Shujaat Ali Khan, J. Through this single judgment, I intend to decide W.P.No.18156/2017 (this petition), W.P. No.25477/2020 (connected petition) and W.P. No.249546/2018 (counter petition) having commonality of law and facts.
2. Briefly put, Riaz Hussain, petitioner in this petition as well as in WP No.25477/2020 and respondent No.1 in W.P. No.249546/2018 (hereinafter to be referred as "the petitioner") joined Yousaf Sugar Mills, Marag Abad, Shahpur, district Sargodha as Security Guard. The said Mill was later on sold out and named as Abdullah Sugar Mills, Sargodha (hereinafter to be referred as the "respondent- Mill"). The petitioner was terminated from service vide order, dated 19.10.2009. Aggrieved of his termination from service, the petitioner filed Grievance Petition before Punjab Labour Court No.5, Sargodha ("the Labour Court") which was accepted vide judgment, dated 09.08.2014 and he was directed to be reinstated in service with all back benefits. Feeling dissatisfied with the decision of the Labour Court, the respondent-Mill filed appeal before the Punjab Labour Appellate Tribunal ("PLAT"), Lahore which was partially accepted through judgment, dated 05.05.2016 and findings of the Labour Court qua grant of back benefits to the petitioner were reversed. Being aggrieved of decision of PLAT to the extent of back benefits, the petitioner has filed this petition.
3. Insofar as connected petition is concerned, the petitioner filed an application seeking his reinstatement in service with all back benefits as per the decision of the Labour Court. During proceedings, on the said application, it surfaced on the scene that Abdullah Sugar Mills (respondent-Mill) was sold out and was re-named as Al-Arabia Sugar Mills, however, the Labour Court vide order, dated 15.01.2018 held the respondent-Mill liable to liquidate the liability of Abdullah Sugar Mills in respect of the petitioner. Being aggrieved of order, dated 15.01.2018, the respondent- Mill filed application for recalling thereof alongwith objection petition. Finally, the Labour Court disposed of the implementation petition, filed by the petitioner, through order, dated 03.04.2018, against which the petitioner filed an appeal before the PLAT but without any success as the PLAT upheld order, dated 03.04.2018 through judgment, dated 13.06.2019. Being dissatisfied with the decisions, dated 03.04.2018 and 13.06.2019, the petitioner filed the connected petition.
4. Insofar as the factual background of the counter petition is concerned, suffice it to note that in the said petition, the respondent-Mill has assailed the vires of judgments, dated 09.08.2014 and 05.05.2016, rendered by the Labour Court and the PLAT respectively.
5. Learned counsel for the petitioner submits that mala fide on the part of the management of the respondent-Mill is evident from the fact that prior to passing penal order against the petitioner neither any Show Cause Notice was issued to him nor any inquiry was conducted; that contumacious conduct of the respondent-Mill is also established from the fact that in the reply, filed to the Grievance Petition of the petitioner, the management of the respondent-Mill took specific plea that he (the petitioner) was not permanent employee of the respondent-Mill but while reinstating the petitioner in the light of the earlier decision of the Labour Court, he was treated as permanent employee; that since the petitioner submitted affidavit to the effect that he remained jobless from the date of his termination from service, he was entitled for back benefits; that since the respondent-Mill failed to prove that requisite procedure was followed before dispensing with services of the petitioner, PLAT was not justified to reverse the findings of the Labour Court on the point of back benefits.
6. In support of connected petition, learned counsel for the petitioner submits that the petitioner submitted Joining Report in the light of the decision of the Labour Court but he was not allowed to do so on the ground that the respondent-Mill was sold out and re-named as Al-Arabia Sugar Mills; that as per direction of the management of the respondent-Mill, the petitioner also submitted joining report in Abdullah Sugar Mills, Depalpur but the same was not accepted and that since the petitioner has already crossed the age of superannuation, he is only entitled for pensionary benefits in the light of the decision of the Labour Court.
