QADEER AHMAD vs PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and anothers

' SHAFIUR RAHMAN, J.--Leave to appeal was granted to examine whether in view of the two judgments referred to in the leave granting order, the appellant was not entitled to be reinstated to the post from which he was dismissed from service as also to be paid the salaries for the period for which he had been wrongly kept out of service, on the setting aside of the orders of dismissal by declaring them to be illegal and without lawful authority.

2. The factual background of the appeal is that the appellant was employed as a Dispenser in the establishment of respondent No,2 Bahawalnagar Sugar Mills Limited, Chishtian. When the Social Security Scheme was extended to the employees of the aforesaid respondent, the services of the appellant were dispensed with by an order effective from 1-10-1975. This order was challenged by the appellant in the Labour Court and on his application a status quo order was granted to him on which he continued in service of the respondent. It appears that towards the end of the same year large scale strikes took place resulting in disturbance, whereupon the appellant was charge- sheeted and the charge-sheet was published in the daily 'IMROZE' dated 2-2-1976. It was followed by a sort of an enquiry ex parte which resulted in his dismissal on 17-2-1976. The Labour Court by an order/judgment dated 12-1-1978 dismissed his application for reinstatement in service and his appeal before the Labour Appellate Tribunal also failed on 27-7-1978. He thereafter filed a Constitution Petition (No,5394/1978) at Lahore which was renumbered at the Circuit Bench of the Lahore High Court at Bahawalpur as Writ Petition No,185 of 1979/BWP. It was allowed on 25-2-1980.

The operative part of the High Court's judgment was as hereunder:-- "For the reasons aforementioned, the writ petition is allowed and the orders dated 1-10-1975 as well as 17-2-1976 are against law, and the impugned judgments dated 27-7-1978 and 12-1-1978 are declared without lawful authority. It may however be clarified that respondent No,2 is not precluded from taking fresh action against the petitioner in accordance with law."

3. It has to be noted that there was no reason given in the judgment or any defect indicated in the order dated 1-10-1975 terminating the services of the appellant. What was said was that it had not been acted upon and the appellant was continued in employment not noticing that this was done on account of the status quo order passed by the Labour Court in the first instance and continued while the writ petition was pending.

4. The respondent, instead of reinstating the appellant consequent upon the order of High Court, issued him an enquiry notice dated 5th of March, 1980 and suspended him for four days with effect from 10-3-1980, and after holding an enquiry dismissed him from service on 27-3-1980. Before this dismissal order was passed afresh on 27th of March, 1980, the appellant moved an application (C.M.No,248 of 1980/BWP) which was amended and the relief sought in that application was as hereunder:-- "It is, therefore, respectfully prayed that respondent No,2 may kindly be ordered to implement the order dated 25-2-1980 of this Hon'ble Court and reinstate the petitioner with back benefits.

' It is further prayed that respondent No,2 may please be proceeded against under the Contempt of Court Act, for deliberately avoiding the compliance of the order of this Hon'ble Court or any other appropriate order may be passed."

5. This application for proceeding in contempt and for getting him reinstated was disposed of by the High Court by the impugned judgment/order. After discussing the entire case-law on the subject, the High Court passed the following order on 28-5-1980:- "It has been disclosed during the course of arguments that as a result of fresh inquiry proceedings initiated against the petitioner an order of dismissal from service has been passed against him by respondent No,2. The petitioner can seek legal remedy against the aforementioned order. His claim for back benefits will depend on the result of legal action which he may initiate to challenge the order of dismissal from service passed against him.

' In view of what has been discussed above, there is no substance in the petitioner's contention that respondent No,2 has failed to comply with the order of this Court and thereby has committed contempt of this Court. The petition filed by him is accordingly dismissed."

6. After the arguments had been addressed by the learned counsel for the appellant ex parte against the respondents and the judgment was reserved in this appeal, an application was filed by the appellant further disclosing that the latest information about the case was that the appellant had moved against the dismissal order passed on 27th of March, 1980, which the Labour Court had set aside on 14-9-1982 and had directed the reinstatement of the appellant but had made the following observations with regard to the back benefits:- "His entitlement to back benefits shall be deemed to have been determined in the light of the decision made by Supreme Court in the appeal filed by him."

