' GHULAM DASTAGIR A. SHAHANI, J.--- This petition has been filed by one Ashraf Ali Shaikh (appellant) challenging the orders passed on 7-8-2007, by the learned Presiding Officer Labour Court No,VI, Hyderabad, on Application No,175 of 2006, submitted under section 46(3) of Industrial Relations Ordinance, 2002.
2. Brief facts of the case as alleged are that, above named appellant was serving as Junior Store- Keeper with respondent No,1 and in the night of 18th and 19th August, 1993, he saw lock of main gate and barbed wire of rare side broken. Not only this, but he also found that some material was also missing. He informed the matter to the then XEN, who recorded the F.I.R. During investigation police arrested the appellant in suspect, subsequently he was released being innocent. However, on 16-7- 1996 a show-cause notice was served upon him, alleging therein that, on physical verification of Warehouse NTDC Jamshoro, shortage of material worth Rs,7,97,101 and surplus of Rs,2,32,137 was pointed out and appellant was suspected to be a part of particular mischief. According to the appellant, notice was replied but without conducting regular inquiry and issuance of final show- cause A notice, as well as without providing opportunity of being heard, appellant was. Dismissed from service. He preferred departmental appeal, but it was rejected, as such appeal was preferred before Federal Service Tribunal, which was disposed of with directions, to hold fresh inquiry after giving full chance of defence and cross-examination of witnesses to the appellant and he was reinstated in service. However, back-benefits were left over the result of fresh inquiry. From record further reveals1 that in compliance of the directions issued by the Federal Service Tribunal inquiry was ordered and Committee was constituted, and after usual inquiry, appellant was found to be negligent and responsible of shortage of material amounting to Rs,13,536.06, as such penalty of stoppage of one increment for two years and recovery of Rs,13,536.06, as losses sustained by the authorities, was imposed. Being dissatisfied, departmental appeal was filed by the appellant, but same was rejected, as such after service of grievance notice, Application No,175 of 2006, under section 46(3) of Industrial Relations Ordinance 2002 was submitted with Labour Court No,VI, Hyderabad with a prayer that, he may be restored to his due position with all consequential benefits and orders passed by the Authority be set aside. However, on 7-8-2007 application was disposed of by the Presiding Officer Labour Court No,VI. Hyderabad, and penalty imposed upon the appellant was declared to be unjustified and illegal. So far back-benefits were concerned, learned Presiding Officer observed that after reinstatement the appellant was in service, as such back- benefits cannot be awarded to him, for which he should approach proper Forum, if desires. Hence present appeal.
3. Mr. Mehmood Hussain Siddiqui, learned counsel for the appellant states that inquiry conducted against the appellant does not prove the responsibility of the appellant for shortage of material, though fresh inquiry was conducted in compliance of the orders passed by Federal Service Tribunal, as such appellant is entitled for all benefits. Reliance is placed on the case of National Bank of Pakistan v. The Sindh Labour Appellate Tribunal, Karachi and another 1991 PLC 213 and the.
Case of National Bank of Pakistan, Hyderabad v. Sindh Labour Appellate Tribunal and another 1993 PLC 57 respectively.
4. On the other hand, Mr. Muhammad Nawaz, learned counsel for the respondents Nos.1 and 2 states that, appellant is not entitled for such benefits, as question of back-benefits was left over the result of de novo inquiry and such inquiry was completed within a particular time, as such, the appellant cannot claim back-benefits, and supported the order passed by learned Labour Court No,VI, Hyderabad.
5. Heard Mr. Mehmood Hussain Siddiqui, learned counsel for the appellant, as well as to Mr. Muhammad Nawaz learned counsel for the respondents Nos.1 and 2 and with their assistance perused the material available on record.
6. So far legal position/jurisdiction as to whether Labour Court can grant back-benefits it has been held that once the Labour Court/Labour Appellate Tribunal had come to the conclusion that 'termination of service of an employee was unlawful, such employee as a matter of course should be granted back-benefits unless employer was able to D establish by cogent evidence that concerned employee had been gainfully employed elsewhere, and initial burden to prove lay upon the employer and not upon the employee to prove that such employee was gainfully ,employed during the relevant period. So far present case is concerned, the issue involved is whether after reinstatement in service by the Federal Service Tribunal, on failure to prove the responsibility of appellant for shortage of material and declaration that penalty imposed upon him was unjustified and illegal, the Labour Court was in a position to award back-benefits to the appellant. On perusal of record it reveals that original act of dismissal of the appellant remained no more and he was reinstated with directions to respondents for holding fresh inquiry after giving full chance of defence and cross-examination to the witnesses, and back-benefits were left over the result of de novo inquiry. In compliance of Federal Service Tribunal orders, a committee was constituted, inquiry was conducted and penalty of stoppage of one increment for two years and recovery of Rs,13,536.06, as loss sustained by the Authority due to negligence was imposed by the Authority upon the appellant, but that was also declared to be unjustified and illegal, vide order dated 7-8- 2007 by the Labour Court No, VI, Hyderabad. Admittedly, no evidence has been brought on the record by the E respondents Nos.1 and 2 to establish that appellant/employee was gainfully employed elsewhere, as such burden lies upon the employer and that had not been discharged.
From order dated 7-8-2007 it reveals that during inquiry, security staff failed to discharge their duty when the lock of main gate and barbed wire of rare side of the store were found broken, not reported the matter to the Executive Engineer, therefore, security staff was responsible for the theft of material amounting to Rs,47,126.28 and inquiry committee put entire responsibility over the security staff. Even otherwise, nothing has come on the record that what action was taken against security staff, whether amount of Rs,47,126.28 is recovered from delinquent official, as appellant only is not responsible to look after .The affairs of the office, but his senior officers are also responsible to some extent.
7. The law referred by the learned counsel for the appellant is so relevant mostly having similar facts, as nothing has brought on record by the respondents Nos.1 and 2 in the present matter also, to establish that the employee/appellant was gainfully employed elsewhere.
8. In view of aforesaid circumstances on reinstatement in service of the appellant and on failure of fresh inquiry and observation of the Labour Court No,VI, Hyderabad that penalty imposed upon him is unjustified and illegal, the appellant become entitled for back-benefits for the period, for which he had not been found to be gainfully employed elsewhere, therefore, the order passed on 7-8- 2007 by Labour Court No,VI, Hyderabad, is modified to the extent that appellant is entitled for back- benefits for the period, for which he had not been employed elsewhere.
' With above observation Labour Appeal No,118 of 2007 is disposed of in limine.