also ordered to be conducted against him and after holding such inquiry and on the basis of recommendation made by the Inquiry Officer, the petitioner was dismissed from service, which order was perfect in law and the reinstatement order passed by the learned Labour Court was not based on proper appreciation of evidence, therefore, the Respondent company filed appeal bearing No.KAR-42/2010 before the Tribunal against the said reinstatement order. He further submits that the judgment of the Tribunal was perfect and the instant petition filed by the petitioner is not maintainable. In support of his contention, learned counsel for the Respondent Industry, relied upon the case of Mustekhum Cement Limited through MANAGING DIRECTOR v. Abdul Rashid and others (1998 SCMR 644). 

8.       We have heard the learned parties’ counsel as well as gone through their respective written synopsis and perused the entire record carefully.

9.       So far the contention of the learned counsel for the respondent No.1 that the learned Labour Court has not appreciated the evidence and documents on record in its true perspective and the learned Tribunal has rightly remanded the matter for deciding the same afresh, therefore, the said order may be maintained and the instant petition may be dismissed, suffice it to say that the parties are in litigation since 2007, almost eleven (11) years have been passed and this Court is competent and fully empowered under the law to decide this petition on merits, as here in this case sufficient, oral as well as documentary evidence is available on record to decide the controversies finally in between the parties. In view of the above, remand of the case not being routine matter, which should be adopted only when compelling circumstances exists. Here in this case, no compelling circumstances exist. However, during the course of arguments, we have specifically asked the question from learned Counsel for respondent No.1 to point out any compelling circumstances in this matter for remand of case either to Appellate Tribunal or Labour Court, he did not reply satisfactory. Therefore, while relying upon the cases of Mst. Shahida Zareen v. Iqrar Ahmed Siddiqui (2010 SCMR 1119), (2) Ashique Ali and others v. Mst. Zamir Fatima and others (PLD 2004 SC 10), and (3) Roazi Khan and others v. Nasir and others (1997 SCMR 1849), though all these judgments have been delivered in the cases of different nature, but since the analogy of these cases was same as that of present case, we intend to decide this petition finally to avoid further delay and so also to avoid the torture of another round of litigation.

10.     As regard the maintainability of the grievance petition is concerned, the learned Labour Court in its judgment while deciding this point has observed as under:-

So far as maintainability of the petition is concerned the learned counsel for the respondent challenged the maintainability of the petition on the ground that the petitioner has nowhere alleged or claimed that his dismissal was in connection with any industrial dispute or that it had laid to any industrial dispute, therefore, proceedings under section 46 of IRO 2002 are not maintainable as the provision of Standing Order 12(3) of Standing Orders Ordinance 1968 was not applicable because with the repeal of IRO 1969 and promulgation of IRO 2002 no corresponding amendment was made in Standing Order 12(3). With the result the proceedings are not maintainable as the Standing Order 12(3) still refers to section 25-A and not 46 of IRO 2002. So far as this point is concerned admittedly no any amendment is made in Standing Order 12(3) which reads as under:-

“(3)    The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state that reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may [take action in accordance with the provisions of] Section 25-A of the Industrial Relation Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said Section shall apply as they apply to the redress of an individual grievance.”

No doubt from the above provision it is clearly mentioned that in a case if workman is aggrieved by the termination of his service in any way he may take action in accordance with provision of section 25-A of the IRO 1969 and thereupon the provisions of said section would be applied as they were being applied to the redress of individual grievance. From the above it appears that the action was to be taken under section 25-A of IRO 1969. The IRO 1969 has been repealed and new enactment as IRO 2002 has been made and no amendment is made in the Standing Order 12 (3) of Industrial and Commercial Employment (Standing Orders Ordinance 1968) to substitute the provisions of new enactment in place of repealed enactment. However, under section 8 of General Clauses Act, 1897 it is clearly mentioned that where the Act repealed has been re-enacted with or without modification, any reference under any other enactment or in any instrument to the provision so repealed, shall unless a different intention appears, to be continued as reference to the provisions so re-enactment. Under section 8 of General Clause Act even an enactment is repealed and re-enacted then any reference to repealed enactment would be continued to be reference to be new Act. In a case reported as PLJ 1982 Lahore 460 it was held that when any statute is repealed and re-enacted then unless the different intention not manifested expressly or impliedly, the reference in any other enactments, instrument to provisions so repealed, to be construed as reference to provision so re-enacted. Thus point has been cleared that even after repeal of IRO 1969 the references of it made in another statute even if without introduction of amendment would be deemed to be references to the provisions of new IRO 2002. Hence the objection is over ruled and petitioner having right given under law to file the petition and petition is maintainable.”

