' RAJA FAYYAZ AHMAD, J.--- These Civil Petitions Nos.59 to 70-Q of 2006 are directed against the consolidated judgment, dated 25-4-2006 passed by the learned Single Judge of the High Court of Balochistan, Quetta, whereby Labour Appeals filed by the petitioner-Company, as well as; the Review Applications (C.M. Nos.1 to 4 of 2005) have been dismissed subject to the modification of the judgment sought for to be reviewed. The operative part of the impugned judgment is reproduced hereinbelow:-- "....However, it is to observe that the relation between the company and the workers has become strained and there exist serious differences between the parties making it difficult if not impossible for them to work in a harmonious manner and in such circumstance remedy has been provided under section 46(5) of I.R.O., 2000 whereby the workers can be compensated in lieu of their reinstatements. The counsel for the workers has impliedly accepted the said position by raising alternate plea for awarding compensation to the workers in lieu of their reinstatements in service. Having in view the above attending circumstances, I deem it appropriate to amend the order of reinstatement of the workers by granting them compensation of 15 months pay and allowances in lieu of their reinstatement in addition to the back-benefits for the period they remained out of service till passing of this order."
2. Vide judgment impugned herein, the order dated 18-10-2005 passed in Labour Appeals Nos.14 to 17 of 2005 has been modified by the learned Single Judge in the High Court and; subject to such modification of the above said order, Review Applications (C.M.As. Nos.1, 2, 3 and 4 of 2005), as well as; Labour Appeals Nos.2 to 9 of 2006 have been dismissed.
' As common question of facts and law points are involved in these matters decided by the single judgment, therefore, the same are disposed of by this common order.
3. The precise relevant facts of these matters are that on or about 8-4-2000, show-cause notices were issued to the respondents in these civil petitions namely, Abdul Hameed, Ghulam Haider, Abdul Rasheed and Muzaffar Ahmed Khan by the petitioner-Company that they are indulging in the affairs of management and are acting in a disorderly manner while leaving the place of duty during working hours in breach of the office discipline and also misuse the company telephone for private purposes, taking away the official files and some important documents from the office of the Plain Manage.
' The above said workers submitted their replies to the show-cause notices denying the allegations as contained therein.
' The petitioner-Company thereafter vide letter dated 31-8-2000 terminated the services of the said workers, who served the Company with the grievance notices and on failure to redress their grievance, they filed grievance applications under section 25-A of Industrial Relations Ordinance, 1969 before the Presiding Officer, 3rd Labour Court Balochistan at Hub, which were dismissed by the learned Labour Court vide judgment dated 30-3-2002. The said workers feeling aggrieved of the dismissal of their grievance applications, filed appeals before the learned High Court which were disposed of by means of order, dated 9-12-2003 in the following terms:-- "Taking into consideration the above submissions made by the learned counsel for the parties, the termination order dated 31-8-2000 is set aside with the consent of the parties. Resultantly the appellant is reinstated w,e,f, 31-8-2000; however, the respondent shall be at liberty to hold fresh inquiry in the matter if so desired. The impugned order dated 30-3-2002, accordingly, is set aside and the appeal is allowed with no order as to costs."
4. The respondents/workers in these petitions in pursuance of the order passed by the learned Single Judge of the High Court statedly approached the company by means of application dated 13-12-2003 for their reinstatement in service. Consequently, the petitioner-Company vide order, dated 6-2-2004 took them in the service from the date of their reporting for duty on the same terms and conditions as contained in their appointment letters by posting them at the stations given in the letters of even date.
5. This kind of reinstatement order was not accepted by the respondents, therefore, they served the company with the grievance notices dated 16-2-2004 claiming therein that they be reinstated on the jobs for which they were employed at Hub. The petitioner-Company refused to redress the grievance of the respondents/workers, hence; they filed grievance Applications Nos.33, 34, 35 and 147 of 2004 under section 46 of the Industrial Relations Ordinance, 2002 (I.R.O., 2002) with the above said learned Labour Court.
