DECISION ' This appeal is directed against order dated 28-8-1988, passed by the learned Presiding Officer, Sind Labour Court No, VII at Sukkur, whereby he partially allowed grievance application of the appellant and ordered his reinstatement but did not allow him back benefits. In this appeal the appellant has prayed for the modification of the order and for grant of back benefirtis to him.
2. The appellant is admittedly a workman who was employed by the respondent as peon. It was averred by the appellant that he was removed from service on 24-10-1982 without being served with a charge-sheet and without proper enquiry. After observing the grievance procedure he filed grievance application before the learned Labour Court at Sukkur on 3-1-1983 which was dismissed by the learned Labour Court on 9-8-1983 on the ground of want of jurisdiction. The appellant filed appeal bearing No, SUK-574 of 1983 in this Tribunal vide order dated 30-3-1987, the impugned order of the termination of service of the appellant was set aside by this Tribunal and he was ordered to be reinstated in service with full back benefits. The respondents filed Constitution Petition No, D-147 of 1987 in the High Court which was allowed to the extent that the decision by this Tribunal on merits was set aside and the case was remanded to the Labour Court for giving finding on merits of the case. The respondent resisted the application on the ground that the appellant was guilty of misconduct and after due service of charge-sheet and proper domestic enquiry his services were terminated.
3. The learned trial Court after recording the evidence of the parties and hearing the parties came to the conclusion that no charge-sheet was served upon the appellant and no opportunity was given to him to appear before the Enquiry Officer and, therefore, held the order of termination to be illegal and against the mandatory provision of law. The trial Court, therefore, ordered reinstatement of the appellant but did not feel inclined to give him back benefits. The respondent did not file any appeal against the finding of the learned trial Court that no charge-sheet was proved to have been served upon appellant and he was not given proper opportunity to defend himself. As such only question before this Tribunal in this appeal is whether under the circumstances the appellant is entitled to back benefits.
4. The appellant is not himself present. Mr. Sadiq Khan, learned counsel for the respondent has very ably assisted the Tribunal by putting the case of both sides before the Tribunal. He contended, that the decision of the trial Court that no charge-sheet was served is against the evidence on record.
However, as pointed out no appeal has been filed against this part of the order of the learned Labour Court by the respondent. Therefore this question cannot be reopened. Furthermore, no doubt, a question has been put in the cross-examination of the appellant, but he denied service of the charge-sheet or his signatures on various letters. These signatures and service of the charge- sheet has not been proved by the respondents in their evidence. As such the opinion of the learned Labour Court appears to be correct. I will not disturb it, especially in view of the fact, that no appeal has been filed against that part of the order.
5. It is further contended by the learned counsel for the respondent that the grant of back benefits was within discretion of the learned Labour Court, who has chosen to exercise discretion in favour of the respondent against the appellant. It is settled law that the discretion vesting in the Judicial Officer is to be exercised judiciously and not capriciously. The learned Presiding Officer of the Labour Court has not given any cogent reasons as to why he did not feel inclined to grant back benefits when he had held the order of termination to be illegal. Under Standing Order 15(4) no order of termination of workman could be passed unless he is informed in writing of alleged misconduct within one month of the date of such misconduct. It has been held by the learned trial Court that no charge-sheet was served upon the appellant and as such he was not informed of the alleged misconduct within the time prescribed under the above clause of Standing Order No,
15. The order of termination of service of the appellant as such would be barred by Standing Order 15(4) and would be ab initio void and illegal. As such the appellant would be deemed to have been continuously in service and, therefore, entitled to full hack benefits.
6. In view of the above discussion I allow this appeal and direct that the appellant be paid full back benefits within three months of this decision.