7. Mr. Muhammad Irfan Khan Ghazanvi, Advocate, while opposing this petition as well as connected petition and supporting counter petition submits that since grave misconduct on the part of the petitioner was established on record, no illegality was committed by the PLAT while reversing the findings of the Labour Court on the point of back benefits; that since the allegation of absence from duty was established against the petitioner, there was no need to hold an inquiry; that as the petitioner was dismissed from service for more than once, prior to passing of penultimate order subject matter of these petitions, he was not even entitled for reinstatement in service; that when the petitioner himself put his signatures in lieu of receipt of Letters of Explanation issued to him, he could not claim that he was not confronted with the material available against him; that bona fide of the management of respondent-Mill is evident from the fact that it was ever ready to facilitate joining of the petitioner in the light of the findings of the Labour Court which can be confirmed from the fact that the petitioner was allowed to join Abdullah Sugar Mills, Depalpur as Abdullah Sugar Mills, Sargodha was sold out but he refused to join the said establishment on the ground that it was far away from his residence. Relies on Secretary to Government of the Punjab, School Education Department, Lahore and others v. Syed Zakir Ali (2022 SCMR 951), National Bank of Pakistan and another v. Zahoor Ahmed Mengal (2021 SCMR 144), Allied Bank Limited v. Zulfiqar Ali Shar and others (2021 SCMR 1213), Muhammad Anayet Gondal v. Registrar, Lahore High Court, Lahore (2017 PLC (C.S.) 177), Secretary, Industries, Government of Khyber Pakhtunkhwa, Peshawar and another v. Samar Gul and another (2014 PLC 190) and Messrs Allied Precision Engineering Products (Pvt.) Ltd. through Notified Factory Manager and others v. Jhanda Khan Maree and others (2011 PLC 286).
8. Learned counsel for the petitioner, while exercising his right of rebuttal and opposing counter petition, submits that the documents, referred by learned counsel for the respondent- Mill, pertain to one day absence of the petitioner from duty, thus, the same could not be used to terminate his services. Adds that since the dates/period of absence from duty has not been incorporated in the termination letter, the letters of explanation, referred by learned counsel representing the respondent-Mill, are of little value.
9. I have heard learned counsel for the parties at considerable length and have also gone through the documents, appended with these petitions as well as the case-law cited at the bar.
10. Firstly taking up the plea of learned counsel, representing the respondent-Mill that since absence of the petitioner from duty was established on record there was no need to give any Notice or to hold an inquiry, I am of the view that Standing Order 15 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter to be referred as the "Ordinance 1968") deals with the grounds of action by the employer against a workman and procedure for such action, which for convenience of reference is reproduced herein below:- "15. Punishments.- (1).....
(2).....
(3) The following acts and omissions shall be treated as misconduct:-
(a) willful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior;
(b) theft, fraud, or dishonesty in connection with the employer's business or property;
(c) willful damage to or loss of employer's goods or property;
(d) taking or giving bribes or any illegal gratification;
(e) habitual absence without leave or absence without leave for more than ten days;
(f) habitual late attendance;
(g) habitual breach of any law applicable to the establishment;
(h) riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline;
(i) habitual negligence or neglect of work;
(j) frequent repetition of any act or omission referred to in clause (1);
(k) striking work or inciting others to strike in contravention of the provisions of any law, or rule having the force of law;
(l) go-slow.
(4) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and the employer shall institute independent inquiries before dealing with charges against a workman.
Provided that the workman proceeded against may, if he so desires for his assistance in the enquiry, nominate any workmen employed in that establishment and the employer shall allow the workman so nominated to be present in the enquiry to assist the workman proceeded against and shall not deduct his wages if the enquiry is held during his duty hours.
(5) Where, for the purpose of conducting an enquiry into the alleged misconduct of a workman, the employer considers it necessary, he may suspend the workman concerned for a period not exceeding four days at a time so however, that the total period of such suspension shall not exceed four weeks except the matter is pending before an Arbitrator, a Labour Court, Tribunal or Conciliator for the grant of permission under section 47 of the Industrial Relations Ordinance, 1969 (XXIII of 1969). The order of suspension shall be in writing and may take effect immediately on delivery to the workman. During the period of suspension, the workman concerned shall be paid by the employer to the same wages as he would have received if he had not been suspended."