6. These grievance applications were resisted by the Company by filing replies. No evidence in rebuttal was produced by the petitioner-Company before the learned Labour Court, which partly accepted the grievance applications vide order, dated 21-5-2005 and the petitioner-Company was accordingly directed to pay to the said respondents/ workers their wages along with benefits and other accrued privileges in accordance with the law from the date of their removal from service i,e, 31-8-2000 in terms of the order of the Honourable High Court dated 9-12-2003. The grievance applications were disposed of accordingly operative part of the order of the learned Labour Court is reproduced hereinbelow:-- "In view of above discussion I am of the considered opinion that the applicant is entitled to receive the wages, benefits as provided under the law as ordered by the Honourable High Court of dated 9-12-2003 from the date of his reinstatement wiBalochistanth effect from 31-8-2000 till the order dated 9-12-2003 passed by the Honourable High Court of Balochistan as after rejoining his service and conducting a fresh inquiry once again the applicant was removed from his service on 30-6- 2004 and that matter is also pending before this Court.
' Needless to add here that the observations made hereinabove, qua the other matters pending before this Court are purely tentative in nature which shall not affect the matters pending before this Court which shall be decided on their own merits.
' In view of above mentioned facts and circumstances of the case application filed by the applicant is partly accepted and respondent is hereby directed to pay him wages, benefits and privileges in accordance with law from the date of his removal i,e, 31-8-2000 to the date of order on 9-12-2003, passed by the Honourable High Court of Balochistan.
' Application filed by the applicant is disposed of accordingly, the parties are left to bear their own costs."
7. The above said order of the learned Labour Court was challenged by tiling Labour Appeals Nos.14 to 17 of 2005, which were disposed of with the consent of the parties by the learned Single Judge in the High Court vide order, dated 18-10-2005. The operative part of the order passed in the above said appeals reads as under:-- "Accordingly with the consent of the parties the order dated 21-5-2005 passed by 3rd Labour Court Balochistan at Hub is upheld and the company is allowed to pay the wages to the respondent/worker within 15 days by depositing pay order in the Labour Court for the amount payable to respondent/worker for the period from 31-8-2000 to 9-12-2003."
8. The petitioner-Company thereafter filed C.M.As. Nos.1 to 4 for review of the above order.
9. During the above said period, the petitioner-Company in continuation of the earlier show-cause notices dated 8-4-2000 and the order of the learned High Court dated 9-12-2003 proceeded to hold fresh inquiry and issued notices dated 7-6-2004 to the respondents/workers in their petitions, to which replies dated 14-6-2004 were submitted by them. During the course of inquiry being conducted into the allegations as contained in the subsequent notices, the said respondents disappeared, however, in the light of the material collected by the Inquiry Officer and the statements of the witnesses recorded during the course of inquiry, report was submitted by the Inquiry Officer to the management of the petitioner-Company on the basis whereof the said respondents were dismissed from service vide order/letter dated 30-6-2004.
10. The workers thereupon served the petitioner-Company with the grievance notices and thereafter Grievance Applications Nos.167, 169, 170 and 172 of 2004 were filed before the learned Labour Court, which were seriously resisted by the petitioner-Company by means of written statements. Both the parties in these grievance applications produced documentary and oral evidence in support of their claims and pleas.
11. The learned Labour Court after hearing the parties vide judgment, dated 31-12-2005 set aside the order of dismissal of the respondents from service and directed the petitioner-Company to reinstate the workers in service with full back-benefits in accordance with law.
12. This order was challenged by the petitioner-Company through Labour Appeals Nos.2, 3, 4, 5, 6, 7, 8 and 9 of 2006 before the learned High Court of Balochistan, Quetta diimissed vide impugned judgment.
13. As hereinabove mentioned vide order, dated 18-10-2005 passed by the learned. High Court, the petitioner-Company was directed to grant back-benefits to the respondents/workers for the period from 31-8-2003 to 9-9-2003 i,e, the date on which the Honourable High Court of Balochistan with the consent of the parties accepted the Labour Appeals of the respondents and they were directed to be reinstated in service w,e,f, 31-8-2000 by holding that the petitioner-Company shall be at liberty to hold fresh inquiry into the matter if so deem fit and appropriate. The review of the order dated 18-10-2005 passed by the learned High Court was sought for on the ground that back- benefits were not granted to the respondent/workers by the Honourable Court vide judgment, dated 9-12-2003 passed in the initial round of litigation, whereby they were reinstated,in service.
14. The learned Advocate Supreme Court for the petitioners, as well as; the respondent in Civil Petition No,59-Q of 2006 for himself and for the other respondents in the remaining civil petitions have been heard at some length.
