PLJ 2022 Lahore (Note) 127
Constitution of Pakistan, 1973--
----Art. 199--Charge of misconduct--Termination from service--No show-cause notice was issued and no inquiry and conducted--Contractual service--Grievance petition--Dismissed--Petitioner was reinstated in service in appeal with direction for grant of back benefits--Entitlement for back benefits--During intervening period of termination petitioner remained employed or earned his livelihood, grant of back benefits was a grace--Dismissal of petitioner was declared illegal without attending to merits of case, entitlement of back benefits will be put off till the fault of petitioner and his working for gainful; employment during intervening period are determined through an inquiry--The full back benefits can be paid by authority as held by apex Court--Petition allowed.
[Para 4 & 10] A & B
2013 SCMR 752, 2021 PLC (CS) 762 & 2014 SCMR 1843 ref.
Raja Tasawar Iqbal, Advocate for Petitioner.
Ch. Fiaz Ahmad Sanghairah, Advocate for Respondents Nos. 1 and 2.
Date of hearing 7.3.2022.
PLJ 2022 Lahore (Note) 127
Present: Ali Baqar Najafi, J.
MUHAMMAD ASGHAR--Petitioner
versus
LESCO etc.--Respondents
W.P. No. 26025 of 2015, decided on 7.3.2022.
Order
Through this constitutional petition, the petitioner has challenged the judgements dated 25.02.2013 and 23.04.2015 passed by Respondents No. 4 and 5, respectively to the extent of withholding of 50% back benefits with a further prayer to grant 100% consequential back benefits on his reinstatement.
2. Brief facts giving rise to the filing of this constitutional petition are that the petitioner being a workman was terminated from service without holding any inquiry and without his fault, therefore, he filed a grievance petition before the Punjab Labour Court No. 3, Ferozewala which was transferred to Punjab Labour Court No. 10, Sahiwal and vide order dated 25.02.2013 it was held that show-cause notice dated 04.05.2006 and termination order dated 05.05.2006 were illegal, declared it void and therefore, set it aside resulting into acceptance of the grievance petition and reinstatement of the petitioner in service but with 50% back benefits. Both the petitioner and Respondent No. 2 preferred appeals before the Punjab Labour Appellate Tribunal No. II, Multan. On 23.04.2015 both the appeals were dismissed upholding the reinstatement of the petitioner with 50% back benefits, hence this writ petition only by the petitioner.
3. Learned counsel for the petitioner contends that the petitioner is entitled to 100% back benefits and places reliance on case titled "Independent Newspapers Corporation (Pvt.) Ltd. and another versus Chairman, Fourth Wage Board and Implementation Tribunal For Newspaper Employees, Government of Pakistan, Islamabad and 2 others"(1993 SCMR 1533) and "Sohail Ahmed Usmani versus Director-General Pakistan Civil Aviation Authority and another" 2014 SCMR 1843).
4. Conversely, learned counsel for Respondents No. 1 and 2 contends that no independent and thorough inquiry was conducted to unearth the factum that during intervening period of termination the petitioner remained employed or earned his livelihood, therefore, even the grant of 50% back benefits was a grace.
5. Arguments heard. File perused.
6. Admittedly, the petitioner was appointed on contract basis as ALM in LESCO on 13.11.2003 and after 2½ years, the Deputy Manager (Operation) LESCO Division, Tehsil Depalpur, District Okara had lodged a complaint against him on the allegations as follows:
"During the general checking on 04.05.2006 undersigned checked the meter of Ref: No. 07-01463-08499005 in the name of Shamas Ali son of Muhammad Ali R/o Chak No.08-D Maroof and found reading at site 9425 and 2547 units were pending. After consulting the record from Sub-Division it came to the notice of undersigned that in 03/2006 M/R Muhammad Imtiaz charged reading 9228 units advance 2375 whereas consumer was charged reading as 7038 with advance 175. In this way 2200 units were not charged. After investigating the matter it has been noticed that you firstly met the consumer and convince him for reversing the pending units with bad motive. Then you accept Rs. 1500/- as advance out of Rs. 7000/- (Total amount of agreement) as bribe. You also deliberately misplaced the kalamzoo card from kalamzoo book. You washed/cut the changed/billed units from CP-21 on both copies. Your this act tantamount to be misconduct at your part."
