GENERAL MANAGER, NATIONAL RADIO TELECOMMUNICATION CORPORATION, HARIPUR, DISTRICT ABBOTTABAD vs MUHAMMAD ASLAM and 2 others

' ABDUL QADEER CHAUDHRY, J.--This appeal by leave of the Court is directed against the judgment of the High Court dated 23-10-1989.

2. The facts of the case are that the respondent was employed as peon in the Appellant's Corporation. On 8-8-1985 on his application he got issued a gate pass from the Sales Officer in connection with the purchase of two pieces of chip board stands at a cost of Rs,5 each. According to the appellant instead of taking out chip board stands he fraudulently misused the said gate pass and took with him two pieces of introductory gates of semi-round shape made of iron angle board and wood. He was detected and caught red-handed at the main gate by the security staff on duty. He was served with a show-cause notice on 11-8-1985. The respondent denied the charge.

A departmental inquiry was held. The Inquiry Officer in his report dated 17-8-1985 held the respondent guilty of misconduct. On 18-8-1985 the respondent No,1 was dismissed from service on the charge of misconduct. On 21-8-1985, the respondent No,1 asked for clearance of his entire service dues. He was paid all his service dues on 22-8-1985.

3. After serving a grievance notice, the respondent approached the Labour Court under section 25- A of the. I.R.O. On 16-10-1985. The Labour Court conducted the inquiry and vide order dated 10-3- 1986 held that the respondent No,1 could not be saddled with mala fide intention of defrauding the company. However, since he had received his service dues without any protest, he was not entitled to re-instatement.

4. The respondent No,1 filed an appeal before the N.-W.F.P. Appellate Tribunal against the order of Labour Court. The appellant also filed cross-objections. By order dated 5-5-1986, the learned Appellate Tribunal dismissed the appeal of respondent No,1 and upheld findings of the Labour Court on both the counts. It was held by the Appellate Tribunal that the misconduct was not proved and as the respondent had received all his dues he was not an aggrieved person. It was specifically held by the Appellate Tribunal "under these circumstances where was the misconduct which the appellant committed".

5. The Labour Court as well as Labour Appellate Tribunal in refusing the relief to the respondent relied on some precedents. As he was not reinstated.; the respondent No,1 challenged these orders before the High Court in writ petition. The High Court followed Climax Engineering Co. Ltd. v. Shabib Ahm ad etc. (1985 PLC 400) and took a different view.

6. Leave was granted to consider; whether the view taken by High Court is correct and also to consider the question whether the respondent's dismissal from service was not for serious reasons as against the finding of the lower Courts that the charge against the respondent was baseles and for some petty matters.

7. We have heard the learned counsel for the parties. As regards the merits of the case, the entire evidence has been read by the learned counsel for the parties. P.W.2 Dr.Hamid-ul-Haq. Has deposed that he had submitted an application on 7-8-1985 for issuing of board.Be directed the petitioner, as-the board was ready for delivery at Factory Carpentary shop, he should collect the same after getting gate pass. The Inquiry Officer and the witnesses have admitted that Dr. Hamid- ul-Haq had applied for the board. R.W.1 has also admitted that the respondent told him that the board was meant for Dr. Hamid-ul-Haq. Similar concessions were made by other witnesses. The Labour Court, the Appellate Tribunal and the High Court have concurrently recorded a finding of fact that there was no misconduct.

8. The Labou. Court and the Tribunal on the basis of some judgments have held that as the respondent No,1 had received all hi.; dues without any protest, therefore he was not entitled to the relief of re-instatment. However, the High Court in the Constitution jurisdiction set aside such finding and relied upon Climax Engineering Co. Ltd., Gujranwala (1985 PLC 400) wherein it has been observed "that it may be correct that when an employee's services are terminated and he accepts all his dues in final settlement of the dispute between him and his employer and virtually says goodbye to his employer, he accepts the termination of his service. However, it will be entirely different if an employee's services are terminated and he is handed over the dues which he had earned while serving. He has the right to accept the payment as he had served". This controversy was considered in a number of cases. Reference may be made to: 1982 PLC 844 (Mrs. Shah Jahan v. M/s. Pfizer Laboratory Ltd.).