(emphasis provided)
A bird's eye view of the afore-quoted Standing Order makes it abundantly clear that habitual absence without leave for more than ten days constitutes misconduct on the part of a workman.
Insofar as the case in hand is concerned, a cursory glance over the impugned termination order shows that neither it has been specified therein that for how many days the petitioner was absent from duty nor it is clear from the same that as to whether procedure provided under Standing Order 15 ibid was followed or not. Since the impugned termination order is totally silent about the fact that prescribed procedure was adopted or not, the inference, which can safely be drawn, is that the same was issued in flagrant violation of the provisions of Ordinance 1968 in particular Standing Order 15 ibid, thus it was rightly set at naught by the Labour Court.
11. According to Clause 4 of the afore-quoted Standing Order, the employee is entitled to due notice of alleged misconduct by the employer within thirty (30) days from the said action or within thirty
(30) days from the knowledge of the employer. As the allegation of absence from duty against the petitioner fell within the definition of misconduct, the said charge could not be decided without following the procedure provided under Standing Order 15 ibid. Insofar as the case in hand is concerned, neither it is discernable from the record that the petitioner was served with the requisite Notice within thirty days of his absence from duty or any probe was conducted against him prior to termination of his services, thus the findings of the Labour Court directing reinstatement of the petitioner in service cannot be interfered by this Court in exercise of its constitutional jurisdiction.
12. During the course of arguments, learned counsel representing the management of the respondent-Mill specifically pleaded that since the conduct of the petitioner throughout his service with the respondent-Mill remained shabby he was rightly held dis-entitled for back benefits by PLAT. In this regard, I do not see eye to eye with the learned counsel representing the respondent- Mill for the reason that while refusing back benefits to an employee, it is mandatory for the establishment inter-alia to prove that either the reinstatement of an employee in service was conditional or penultimate order issued against him was set aside on technical grounds or he remained gainfully employed elsewhere from the date of his ouster from service till the date of his reinstatement, which is not the position in the case in hand. A cursory glance over judgment, dated 05.05.2016, passed by the PLAT, shows that while reversing the findings of the Labour Court, adverse opinion was formed against the petitioner on the ground that he did not improve despite having been terminated from service in the year 2002. At the cost of repetition, it is observed that according to Standing Order 15 ibid a workman is entitled to be confronted with any adverse material against him within one month from the date of alleged misconduct or from the date when it came to the knowledge of the employer which is not the position in case in hand. It is very strange to note that the termination of the petitioner, in the year 2002, was being used against him by PLAT while deciding appeal of the respondent-Mill in the year 2016.
Considering from another angle, indisputably the termination order issued against the petitioner in the year 2002 was set aside by the Labour Court in the earlier proceedings and while complying with the decision of the Labour Court the petitioner was taken back on duty by the respondent-Mill.
This fact leads to irresistible conclusion that the termination order issued against the petitioner in the year 2002 became non- existent and could not be used against the petitioner in any subsequent proceedings.
13. It is well entrenched by now that when an employee is reinstated in service on the ground that the penultimate order, passed against him, was not in consonance with the law on the subject, grant of back benefits in such cases is rule and refusal is an exception. The Apex Court of the country while dealing with the question relating to grant of back benefits in favour of a reinstated employee in the case reported as Inspector-General of Police, Punjab v. Tariq Mahmood (2015 SCMR 77) inter-alia held as under:- "11. The crux of the above case-law is that the grant of back benefits to an employee who was reinstated by a Court/Tribunal or the department is a rule and denial of such benefit is an exception on the proof of that such a person had remained gainfully employed during such period. The entitlement of back benefits of a person has to be determined on the basis of facts of each case independently. There would be cases at times when no difficulty is felt by the Court or Tribunal to grant the back benefits when there are admitted facts between the parties but when there is a dispute in respect of the facts then of course, the matter had to be referred to the Department." (emphasis provided)
The aforesaid view was reiterated by the Hon'ble Supreme Court in the case reported as Muhammad Sharif and others v. Inspector General of Police, Punjab, Lahore and others (2021 SCMR 962) by inter-alia holding as under:- "10. The "concept of reinstatement into service with original seniority and back benefits" is based on the established principle of jurisprudence that "if an illegal action/wrong is struck down by the Court, as a consequence, it is also to be ensured that no undue harm is caused to any individual due to such illegality/wrong or as a result of delay in the redress of his grievance." If by virtue of a declaration given by the Court a civil servant is to be treated as being still in service, he should also be given the consequential relief of the back benefits (including salary) for the period he was kept out of service as if he were actually performing duties. A civil servant once exonerated from the charges would stand restored in service as if he were never out of it and would be entitled to back benefits."