7. Without waiting for ten days to file a reply, the petitioner was terminated from service and his departmental appeal was also rejected on 18.07.2007 whereafter the grievance petition was filed. On 11.11.2009 the grievance petition was dismissed being barred by time against which an appeal was field by the petitioner before the Punjab Labour Appellate Tribunal, Lahore who vide order dated 15.06.2011 set aside the order of the Punjab Labour Court and remanded the case with a direction to decide it afresh. The case of the petitioner is that he was a workman, therefore, was amenable to the jurisdiction of the Labour Court.
8. Admittedly, neither any show-cause notice was issued to the petitioner nor he was associated with any regular inquiry and as such was condemned unheard. The question of misconduct was not properly probed into as no statement of an aggrieved person was recorded to prove the accepting of the bribe by the petitioner. Obviously, the allegation of misconduct can only be proved in an inquiry of facts which was not conducted at all. The petitioner was reinstated in service but was granted only 50% back benefits vide order dated 25.02.2013 passed by the Punjab Labour Court No. 10, Sahiwal. The learned Punjab Labour Appellate Tribunal also held the same view and dismissed the appeal while observing that no case for enhancement of back benefits from 50% to 100% could be made out.
9. Only controversy before this Court is as to whether in the event of reinstatement of a contractual employee can he be awarded 100% back benefits particularly, when the allegation of misconduct was levelled but neither any show-cause notice was issued nor any inquiry was conducted. Learned counsel for the petitioner has relied upon case titled "Chairman, State Life Insurance Corporation of Pakistan, Karachi and others versus Siddiq Akbar" 2013 SCMR 752) in which it was held in paragraph-7 that after exoneration from the charges of misappropriation the employee was reinstated in service since dismissal could not be attributed as his fault, therefore, absence from duty was not voluntary act on his part but he was restrained from attending the office. In "Sohail Ahmed Usmani versus Director-General Pakistan Civil Aviation Authority and another" (2014 SCMR 1843) it was held in paragraph-10 that whenever the reinstatement is made the back benefits should be allowed unless it was proved that the appellant had obtained a gainful employment during the period of dismissal or making some earnings and where the affidavit was not countered by the respondents, it should be accepted as a whole. In this behalf it is worth mentioning that no record is available to suggest that the petitioner was working or not working for gainful employment during the period of dismissal. However, in case titled "Muhammad Sharif and others versus Inspector General of Police, Punjab, Lahore and others"(2021 PLC (C.S.) 762) it was recently held by the Hon'ble Supreme Court as follows:
"20. We, therefore, hold that a civil servant on unconditional reinstatement in service is to be given all back benefits and the only exception justifying part withholding of back benefits could be that he accepted gainful employment/engaged in profitable business during the intervening period.' In case, the dismissal/removal of a civil servant is declared illegal for a defect in disciplinary proceedings without attending to the merits of the case, the entitlement to back benefits may be put off till the inquiry is conducted in the matter finally determining the fault of the civil servant. In case, where there is some fault of the civil servant, including a situation where concession of reinstatement is extended to the civil servant while applying leniency or compassion or proportionality as standard and where penalty is modified but not wiped off in a way that the civil servant is restored to his position, the back benefits will be paid as determined by the authority/Court in the manner discussed above in this judgment. We, however, reiterate that "gainful employment/profitable business" creates an overarching exception that would cover all cases involving the question of back benefits".
10. Admittedly, the dismissal of the petitioner was declared illegal without attending to the merits of the case, therefore, entitlement of back benefits will be put off till the fault of the petitioner and his working for gainful employment during the intervening period are determined through an inquiry. The full back benefits can be paid by the authority as held by the apex Court.
11. For the foregoing reasons, this writ petition is allowed to the extent of withholding of 50% back benefits but the matter is remanded to the Labour Court No. 10, Sahiwal to hold an inquiry in view of the above observations to determine as to whether the petitioner worked for gainful employment/profitable business during the intervening period to justify withholding of 50% back benefits.
(Y.A.) Petition allowed
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