DECISION ' These are two cross Appeals filed against a common impugned order, dated 5-5-1987, passed by the Sind Court No, IV at Karachi, who had allowed the grievance petition of the workman under section 25-A, I.R.O. 1969, directing his reinstatement in service with the benefits before the period of litigation. Appeal No, KAR-6/87 is filed by the management of Messrs Rice Export Corporation of Pakistan Ltd., against the impugned order of reinstatement of the workman, while, Appeal No, KAR/7/87 has been preferred by the workman, Rab Nawaz against non-payment of full back benefits.
2. Briefly stated the facts of the case were that Rab Nawaz claimed to have been appointed in the management Corporation as a Chowkidar with effect from 8-4-1977 and was performing the duties of manual nature, as already had been held by the High Court of Sind, vide order, dated 8-1- 1986, directing the learned Labour Court to decide the matter on merits. However, Rab Nawaz claimed that he was issued a charge-sheet containing two allegations, one that on 30-4-1978 he was alleged to have been on duty as Chowkidar on the gate and remained absent without permission for hours, secondly he was alleged that on 1-5-1978 he assaulted one Fazal Hussain with stick. The workman claimed that though he had submitted satisfactory reply to these allegations, but, he was dismissed from service and being aggrieved he preferred his grievance petition before the learned Labour Court who had dismissed his petition on a legal ground that he being a Chowkidar was not entitled to maintain his grievance petition and subsequently in a Constitutional petition he was held to be a workman and the case was remanded to the learned Labour Court for decision on nierits. The workman claimed that the learned labour Court, vide its impugned order, dated 5-5-1987 had reinstated him in service with back benefits for a period prior to litigation between the parties.
3. The management Corporation resisted the grievance petition of the workman on merits on the ground that in a fair, lawful and impartial domestic enquiry the workman was found guilty of the misconduct by the Enquiry Officer in which he was rightly dismissed from service, hence, was not entitled to maintain his grievance petition which was liable to be dismissed.
4. Both the parties filed their affidavits-in-evidence and they were duly cross-examined. Thereafter, the learned labour Court has passed the impugned order, hence, the present two cross-appeals.
5. I have heard Mr. Khalid Javed, the learned Advocate for the management Corporation and Mr. Mahmood Mubashir, the learned representative on behalf of the workman and have also carefully perused the record and proceedings of the case as well as the written arguments filed by both the parties. At the very outset, I would observe here that in the present case it is an admitted position on behalf of the management Corporation that the prosecution witness on the allegation against the workman, were not recorded in his presence, the evidence against the workman, produced on behalf of the Corporation was contradictory, hearsay and tutored and that the workman was not afforded full opportunity to cross-examine them as well as the workffian, though requested, not properly given a chance to take assistance from record that the workman was not afforded full opportunity to properly adduce his defence. There is a serious contradiction in the evidence of the corporation itself on the issue of assaulting one Fazal Hussain and the allegation is doubtful and the benefits of doubt must go in favour of the aggrieved. I would, therefore, find the impugned order well-reasoned and needs not to be interfered. However, it was argued on behalf of the management Corporation that if the impugned order regarding the reinstatement of the worker is to be maintained, has been awarded minor punishment of reprimand, therefore, he should not be awarded back benefits. I see no force in these arguments of the management Corporation. The allegation of having remained absent from duty only for two hours, cannot be taken into consideration for awarding harsh punishment of not allowing back benefits to him, particularly, in the circumstances where the evidence brought on record on this particular point is also doubtful.
In view of this factual position and the legal aspect of the present case, I would hold that the workman, Rab Nawaz must be reinstatement in service with full back benefits. There is nothing on record that prior to this incident, the workman was ever proceeded with on any allegation, therefore, it is presumed that he had un-blemished Service Record.
6. For the reason discussed by me above, I see no reason to interfere with the impugned order and would maintain the same, therefore, Appeal No, KAR-II 7/87 filed by the management of Rice Export Corporation of Pakistan Ltd., is dismissed while, Appeal No, KAR 7/87 filed by the workman, Rab Nawaz for the award of full back benefits is allowed. The result of this decision would be that the workman, Rab Nawaz is directed to be reinstated in service with full back benefits forthwith.