 

11.     We have given our anxious consideration to the relevant laws as well as the discussion made by learned Labour Court on the point of maintainability of the grievance application filed by the petitioner and are concurred that the learned Labour Court has elaborately and rightly in the scenario of the present case held that the grievance application of the petitioner was very much maintainable. During the course of arguments, we have also specifically asked the question from the learned Counsel for respondent No.1 that how the grievance application filed by the petitioner before the Labour Court was not maintainable, when there exists relationship of employee and employer between them, he has no plausible answer with him. Besides, nothing on record that the petitioner was performing functions of Supervisory and Managerial in nature in the respondent industry. Thus, the case of petitioner falls within the definition of workman.

12.     As regard the issue of reinstatement of the petitioner in his service with full back benefits is concerned, perusal of record shows that the petitioner was employed permanently in the respondent company since 09.5.1987 and was designated as a Mechanical Helper. He was served a charge sheet dated 14.07.2007, which reads as under:

“CHARGE SHEET

It has been reported against you that on Wednesday, 11th July, 2007 in Third Shift after10:30 p.m. you went in the factory canteen and told one canteen worker namely Mr. Asrar that the tea sent in your department was not of good quality. You were replied by Mr. Asrar in presence of Mr. Zabardasst Khan, Chairman. Canteen Committee that tea is sent in the department after proper cooking. You went out of the canteen and came in again and then you used filthy and abusive language against Mr. Asrar, Canteen Worker and slapped on his face.

 

The above acts on your part amount to committing an act of Riotous and Disorderly Behaviour as well as committing an subversive of discipline during working hours which is an misconduct under the Standing Order No.15(3) (h) of the Industrial and Commercial Employment (Standing Orders) Ordinance. You are, therefore, charge sheeted for the same. Show cause within 03 days of the receipt of this Charge Sheet as to why disciplinary action against you be not taken.”

 

 

13.     The petitioner replied the said charge sheet which was found unsatisfactory. Hence departmental enquiry was ordered in the matter and one Major (Rtd.) Muhammad Ali Memon was appointed as Enquiry Officer who conducted the enquiry in the matter and after recording the evidence of the parties, he prepared the report of enquiry and found the petitioner guilty of misconduct as mentioned in the charge sheet. On the report of enquiry officer, the dismissal order was passed and petitioner was dismissed from service. Thereafter, being aggrieved with such dismissal, the petitioner served a grievance notice which was replied by the respondent and then he filed grievance application with a prayer to set aside the dismissal order of service passed against him and further respondent be directed to re-instate the petitioner with full back benefits.

14.     The respondent company served with the notice of said grievance application and then filed their written statement in which, they challenged the maintainability of the application on the ground that the petitioner claiming himself to be a workman, thus was entitled to file the application under Standing Order 12 (3) of Standing Order Ordinance under Section 25-A of IRO 1969. However, the IRO 1969 is repealed and new enactment i.e. IRO 2002 is enforced but after enactment of IRO 2002 no such amendment was made in Standing Order 12 (3) of the Standing Order Ordinance. Therefore, the provision of above Standing Order is not applicable to the case of the petitioner and petition is not maintainable. It is also pleaded in the written statement that the petitioner was found guilty of misconduct, therefore, after observing all legal formalities, the petitioner was rightly dismissed from service.