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 of 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." (emphasis provided)
If validity of the findings of the Appellate Tribunal refusing back benefits to the petitioner is adjudged in the light of the afore-referred decisions of the Apex Court of the country, there leaves no ambiguity that the same being violative of the well-entrenched principles enunciated by the august Supreme Court are not sustainable.
14. It is interesting to note that on the one hand the PLAT jotted down that the petitioner had been serving the respondent-Mill since the year 1997 but on the other held him disentitled for back benefits mere on account of single incident regarding his termination in the year 2002 without considering that after setting aside of said termination by the Labour Court the same could not be referred or relied upon in any future proceedings. It was incumbent upon PLAT to determine as to whether the termination of the petitioner from service was justified or not irrespective of the fact that as to whether any penalty was awarded to him in the past or its ultimate fate but without considering the material available on record PLAT proceeded to reverse the findings of the Labour Court granting back benefits to the petitioner, thus the same cannot be allowed to remain in field.
15. Considering from another angle, admittedly, the termination order passed against the petitioner in the year 2002 was set aside by the Labour Court, vide order, dated 14.05.2003 but the same was implemented by the respondent-Mill on 02.06.2009, which fact speaks loud about the fact that even in the past the respondent-Mill had been trying to hoodwink the implementation of decisions of Courts rendered in favour of the petitioner. Though learned counsel for the respondent-Mill while portraying the conduct of respondent-Mill as compliant to the Court orders, ferociously argued that with a view to facilitate joining of the petitioner, he was allowed to join at Abdullah Sugar Mills, Depalpur despite the fact he was not employed there but failed to convince this Court about justification given by the Admn. Manager while declining joining of the petitioner, vide order, dated 30.08.2014. Likewise, learned counsel representing the respondent-Mill has no answer to the question that on the one hand the respondent-Mill took the plea that the petitioner was allowed to join Abdullah Sugar Mills, Depalpur in the light of order, dated 13.06.2019 passed by the Labour Appellate Tribunal but on the other did not permit him to join his duty there. It is very ironical that the petitioner was made a rolling stone inasmuch as the implementation of the decision of the Labour Court was firstly declined on the ground that the appeal was pending before PLAT, secondly he was told that Abdullah Sugar Mills was sold out and re-named as Al- Arabia Sugar Mills and thirdly though he was asked to join Abdullah Sugar Mills, Depalpur but when he filed application, he was not facilitated by the management of the said mill. All these facts lead to indubitable conclusion that the management of the respondent-Mill, instead of liquidating its liabilities towards implementation of the judgment of the Labour Court in the light of the Ordinance, 1968 was all out to keep the petitioner away from joining the duty. The Apex Court of the country in the case of Inspector-General of Police, Punjab (supra) while dealing with the question relating to entitlement of a reinstated employee to back benefits for the period consumed in litigation inter-alia concluded as under:- "For the foregoing reasons, we are of the opinion that there is no conflict in the judgments, which has been cited in the subsequent leave granting order dated 13-3-2012, the principles of both the cases are common, as it has been observed hereinabove. In the cases of such like nature, the Department should have decided the cases, depending upon the facts of each case and as far as the instant case is concerned, the respondent is entitled to get back benefits during the period when he had instituted a revision petition, which was kept pending till the decision of the criminal as well as civil cases, which have no relevance as unless he had been found guilty by the Court, he was not debarred from performing his duty. Therefore, from the date of filing of the revision petition and till its decision he is entitled for back benefits as far as the question of giving him back benefits during the period when he remained absent, it is for the Department to conduct an inquiry and independently decide whether he is entitled for the same or not."
