JAMIL AKHTER SHERAZI Versus AZAD JAMMU AND KASHMIR GOVERNMENT
1. AJMAL MIAN, C.J .‑‑‑This petition is directed against an order dated 14‑12‑1982 passed by the learned Labour Appellate Tribunal at Karachi in Appeal No. KAR‑407/82 modifying the order dated 14‑9‑1982 of the Vth Labour Court at Karachi to the extent of disallowing the petitioner's back benefits while maintaining the finding of the learned Labour Court and concurring with the same that the petitioner was in fact sick and because of that he had justifiable reason not to attend the duties. The petitioner being aggrieved by the above portion of the above order has filed the present petition. The brief facts leading to the filing of the above petition are that the petitioner was working with respondent No. 2 Bank as a Senior Cashier. He remained absent from 19‑4‑1981. He sent an application on 5‑5‑1981 alongwith a medical certificate for leave for the periods from 19‑4‑1981 to 21‑5‑1981. In response to the above application respondent No. 2 sent a telegram dated 24‑5‑1981 asking the petitioner to resume duty. It seems that the petitioner sent second leave application dated 26‑5‑1981 alongwith the medical certificate for leave for the period from 22‑5‑1981 to 25‑6‑1981. The petitioner was dismissed from service by memorandum, dated 14‑7‑1981 in terms of rule 15(3) of the Staff Service Rules, 1980, without charge‑sheeting the petitioner and without holding an enquiry. The petitioner after serving a grievance notice under section 25‑A of the I.R.O. filed an application under the above section before the learned Vth Labour Court at Karachi which application was allowed by an order dated 13‑9‑1982. Against the above order respondent No. 2 filed aforesaid appeal, which was disposed of by the impugned order in the above terms. The petitioner being aggrieved by the above order has filed the present petition.
2. In support of the above petition the learned counsel for the petitioner has urged that the ground on which the petitioner was denied back benefits was not a ground sustainable in law. On the other hand, the learned counsel for the respondent No. 2 has contended that the learned Sindh Labour Appellate Tribunal was justified in disallowing the back benefits after taking into consideration the conduct of the petitioner namely that he sent first application for leave after about 16 days and the second leave application was also sent after the expiry of five days from the date of the expiry of the cave period applied for under the first leave application. He has further submitted that since a technical ground is involved in the instant case as to the application of the provisions of the Standing Orders Ordinance in preference to the service rules of respondent No. 2, this was also a ground for non‑allowing the back benefits.
3. The learned counsel for the petitioner in support of his above submission has referred to the typed page 6 of the impunged order wherein the learned Appellate Tribunal has concluded that the petitioner remained under treatment for the period for which he applied for leave on both the occasions and that the medical certificate produced by him remained uncontroverted by respondent No. 2. Then he referred to para 7, which contains the reason for disallowing the back benefits. It may be advantageous to reproduce the same:‑
4. "There remains the question of award of back benefits to the respondent. As already pointed out, though the respondent had remained absent from his duties with effect from 19‑4‑1981, his first application for (cave is dated 5‑5‑1981 i.e. some 16 days after he started absenting himself from his duties. Similarly, though the respondent was expected to resume his duties on 22‑5‑1981, if his first application for grant of leave had been granted, or in the alternative to have sent well‑in‑time an application for grant of extension of leave, the second application, assuming that he made the application and submitted it to the bank, is dated 26‑5‑1981 i.e, four days after the leave for which he had originally applied had expired. Finally, when the respondent received the telegram, dated 24‑5‑1981, or was served with the final notice, dated 11‑6‑1981, he should have taken the trouble of coming personally to the bank with his application, instead of sending the last leave application on 2‑7‑1981, as asserted by him. It has been testified by Dr. Mazhar Hyder that though the respondent was unable to perform his duties by reason of his illness he was able to move about. The very fact that the respondent was able to see his doctor indicates that he was not confined to bed and he could move about. In the circumstances I am of the, opinion that the respondent is not entitled to back benefits."