' Mr. H. Shakeel Ahmed learned counsel for the petitioner-Company contended that, while modifying the earlier judgment passed by the learned Judge in the High Court in Labour Appeals Nos.14 to 17 of 2005, the learned Judge fell into serious error in ignoring the, provisions of section 46(5) of the Industrial Relations Ordinance, 2002, hereinafter referred of as. "the. Ordinance", whereby the Labour Court, in case of the termination of services of a workman if found to be wrongful, may award compensation equivalent to not less than twelve months and not more than thirty months basic pay last drawn and house rent, if admissible, in lieu of reinstatement in service of the worker in service; not granted to the respondents compensation of fifteen months pay and allowances in lieu of their reinstatement in service but in addition thereto the back-benefits for the period they remained out of service till date of the passing the impugned judgment was allowed to them, which reliefs according to the learned counsel could not have been simultaneously granted to the respondents. He strenuously contended that either the respondents would be reinstated in service with back-benefits or in the alternative in lieu of their reinstatement in service could be compensated with the basic salary up to thirty months as envisaged by section 46(5) of the.
Ordinance, hence; the impugned judgment on this score could not sustain in law. Except above said submission made by the learned counsel, no other argument or contention has been put forth on behalf of the petitioner-Company.
15. Mr. Abdul Hameed for himself and on behalf of other respondents in these petitions submitted that the impugned judgment is unexceptionable for having been passed on scrutiny and appraisal of entire evidence, documentary and oral, available on record. According to the said respondent, since the workers/respondents were found concurrently by both the learned .Courts to have remained jobless from the date of termination of their services by the petitioner-Company, therefore, the learned Judge in the High Court has appropriately and lawfully granted them the reliefs with respect to the full benefits from the date of their termination of their services till the date of impugned judgment, hence, these petitions deserve to be dismissed.
16. The submissions put forth on behalf of the petitioner-Company by the learned counsel and respondent Abdul Hameed have been considered in the light of the impugned judgment including the judgments earlier passed by the learned Single Judge in the High Court and the learned 3rd Labour Court gone through carefully and minutely besides the documents appended with these petitions in the light of relevant provisions of the Ordinance and in particular the provisions of section 46(5) (ibid). The Honourable Judge, while dealing with the factual aspects of these matters with reference to the earlier order passed in labour appeals decided by the learned High Court, has noted that the respondents were ordered to be reinstated in service vide judgment dated 9-12- 2003 by setting aside the termination order dated 31-8-2000 and the petitioner-Company was allowed to hold inquiry into the allegations as contained in the show-cause notices dated 8-4- 2000 but the company before initiating inquiry into the allegations in terms of show-cause notice, dated 8-4-2000 issued second show-cause notice to the workers/ respondents on 24-4-2004 on the. Allegations that they remained absent from duty for more than ten days after their reinstatement on 6-2-2004, on which inquiry was initiated. Simultaneously, another inquiry was directed to be held in respect of the initial show-cause notice, as a result of both the inquiries, two separate orders dated 30-6-2004, terminating their services for having been found guilty of misconduct and for remaining absent from duty for more than ten days were passed. It has further been concluded in the impugned judgment, in view of the material available with learned Appellate Court that the respondents were not in fact reinstated in service, rather; they were taken in the employment of the Company from the date of their reporting for duty, as well as; the petitioner-Company was found to have not allowed the respondents to join their duties, they were performing at the time of termination of their service, which amounted to the non-compliance of the order of the learned High Court, dated 9-12-2003. The learned Judge after having concluded so, held that the respondents could not be said to have to join their duties after having been reinstated, therefore, on this score, termination of their services vide order, dated 6-2-2004 could not be validated.