16. Now taking up the connected petition, I have noted that the Labour Court vide order, dated 03.04.2018, declined to implement its own judgment on the ground that the appeal against its decision was pending before PLAT. Likewise, the appeal filed by the petitioner (Labour Appeal No.SA-187/2018) was disposed of by PLAT vide judgment, dated 13.06.2019, directing the respondent-Mill to reinstate the petitioner without back benefits from 13.06.2019, just on the ground that Writ Petition against the decisions of the labour fora was pending before this Court. It is very strange to note that PLAT refused to implement the judgment of the Labour Court in its letter and spirit merely due to pendency of proceedings before this Court despite the fact that in number of cases the Apex Court of the country has held that mere pendency of proceedings before a higher forum per se cannot be used as an impediment in the way of implementation of an order passed by the lower forum until and unless operation of the said order has been suspended by the higher forum. Reliance in this regard can be placed on Dost Muhammad v. Babar Munir (1991 SCMR 415) and Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (Pakistan), Lahore (PLD 1964 SC 829). Insofar as the case in hand is concerned, the counter petition was filed by Haseeb Waqas Group of Companies (the owner of the respondent-Mill) challenging the vires of the judgments passed by the Labour Court as well as the PLAT but no injunctive order was issued by this Court, thus, there was no justification for the respondent-Mill to avoid implementation of the decision of the Labour Court. Similarly, the Labour Court as well as PLAT could not refuse execution of the judgment of the Labour Court merely on account of pendency of Writ Petition before this Court.
16. Now taking up counter petition, I have noted that the respondent-Mill challenged the decisions of the labour fora on the ground that when PLAT found the petitioner disentitled for back benefits as to how the order regarding his reinstatement could be allowed to sustain. In this regard, I am of the view that when the findings of PLAT refusing back benefits to the petitioner, by reversing the finding of the Labour Court on the said point, have not been found tenable, the ground pressed into service by the respondent-Mill in this petition also does not carry any weight. Further, despite addressing the Court at considerable length learned counsel for the respondent-Mill has not been able to satisfy this Court as to the reasons for by-passing the procedure prescribed under Standing Order 15 ibid, hence the findings of the lower forums relating to instatement of the petitioner in service are unexceptionable.
17. It is admitted position that during pendency of these matters, the petitioner has already crossed the age of superannuation, hence, at this stage his reinstatement cannot be ordered rather he is entitled for pensionary emoluments.
18. It is amazing that throughout the proceedings, the stance of the respondent-Mill has been that the petitioner was treated by the management of the respondent-Mill fairly. The stance of the respondent-Mill stands repudiated from the fact that though order regarding termination of the petitioner from service in the year 2002 was set aside by the Labour Court on 14.05.2003 but the same was implemented by the respondent-Mill on 02.06.2009. Further, soon after his reinstatement in service in compliance with the afore-referred order of the Labour Court, the petitioner was again terminated from service on 19.10.2009 through omnibus order and without complying with the Standing Order 15 ibid. The said fact smacks foul play on the part of the respondent-Mill. This Court has least sympathy with the petitioner and in case he was involved in any subservient activities, the respondent-Mill could proceed against him under the Ordinance 1968 but non-adherence to the provisions cannot be condoned as it is mandate of the Constitution of Islamic Republic of Pakistan, 1973, that everybody should be dealt with in accordance with law and any violation on the part of the delinquent cannot be let unnoticed.
19. Undeniably, the findings of the fora below qua reinstatement of the petitioner, being concurrent in nature, cannot be interfered with by this Court in exercise of its constitutional jurisdiction until and unless it is established that the same are found to be perverse or are result of some misreading or non-reading of material available on record which is not the position in the case in hand. Reference in this regard can be made to the case of Malik Muhammad Hussain v. District Returning Officer (2008 SCMR 488).