15.     The case and claim of the petitioner is that he was permanent employee of respondent No.1 and working with the company as Mechanical Helper/Workman since 09.05.1987 and was performing his duties diligently, but he was dismissed from service illegally by management and after observing all formalities, he filed grievance application for his reinstatement with full back benefits. In order to prove his case, the petitioner filed his own affidavit as well as affidavit of one Fareed Rasheed (employee of respondent No.1). In his affidavit-in-evidence, the petitioner has reiterated the facts as given in his grievance application. He also stated that he had not committed any misconduct and the enquiry officer was not an independent person and no proper, fair and independent enquiry was conducted by the respondent company. He further stated that no any eye witness of the incident was examined during departmental enquiry proceedings and the witness of the management did not give the reply to the question put by him. Fareed Ahmed in his affidavit-in-evidence as well as cross-examination has fully supported the petitioner’s assertions. Whereas on behalf of respondent Company Syed Najam Ahmed Senior Personnel Executive and Notified Manager and Major (R) Muhammad Ali Memon have filed their affidavit-in-evidence, in which they re-asserted the facts as were stated in their written statement. During trial, Syed Najam Ahmed was cross examined by the learned counsel for the petitioner and in his cross-examination he admitted that the petitioner Muhammad Naeem was general secretary of the CBA union at the relevant time and he was an old worker. Major (Retd.) Muhammad Ali Memon enquiry officer also filed his affidavit-in-evidence and produced enquiry proceedings alongwith report. During his cross-examination, witness Major (Retd.) Muhammad Ali Memon, has admitted that in the charge sheet Canteen Worker Asrar Ahmed, against whom, allegedly the petitioner had used filthy language and also gave a slap, and Zabardast Khan were mentioned as witnesses; however, neither they appeared before the Inquiry Officer nor examined while conducting inquiry. In his cross-examination before the Labour Court, the Inquiry Officer has admitted that during inquiry proceedings, Canteen Worker Asrar and Complainant/Supervisor Badshah Khan were not examined. He also admitted that petitioner had asked to call Zabardast Khan as a witness but since he was not the witness and was not prepared to give statement against the petitioner, therefore, he was not examined. It also appears on record that both the aforementioned persons have also not been examined before the Labour Court to prove the charge against the petitioner. The Labour Court while deciding the issue of entitlement of the petitioner to reinstate in service has observed as under:-

It is pertinent to mention here that during enquiry proceedings and even during proceedings of this case a document showing the compromise of the matter between parties was produced in which it was written that Asrar Ahmed had apologized from the petitioner on his misbehavior and that fact was admitted before the enquiry officer by that Asrar Ahmed even before this court. Neither Asrar Ahmed nor Zabardast Khan or any person being witness of the incident is produced. Even Badshah Khan is not examined. From the side of the respondent, witness Najam Ahmed senior personal executive and enquiry officer was examined. They are not eye witness of the incident. The law is well settled while adjudicating and determining a grievance the labour court has to go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case, as the words "shall go into all the facts of case" clearly signify that the labour court has full and complete powers to enter even in question of facts and to arrive at its own conclusions regardless of there being an illegality of procedure in domestic proceedings. The above views were expressed by Honourable Supreme Court in a case Crescent Jute Products Limited v/s Muhammad Yakoob etc reported as PLD 1978 SC 207. In that case the Honourable Supreme Court further observed that by using the words shall go into all the facts of the case as are given in section 46 of IRO 2002 the intention of the legislature appears to provide another forum in determining the grievance afresh after considering the facts on which any impugned dismissal order was based. If that was not so, then there was no occasion for using the above words which in view of Honourable Supreme Court defined the jurisdiction of Labour Court. Thus according to Honourable Supreme Court if the legislation in its wisdom had chosen the words of forereaching consequences they did not see how their meaning can be whittled down. Thus the Honorable Supreme Court further held that while hearing the matter in labour court it is intended to provide another forum to the workers to check against the arbitrary, capricious and camouflaged dismissal. Thus it was necessary for the employer to prove the justification of the dismissal order by producing the positive evidence and if he fails to prove the case by evidence it is he whose case has to fail. In the present case neither before enquiry officer nor in this court the person who is alleged to be slapped and abused by the petitioner is examined. Even no any other eye witness of the incident is examined either in enquiry proceedings or in this Court. Nothing is produced through evidence on record as to what was the misconduct and when and towards whom. No evidence is brought to prove the justification of the order by management dismissing the petitioner from service. Therefore, there is no justification to maintain the same, hence it is set aside and petitioner is directed to re-instate in service within one month from today.

