' The two appeals captioned above arise from the decisions, dated 8th October. 1983 recorded by the learned Presiding Officer, Punjab Labour Court No, 9, Multan directing the re-instatement of the respondents in service with back benefits. As common questions of law and facts are involved in both the appeals, they are being disposed of together through this single judgment in which Mian Muhammad Afzal will be described as respondent No, 1 and Shamsher A hmad as respondent No, 2.
2. Respondent No, 2 was Head Cashier while respondent No, 1 was a Cashier. They are alleged to have misappropriated bank's money by collusion with each other and shared the booty between themselves. The details are given in the charge-sheets served upon both the respondents separately. The learned lower Court has found that the enquiry was not properly held, inasmuch as neither opportunity of cross-examination over the prosecution witnesses was afforded to the respondents, nor they were allowed to lead defence evidence. Abdullah, account-bolder, from whose account Rs, 9,500 are alleged to have been withdrawn and misappropriated was requested by the respondents to be examined but the Inquiry Officer did not do so. The affidavit of the said account-holder was produced by the respondents before the Inquiry Officer, wherein he had said that he had himself withdrawn the amount of Rs, 9,500 and that no misappropriation was done by the respondents.
3. Probably on account of the above-mentioned defects in the inquiry, the learned counsel for the appellant has not argued the cases on this point and has raised legal objections. He has argued that the award of the Wage Commission not being the award as defined in the Industrial Relations Ordinance, 1969 could not be made the basis. This is true that the award of the Wage Commission is different to the one defined in the Industrial Relations Ordinance, 1969 but section 38-D provides that the decisions of the Wage Commission after being published will be deemed be the award of the Commission and all the provisions of the Industrial Relations Ordinance, 1969 would apply to it.
This being so, under section 25-A an application on the basis of the violation of the Wage Commission Award can be made.
4. The other point argued is that a dismissed person ceases to be a workman, so the Industrial Relations Ordinance, 1969 is not applicable. The words 'is employed' do not mean that the employee concerned should be in service at the time of bringing an application under section 25- A. g Not only in section 2 (xxviii) of the Industrial Relations Ordinance, 1969 but in other enactments also wherein while defining a worker, workman, employee or servant, present tense has been used.
If a dismissed or terminated person is not a workman, employee or servant, then it would mean that under the law no such person can challenge a wrongful order of his dismissal, also re- instatement. This does not appear to be the intention of the Legislature. The provision that those dismissed or terminated persons are workmen, on account of whose removal from service an industrial dispute has been brought or who have been removed from service on account of an industrial dispute has not been made for the reason that dismissed or terminated persons cease to remain workman but is meant for those who otherwise are not covered by the definition such as supervisors or Managers. In the Civil Servants Acts (Provincial and Central) present tense has been used but in spite of it dismissed and terminated, civil servants can go to the Services Tribunal against the order of their removal from service.
5. The third objection is that since no departmental appeal was brought, petition under section 25- A was not maintainable. No doubt, right of appeal has been given in rule 42 of the National Banks Rules C and also in para. 258 of the 1st Wage Commission Award but it does not mean that the said remedy should necessarily be availed of before going to the Labour Court.
6. So the respondent were rightly directed to be re-instated in service. However, the respondents have been allowed back benefits wrongly. They did not prove that after their dismissal they remained unemployed. So the appeals are partly accepted and modifying the impugned decisions of the learned lower Court, back benefits are disallowed to the respondents.
7. The appellants obtained stay order from the High Court after the learned lower Court had directed the re-instatement of the respondents, so for this reason they could not get duty. Since the appellants are responsible for non-implementation of the order, so from the date of the stay order upto the date, duty is given to them, the respondents are entitled to back benefits.