17. As regards, the initial show-cause notice, dated 8-4-2000 culminating into termination of their services on the charge of misconduct, it has been noted in the impugned judgment that termination of the services of the respondents on the basis of above said show-cause notice was set aside by the said learned Court vide order 9-12-2003 and the petitioner-Company was allowed to hold fresh inquiry, if so desired, however, it left the matter unattended till issuance of the inquiry notice dated 7-6-2004 and in the meanwhile, inquiry was initiated about the absence of the workers from duty purportedly reinstated on 6-2-2004 but were never reinstated, rather; fresh appointment was offered to them, which they did not accept. It has further been observed in the impugned judgment that not only the inquiry report was improper but the inquiry proceedings also reflected about the partiality of Inquiry Officer for the reasons mentioned in the impugned judgment and finally, it was concluded by the Honourable Judge that the dismissal order of the respondents from the service on the ground of wilful absence from duty for more than ten days and the allegations made in the show-cause notice could not sustain, as well as; illegal. The learned Judge in the High Court on merits of the case and taking into account the submissions put forth on behalf of the parties concluded that the respondents remained jobless after their dismissal from service, which the petitioner-Company failed to rebut nor they were gainfully employed/worked during the period they remained out of service, hence; in such circumstances, the respondents/workers would not be declined the back-benefits which being unexceptionable called for no interference.
' The learned Judge in the High Court, while concluding with the matter, has observed in the impugned judgment that the relations between the Company and the workers had become strained and there exist serious differences between the parties making it difficult, if not possible for them to work in a harmonious manner and in such circumstances the remedy has been provided by section 46(5) of the Ordinance, whereby the workers can be compensated in lieu of their reinstatement to which the workers have impliedly conceded by raising alternate plea for awarding compensation to them in lieu of their reinstatement in service thus; in such view of the matter, the judgment dated 18-10-2005 passed in Labour Appeals Nos.14 to 17 of 2005 disposed of with the consent of the parties was modified vide impugned judgment whereby in lieu of reinstatement of the respondents, compensation of fifteen months pay and allowances in addition to the back-benefits for the period they remained out of service till the date of the said order was also granted in their favour. Accordingly, subject to the above modification, Labour Appeals Nos.2 to 9 of 2006 and C.M.As. Nos.2 to 4 of 2005 seeking review of the order dated 18-10-2005 were dismissed.
18. The careful and minute perusal of the operative part of the impugned judgment reveals that the learned counsel for the respondents/ workers impliedly accepted the position with regard to the compensation E awardable to worker found to be wrongfully terminated from service in lieu of his reinstatement in service; to us could not amount or termed as an express admission or offer for and on behalf of the respondents to be compensated in lieu of their reinstatement in service which on the other hand obviously as against the compensation of fifteen months salary awarded to them would deprive the said respondents/workers from the back-benefits since the date of their termination from service financially detrimental to their interests, hence; the stated implied acceptance of the position relating to the compensation as envisaged by section 46(5) of the Ordinance would not amount to convey in explicit terms that the respondents had accepted to be compensated i,e, awarding them each of fifteen months salary instead of their reinstatement in service from the date of their termination i,e, 31-8-2000. Secondly, the order, dated 18-10-2005 passed by the learned Judge in High Court in Labour Appeals Nos.14 to 17 of 2005 was a consent order, whereby the petitioner-Company was allowed to pay the wages to the respondents within fifteen days of the said order by depositing pay order in the Labour Court for the period from 31-8- 2000 by upholding the order of the 3rd Labour Court, Balochistan, at Hub on 21-5-2005.
19. Adverting to the contentions of the learned counsel for the petitioner-Company, we are of the considered opinion that the provisions of section 46(5) of the Ordinance leads to no ambiguity or confusion, which provides that if the termination of the service of a workman is held to be wrongful by a Labour Court, it may award compensation equivalent to not less than twelve months and. Not more than thirty months basic pay last drawn and house rent if admissible in lieu of reinstatement of the worker in service, clearly laid down that even if a worker had been found to have been wrongfully terminated from service instead of making the order for his reinstatement in service, he could be compensated in terms of above said section and when such a worker is to be compensated in lieu of his reinstatement, such a worker obviously would not be entitled for the back-benefits for the period for which he F remained out of service, thus, both the reliefs simultaneously are not permissible under the law. The labour appeals have been dismissed on merits and against the impugned judgment to such extent no contention has been raised nor any argument canvassed on behalf of the petitioner-Company, therefore, the petitions against the impugned judgment also found to be devoid of any substance are dismissed except to the extent of the modification made in the order, dated 18-10-2005 passed in the above said appeals sought for to be reviewed through the above noted C.M.As. For the above mentioned reasons could not sustain, therefore, by converting the related petitions into appeals the impugned judgment to the extent of modification made in the appellate order dated 18-10-2005 is set aside. The result is that the appeals arising out of orders passed in the said C.M.As. Are disposed of in the above terms with no order as to costs.