 

16.     We have gone through the record and found that in the charge sheet issued against the petitioner, it was mentioned that on 11.07.2007 the petitioner went in the factory canteen and quarreled with one canteen worker namely Asrar on the issue of quality of tea and then slapped on his face in presence of Zabardast Khan, Chairman Canteen Committee; however, while proceeding with their case, the respondent has only examined P.Ws Syed Najam Ahmed Senior Personnel Executive and Major (R) Muhammad Ali Memon (Inquiry Officer) and have failed to bring/examine the material/star witnesses of the incident i.e. Canteen Worker Asrar with whom the petitioner had allegedly quarreled and slapped on his face and Zabardast Khan, in whose presence the said incident allegedly occurred, even Badshah Khan (Complainant) was also not examined. The evidence of the said P.Ws. namely Asrar, Zabardast Khan and Badshah Khan was necessary to have been produced to corroborate the respondent’s case, particularly, with regard to happening of alleged incident, but none of the said witness has been examined before the trial Court. Even otherwise, no satisfactory explanation in this regard has been tendered to justify the non-production of said witnesses, therefore, no reliance can be placed safely on the evidence of P.Ws Syed Najam Ahmed and Inquiry Officer Major (R) Muhammad Ali, because none of them was eye-witness of the alleged incident. The act of withholding of most material/vital witnesses would create an impression that the said witnesses if would have been brought into witness box, they might not have supported the respondent’s case and in such eventuality, the respondent must not be in a position to avoid the consequences. In this context we are fortified by the cases of Sughran Bibi v. Mst. Aziz Begum and 4 others (1996 SCMR 137) and Chairman, FESCO, and others v. Haji Gulzar Ahmed through Abdul Aziz Ahmed (2015 M L D 1487). We have also noted that during departmental inquiry, no opportunity was given to the petitioner to produce his witnesses in support of his case and this fact is evident from annexure ‘A-11’ dated 03.08.2007, therefore, no reliance can safely be placed on inquiry report. Under the aforementioned facts and circumstances, the petitioner was entitled for his reinstatement in service with full back benefits, but the Labour Court has only passed order for his reinstatement without awarding full back benefits and wrongly hold that petitioner has not asserted either in his grievance notice, grievance application or in his affidavit-in-evidence that during dismissal period, he remained unemployed.

17.     So far as the issue of awarding back benefits to the petitioner is concerned, it is observed that upon filing grievance application by the petitioner, on one hand, the Labour Court has granted relief of reinstatement in his favour however while declaring the order of dismissal as illegal and malafide, on the other hand, it has declined the relief of awarding back benefits; although the petitioner throughout the proceedings has asserted that during his dismissal period he remained unemployed and the Respondent Industry has failed to bring any proof on record that during the relevant period the petitioner was remained in gainful employment. No doubt, on reinstatement of any employee, the said employee is not entitled for back benefits automatically and cannot be treated to be natural consequence. For entitlement, the employee has to show that he was not in gainful employment from the date of his dismissal.

18.     Though the initial burden of proof is on the employee to establish that he was not gainfully employed from the date of his termination/dismissal, but he remained unemployed is a negative assertion and it is by now well settled principle of law that burden of proving a fact rests on the party who substantially assert the affirmative of the issue and not upon the party who denies it. For a negative assertion is usually incapable of proof is a well recognized principle of evidence. On the point of burden to prove this aspect, reliance is placed on Dilkusha Enterprises Ltd. V Abdul Rashid and others (1985 SCMR 1882), wherein it has been observed as under:-

6.      -----------------. Learned counsel sought to place on the record before us an order passed by a Labour Court on the application of respondent No. 1 against Hamayoon Textile Mills in respect of salary dues awarded to the said respondent but since this document does not appear to have been produced in the evidence before the Labour Court in the proceedings of the present case, we are unable to look into it for any purpose. In connection with this contention it was argued by the learned counsel that the onus to prove that he was not gainfully employed rests on the worker and in the circumstances of this case, therefore, the petitioner cannot be blamed for not leading evidence on this question. Reference was made to the case of Karachi Transport Corporation v. Jamil Beg 1981 P L C 862 and Bantva Memon, Khidmla Committee v. Naimullah 1981 P L C 178 but we are unable to agree with the broad proposition of law that the initial burden to prove lies upon the worker to establish that he was not gainfully employed elsewhere during the relevant period in order to succeed to the grant of back benefits, for, this being a negative fact the worker can hardly establish it with anything substantial evidence except his oral assertion that he was not gainfully employed elsewhere and then it would be for the employer to prove affirmatively that he was so employed.”