20. Now coming to the case-law referred by the learned counsel for the respondent-Mill, I am of the view that the same is inapplicable to the peculiar facts and circumstances of the present case inasmuch as in the case of Secretary to Government of the Punjab, School Education Department, Lahore and others (supra) the act of the departmental authorities to dispense with the regular inquiry was endorsed by the Hon'ble Supreme Court for the reason that employee in the said case admitted that he remained absent from duty for 16 years which is not the position in the case in hand as the entire case of the petitioner throughout the proceedings has been that he never remained absent from duty which fact could not be dislodged by the respondent-Mill.
Moreover, the criteria provided for departmental proceedings under the PEEDA Act 2006 and Ordinance 1968 have no over-lapping effect, thus, the matters decided under said laws cannot be cross-referred. As far as case of National Bank of Pakistan and another (supra) is concerned, suffice it to observe that even in the said case absence on the part of the employee from 31.10.2014 to 07.04.2016 excluding one day (02.02.2016) was admitted but in the instant matter the petitioner has been agitating that he never remained absent from duty. Now taking up case of Allied Bank Limited (supra), I am of the humble opinion that in the said case termination of the employee was simpliciter whereas in the case in hand the petitioner was terminated on account of alleged absence from duty which falls within the definition of misconduct in terms of Standing Order 15 ibid, hence the referred case has no relevance with the case in hand rather the petitioner could be proceeded against while complying with the provisions of Standing Order 15 ibid. As far as case of Muhammad Anayet Gondal (supra) is concerned suffice it to observe that that said case stands distinguished firstly for the reason that in the referred case no order regarding back-benefits was passed by the Service Tribunal and secondly, the reinstatement of the judicial officer in service was directed on technical grounds which is not the position in the case in hand. Insofar as case of Secretary, Industries, Government of Khyber Pakhtunkhwa, Peshawar and another (supra) is concerned, it is observed that in the said case the successor department was held liable for implementation of a Court's order mainly on the ground that it received huge amount from the Privatization Commission of Pakistan as a result of transfer of the assets of the Corporation whereas in the case in hand the owners of the respondent-Mill (petitioner in the counter petition) received the consideration amount as a result of sale of respondent-Mill. Moreover, if the liability to liquidate the financial benefits of the petitioner was on the shoulders of Al-Arabia Sugar Mills as to why it has not been arrayed as party in the counter petition. Further, in the case in hand the Labour Court, through order, dated 15.01.2018, has held that the respondent-Mill is bound to implement its judgment whereby petitioner was directed to be reinstated in service with full back benefits and findings of the Labour Court on the said point having not been reversed by any higher forum, attained finality. Now dealing with the case of Messrs Allied Precision Engineering Products (Pvt.)
Ltd. through Notified Factory Manager (supra) I have observed that in the said case the period of back benefits of reinstated employees was curtailed to a limited period for the reason that respondents in the said case failed to allege and prove that they were not gainfully employed elsewhere during the period they remained out of service whereas in the instant matter the petitioner submitted affidavit to the effect that he was not gainfully employed elsewhere with effect from termination of service which fact could not be repelled by the respondent-Mill during the course of evidence.
21. For what has been discussed above, I have no hesitation to hold that the respondent-Mill passed penultimate order against the petitioner in clear violation of Standing Order 15, ibid and no persuasive reasons have been given by PLAT while declining back benefits to the petitioner.
Consequently, while accepting this petition as well as the connected petition the counter petition is dismissed. As a result, judgment, dated 05.05.2016, rendered by the PLAT is set aside and as a consequence judgment, dated 09.08.2014, passed by the Labour Court shall hold the field. Likewise, orders, dated 03.04.2019 and 13.06.2019, passed by the Labour Court and PLAT respectively are set aside. Resultantly, the application filed by the petitioner seeking implementation of judgment, dated 09.08.2014, delivered by Labour Court shall be deemed to be pending and the Labour Court shall ensure implementation of its decision within two months positively.