7. Two appeals were then filed against this judgment and these were 4 disposed of by the Labour Appellate Tribunal on 30th of January, 1984 observing as hereunder:-- "As a result, I do not find any force in the appeal and dismiss the same.

' So far as cross appeal of the respondent is concerned, the observations of the Labour Court are that the question of back benefits will depend upon the decision of the appeal of the respondent pending in the Supreme Court, otherwise the respondent is not entitled to back benefits as he has succeeded on a technical defect of failure to provide the service of charge-sheet. His appeal is disposed of accordingly. Present none of the parties."

8. The leave granting order as well as the arguments addressed ex parte by Mr. Dilawar Mehmood, Advocate, the learned counsel for the appellant concerned entirely with the entitlement of a functionary to claim back benefits on the dismissal order being set aside by the competent authority. This may be an important question in itself. The background in which it has arisen concerns the application for proceeding for contempt for disobedience and non-compliance of an order of the High Court. In order to make out a case for contempt it was necessary to establish a specific direction and its breach by the party. In the case in hand no express order was passed in the judgment which was being utilised by the appellant for claiming payment of back benefits.

Therefore, in fact no breach had taken place for which the respondent could be held in contempt.

9. The other question as to whether the back benefits followed necessarily from this order of the High Court, one must admit that it does not. The law laid down by this Court in Pakistan through General Manager, P.W.R., Lahore v. Mrs. A.V.Issacs PLO 1970 SC 415 relates to an unconditional setting aside of the order of dismissal and restoration to office of a functionary. A case where the functionary is kept out of office for no fault of his. Where a functionary is kept out of office partly or wholly on account of conduct attributable to him, then in that case the availing of the back benefits does not follow either under the law or principles laid down in Mrs. A.V. Issacs's case. So far as the Government servants are concerned, under section 17 of the Civil Servants Act, the authority setting aside the dismissal order has been authorised to pass such orders as regards back benefits as it considers fit. The proviso reads as hereunder:-- "Provided further that where a civil servant has, under an order which is later set aside, been dismissed or removed from service or reduced in rank, he shall, on the setting aside of such order, be entitled to such arrears of pay as the authority setting aside such order may determine."

10. In the case of workman availing of section 25-A of the Industrial Relations Ordinance for redress of their grievances a similar power in more general terms is possessed by the Authorities dealing with the grievance. The E Labour Court has been authorised to "pass such orders as may be just and proper in the circumstances of the case".

11. Proceedings in contempt cannot be taken where the violation relates to an order which is inferential, deductive, implied and which is open to debate and argument. Therefore, the High Court was justified in not proceeding in contempt against the respondent on the grievance made in the application from which this appeal has come up for disposal.

12. As regards the question of entitlement to back benefits, the established proposition is that where the order of dismissal or removal has been set aside unconditionally, found to be without jurisdiction and uncalled for, necessarily the back benefits have to be paid. It has to be paid under the authority of the Tribunal or person setting aside the order of dismissal and if no such order is passed, then under the orders of the competent authority in the matter. Where full relief is not granted, the proper course in the absence of express order to that effect is to seek appropriate redress either under the Industrial Relations Ordinance or under the Civil Servants Act, as the case may be. Where, however, the order of reinstatement is conditional, as was in the case of the appellant, that G an enquiry could still be made into his conduct and his conduct was considered such as to call for a departmental enquiry, then the entitlement with regard to back benefits had necessarily to wait till the final determination with regard to his conduct. If he was found at fault then the competent authority could justifiably deny him part of the back benefits. Mere setting aside of the order of dismissal, irrespective of whether it is set aside conditionally or unconditionally, would not, as claimed by the appellant, entitle the affected functionary to claim arrears of pay and back benefits. Similarly the continuance of the enquiry on the same charges would also disentitle him, till the conclusion of the enquiry and the determination of the responsibility, to back benefits.

13. In view of the foregoing reasons we find that no case for proceeding in contempt against the respondent was made out and the High Court justifiably restrained itself from proceeding in the matter.

14. It also appears from what has been stated by the learned counsel for the appellant in the application that the declaration with regard to subsequent enquiry has been obtained and those orders have separately afforded an opportunity to the appellant to contest on merits the entitlement with regard to back benefits. Hence, we find no merit in this appeal and dismiss the same with no orders as to costs.