 

 

19.     In the instant case, the petitioner in his grievance notice (page-43 & 45), and thereafter in his grievance application filed under section 46 of the Industrial Relations Ordinance, 1969 (page-47, relevant para-7 of page-53) as well as in his affidavit-in-evidence filed before the Labour Court (page-173, relevant page-179 of the instant petition), has asserted that he is unemployed and has crossed the age of getting a new job. Meaning thereby, the petitioner had discharged the initial burden that lay upon him and the onus was shifted upon the employer/respondent to specifically plead and prove affirmatively that the petitioner was in gainful employment from the date of his dismissal; however, the respondent in his response to grievance notice of the petitioner did not say anything in respect of the employment of the petitioner. Not only this, the respondent during trial before the learned Labour Court has failed to bring on record any convincing or cogent material/evidence which indicates that after the dismissal from service, the petitioner was in gainful employment, but the respondent industry failed to discharge the burden lay upon them under the law. However, the observation of the learned Labour Court in this regard appears to be based on completely misreading and non-reading of the pleadings of the petitioner/workman and evidence.

20.     In the above backdrop, it can safely be held that the learned Judge of the Labour Court in its judgment has wrongly held that petitioner did not assert against his unemployment throughout the proceeding and wrongly placed reliance on the case of Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others (1991 SCMR 2087) and stated that petitioner is not entitled for back benefits.

21.     So far as the case law cited Supra is concerned, needless to say that the facts of the same are quit distinguishable from that of the case in hand. In the cited case law, three appeals were disposed of by a single judgment; out of which one appeal being Civil Appeal No.742 of 1988 (Muhammad Bashir v. Chairman, Pb. Labour Appellate Tribunal and 2 others) was disposed of by while holding that the conduct of the workman was not blameless and was partly responsible for his removal from service, therefore, not entitled for back benefits; whereas in two appeals being Civil Appeal No.498 of 1989 (Muhammad Idrees v. Punjab Labour Appellate Tribunal, Lahore and 5 others) and Civil Appeal No.566 of 1989 (Syed Arif Hussain Naqvi v. The Personnel and Administrative Manager etc.), the Honourable Supreme Court has held that the workman did not assert that he was not gainfully employed elsewhere during the relevant period, hence not entitled for back benefits. But here in this case as observed above, that the petitioner’s grievance application was allowed and no charge of misconduct was proved against him; in spite of this fact, no order for payment of back benefits was passed, though the petitioner in his grievance notice and thereafter in his grievance application and affidavit-in-evidence filed before the Labour Court has asserted that he had remained unemployed during the relevant period, as he has crossed the age of getting a new job and no cogent and convincing evidence has been brought on record by respondent No.1 that the present petitioner was remained in gainful employment in any other job during the period i.e from dismissal of his service till filing or deciding grievance application before the Labour Court.

22.     Apart from the above, speaking realistically where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so, in our system where the law’s proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back benefits which would be due to him, the workman would be subjected to a sort of penalty for no fault of his as it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back benefits except to the extent he was gainfully employed during the enforced idleness. But here in this case, when respondent has failed to prove that the petitioner was remained in gainful employment during the intervening period i.e. after termination of his service till disposal of the grievance application, therefore, under these circumstances, the petitioner is also entitled for the back benefits as claimed by him. The case law cited by the Counsel for respondent No.1 has been perused and considered by us, but did not find applicable to the facts of the present case, hence, not helpful for him.

23.     The net result of the above discussion is that the impugned Decision dated 28.08.2012, passed by Sindh Labour Appellate Tribunal in Appeals No.KAR-42 and KAR-54 of 2010, is hereby set-aside. Consequently, the Writ Petition is accepted and grievance application filed by the petitioner before the Labour Court is allowed as prayed with immediate effect, with no order as to cost. With this result, pending applications have become infructuous, therefore, the same are also disposed of.  

 

                                                                                                                                                           JUDGE

 

 

 

                                                                             JUDGE

 

Karachi

Dated: 15.02.2019

 

Faizan A. Rathore/PA*