5. On the basis of the above‑quoted para he has vehemently contended that the grounds on which the petitioner was disallowed back benefits by the Sindh Labour Appellate Tribunal though allowed by the learned Labour Court are not sustainable in law. In support of his above submission he has referred to the cases of Muhammad Arshad v. J & P Coats Pakistan Limited, Karachi and 2 others reported in PLD 1977 Karachi 83 relevant page at 85, Niaz Ali v. Punjab Urban Transport Authority, Lahore and 3 others reported in PLD 1983 Lah. 661 relevant page at 663, Divisional Superintendent P.W.R. of Karachi v. Bashir Ahmad, Vice‑Chairman, West Pakistan Railway Board and another v. Muhammad Taj, General Manager, Pakistan Western Railway, Lahore v. Sher Muhammad reported in PLD 1973 SC 589; Pakistan through General Manager. Lahore v. Mrs. A.V. Issacs, reported in PLD 1970 SC 415 and the case of Divisional Superintendent, N.W.R., Lahore v. Muhammad Sharif, Booking Clerk, N.W.R., Gujrat reported in PLD 1963 SC 340.
6. In the first case a learned Single Judge of this Court held that after the Labour Court having held that the dismissal from service was illegal was not justified in declining the back benefit. In the second case a learned Single Judge of the Lahore High Court has held that the learned Labour Appellate Tribunal was not justified in disallowing the back benefit though the back, benefit was allowed by the Labour Court. The above second case is directly applicable to the facts of the present case. The third case, which is of the Supreme Court of Pakistan related to the Payment of Wages Act in which it was held that since the respondent was kept out of service illegally by the appellant Railway Authorities he was entitled to the full wages. The reference in the above case has been made to the above two cases of the Supreme Court in PLD 1970 SC 15 and PLD 1963 SC 340. On the other hand, the learned counsel for the respondent No. 2 has referred to the case of Jalil Ahmad Khan v. The National Laboratory‑I, Abkari Road, Lahore in 1985 PLC 166 in which the learned Labour Appellate. Tribunal Punjab has held that since the dismissal order was set aside on a technical ground the worker was not entitled to back benefits.
7. In our view the judgments relied upon by the learned counsel for the petitioner have direct bearing to the point in issue whereas the case referred to by the learned counsel for the respondent No. 2 has no application to the instant case inasmuch as both the Courts below have recorded as a finding of fact that factually the petitioner was sick during the period when he remained absent. The dismissal order was not set aside on the technical ground but was set aside on merits.
8. It is true that in a particular case the learned Labour Court or the learned Labour Appellate Tribunal may decline back benefits to a workman but the ground on which back benefits can be declined should have nexus with the earning of the workman in question during the period involved. In the instant case if respondent No. 2 would have brought on record evidence to show that during certain period the petitioner had earned wages the learned Labour Court or the Sindh Labour Appellate Tribunal could have declined the total back benefits or portion thereof keeping in view the quantum of amount earned by the petitioner. However, in the case the ground on which the learned Sindh Labour Appellate Tribunal has modified the order of the learned Labour Court as to the back benefits is not relevant for the purpose of deciding the question whether the petitioner was entitled to back benefit or not. The fact that the petitioner had filed the first application for leave after 16 days from the date of remaining absent of five days after the expiry of the leave period applied for under the first application for leave or the fact that he had not come to deliver the application to the respondent No. 2's office have no direct bearing with the question whether petitioner was entitled to the back benefit or not. Both the Courts below after having held that the petitioner had a justifiable reason for remaining absent and therefore dismissal order was not justified could not have declined back benefits on the above ground particularly the Sindh Labour Appellate Tribunal as the Labour Court had granted the back benefit in consonance with the above‑cited judgments of the superior Courts.
9. It was also contended by the learned counsel for the petitioner that non‑allowing of back benefits by the Sindh Labour Appellate Tribunal amounts to imposing a penalty on the petitioner which is not warranted under section 25‑A of the I.R.O. The above submission finds support from the above Lahore judgment of the learned Single Judge where reference has been made to this aspect. Since we have held on the above first submission that the grounds on which the learned Sindh Labour Appellate Tribunal has modified the order of the Labour Court for disallowing back benefits are not sustainable in law it is not necessary to go in detail in the above second submission.
10. The petition is therefore allowed. The impugned order to the extent of disallowing the back benefits to the petitioner is declared without lawful authority and of no legal consequence. There will be no order as to costs. Respondent No. 2 shall pay the back benefits within a period of 60 days from today.
11. H.B.T./M‑1833/K Petition allowed.