1984 PLC 359 (Ghulam Nabi v. M/s. Siemens Pakistan Engineering Co., Lahore).

1984 PLC 786 (Muhammad Pervaiz v. M/s. Exon Chemical (Pak.) Limited).

1985 PLC 1072 (Baluchistan Glass Ltd. v. Niaz Muhammed and others).

1973 PLC 297 (Mirza Majeed Baig .Etc. v. M/s. Futahally Chemical Ltd etc.).

1983 PLC 210 (Rehman v. Sindh Labour Appellate Tribunal, Karachi etc.).

9. Mere acceptance of legal dues by an employee does not amount to waiver so as to estop him from challenging the order of dismissal. Such remedy cannot be denied to him if the charge of misconduct has not been established. In case order of termination is held to be mala fide or the charge of misconduct has not been proved, the payment of entire dues will not disentitle an employee to seek further relief of re-instatement from the Court. It cannot be accepted as a rule in each and every case that receipt of dues would debar an employee to approach the Labour Court for the redress of his grievance. The law has provided a forum to settle the dispute between an employer and employee including the question of misconduct. The jurisdiction of the Courts could not be taken away on the plea that after the payment had been received by a worker he is no more an aggrieved person. It is always a question of fact to be determined on the basis of record whether an employee has accepted his termination and severed his relationship with the employer. After termination of his service, out of free will, he accepted all his dues as full and final settlement of the dispute. But this act of the employee has discontinued his connection with his employer for good. After severence of such relationship there is nothing to be adjudicated upon by the Labour Court as relationship of the parties as employer and employee has ceased to exist.

10. In the present there is concurrent finding by all the Courts that the charge of misconduct has not been established. Therefore, the respondent was an aggrieved person and he could challenge his dismissal order in spite of the fact that he had received all his dues. The learned counsel for the appellant has referred to certain pieces of evidence to show that the misconduct of the respondent has been established. The respondent admitted that he had applied for chip board. He was granted pass for removing the chip board. The application of Dr. Hamid-ul-Haq was still under process. No sanction had been made by the authorities in his favour. No pass was issued to Dr. Hamid-ul-Haq for taking out the board. The report of the Inquiry Officer is based on evidence and there is clear misreading of evidence by all the Courts below. There may be two possible views of the matter but that is not sufficient for, interference by this Court; because the evidence has been appreciated by the Courts and a decision has been recorded against the appellant, this Court will not reevaluate the evidence. The Courts have recorded a finding of fact in favour of the respondent. The order of re-instatement passed by the High Court in favour of the respondent is legal and proper.

11. The next question arises whether in the circumstances of the present case, the respondent is entitled to back benefits. This Court in 1992 PLC 415 (National Bank of Pakistan etc. v. Punjab Tribunal and others) has observed "where order of dismissal or removal had been set aside unconditionally back benefits have to be paid". In PLD 1990 SC 787 (Qadeer Ahmad v. Punjab Labour Appellate Tribunal, Lahore etc.) it has been observed in para 12 of the judgment as under:-- "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 had 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 an inquiry could still be made into his conduct and his conduct was considered such as to call for a departmental inquiry, 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 functionay to claim arrears of pay and back benefits. Similarly the continuance of the inquiry on the same charges would also disentitle him, till the conclusion of the inquiry and the determination of the responsibility to back benefits."

12. The matter will not end here because further question is to be examined whether the respondent was engaged in some gainful employment during this period. This Court in 1991 SCMR 2087 (Muhammad Bashir etc. v. Chairman, Punjab Labour Appellate Tribunal, Lahore etc.) has observed as under:-- "However, following two principles are established:--

(a) that back benefits do not automatically follow the order of reinstatement where the order of dismissal or removal has been set aside.; and

(b) as regards the matter of onus of proof in cases where a workman is entitled to receive the back benefits it lies on the employer to show that the workman was not gainfully employed during the period the workman was deprived of service till the date of his reinstatement thereto, subject to the proviso that the workman has asserted at least orally, in the first instance, that he was gainfully employed elsewhere. On his mere statement to this effect the onus falls on the employer to show that he was so gainfully employed. The reason is that back benefits are to be paid to the workman not as a punishment to the employer for illegally removing him but to compensate him for his remaining jobless on account of being illegally removed from service."

13. There is nothing on record to show that the respondent was not doing any job after his services were terminated. As the respondent has not said a word about it, the appellant was not obliged to lead any evidence in rebuttal. Keeping in view the above facts and principle laid down by this Court in Muhammad Bashir's case, the respondent is not entitled to back benefits. With this modification of the order of the High Court, this appeal is dismissed with no order as to costs.