1. JUDGMENTRAJA AFRAS1AB KHAN J.--The petitioner Muhammad Ramzan has moved this Constitutional petition praying therein that the impugned order dated 22.12.1985 passed by respondent No.3 and the order dated 2.3.1986 passed by respondent No.2 may be declared without lawful authority and of no legal consequence to the extent to which the back benefits have been disallowed to him.2. In brief, the case is that the petitioner was employed as Utility Operator with respondent No.1 Rafhan Maize Products Company Ltd. Rakh Canal, East Road, Faisalabad in October 1964. The petitioner performed his duties honestly and diligently to the entire satisfaction of his employer. The petitioner was dismissed from service on 25.6.1984 by respondent No.1 on the ground that during the night between 23rd/24th of May, 1984, while on duty as Utility Operator, he had wasted sufficient quantity of edible oil on account of his negligent conduct. The learned Labour Court No.4, Faisalabad, after recording the evidence and hearing the parties, set aside the orde of dismissal of the petitioner and reinstated him in service. However, 50 per cent of back benefits were allowed to the petitioner vide his judgment dated 22.12.1985. Both the petitioner as well as respondent No.1 went in separate appeals before the Punjab Labour Appellate Tribunal against the order dated 22.12.1985 of the Punjab Labour Court No.4, Faisalabad. Both the appeals were heard and disposal of together vide the appellate judgment dated 2.3.1986. The reinstatement of the petitioner was upheld, whereas the back benefits were disallowed to him.3.
2. Learned counsel for the petitioner contended that since the petitioner has been reinstated to his service by setting aside the order of dismissal passed by his employer,' as such, he was entitled under law to receive all the back benefits. Learned counsel urged that the petitioner was not at all guilty of misconduct within the meaning of the provisions contained in section 15 of the West Pakistan Industrial and Commercial Employment (Standing Orders), Ordinance, 1968. Learned counsel stressed that it has elaborately been mentioned in the above said section as to what actions and omissions will constitute misconduct and what action shall be called for the negligence on the part of the delinquent workman. Learned counsel maintained that at the most, his case will fall under clause (d), sub-clause (ii) of sub-section (1) of section 15 of the above said Ordinance. Learned counsel placed heavy reliance,Qn sub-section (1) whereunder a workman guilty of careless or wastefull working may be reprimanded or fined in the manner prescribed under the Payment of Wages Act, 1936, upto three paisa in the rupee of the wages payable to him in a month. In order to appreciate the provisions of law, the relevant portion of section 15 is reproduced below:-"15. (1) A workman may be reprimanded or fined in the manner prescribed under the Payment of Wages Act, 1936 (IV of 1936) upto three paisa in the rupee of the wages payable to him in a month, for any of the following acts or omissions, namely,-(i) in case where the Payment of Wages Act 1936 (IV of 1936) is applicable, the list of acts and omissions for which fine may be levied shall be same as approved by the Chief Inspector of Factories or any other officer concerned;(ii) in other cases, the following shall be the list of acts and omissions;(a) disregard or disobedience of rules or orders;(b) improper behaviour, such as drunkenness;(c) making false or misleading statements(d) inefficient, dilatory, careless or wasteful working;(e) malingering."(3) . (4)
(5) Learned counsel for the respondent submitted that it is established that the petitioner was guilty of gross negligence inasmuch as considerable loss occurred to the employer. Learned counsel submitted that the writ is not at all competent inasmuch as the competent forum may or may not allow back benefits to the petitioner. In this particular case, the learned counsel stated that the learned Punjab Labour Appellate Tribunal after considering the entire case, came to the conclusion that the petitioner is not at all entitled to the grant of back benefits. Learned counsel relied upon the observations of the learned appellate forum saying that the petitioner worked negligently and due to his negligence loss was caused to the respondent employer.4. I have heard learned counsel for the parties and have carefully perused the whole record. The admitted position in the case is that the respondent employer did not challenge the appellate judgment of the Punjab Labour Appellate Tribunal whereby the petitioner's reinstatement to his service was affirmed. Now the sole question for determination is whether the learned Labour Appellate Tribunal was justified in law in disallowing all the back benefits to the petitioner or not. The law on the subject is clear and the same is available in section 15 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Admittedly this is not a case of misconduct within the meaning of the above said law. The Courts below have come to the conclusion that the petitioners was guilty of negligence. A question arises as to what is the punishment prescribed by the law for negligence. Sub-section (1) of section 15 referred to above has enumerated the acts or omissions in which the maximum punishment prescribed in the reprimand or fine. The fine shall be upto three paisa in the rupee of the wages patayable to an employee in a month. The contention of learned counsel for the petitioner is that the case of the petitioner at the most will fall under clause (d), sub-clause (ii) of sub-section (1) of section 15 of the Ordinance. Learned counsel also contended that since the order where the services of the petitioner were terminated has been declared illegal, and as such, withholding of his salary shall also be without lawful authority. Reliance in this behalf has been placed on Niaz Ali v. Punjab Urban Transport Authority Lahore etc. (P.L.D) 1983 Lahore 661). Muhammad Arshad Khan v. J.& P. Coats Pakistan Ltd. Karachi etc. (P.L.D. 1977 Karachi 83) and Muhammad Sharif v. Chairman. Road Transport Corporation etc. (1976 P.L.C. 744). The allegation against the petitioner might be careless or wasteful working for which the punishment is only three paisa in the rupee of the wages payable to the petitioner in a month. There is nothing in Section 15 of the Ordinance under which the petitioner can be deprived of his benefits for his careless working. In my view, a guilty worker could alone be reprimanded and fined to the above mentioned extent when a case of careless or wasteful working is established against him. In this case, as abserved earlier, the case at the most against the petitioner is carelessness on his part and for this default he cannot be deprived of his back benefits. This provision of law has not at all been considered both by the Labour Court and the Punjab Labour Appellate Tribunal. The petitioner was charge-sheeted and in reply thereof, he stated that he is not at all at fault. He deposed in his statement that on the eventful night, he checked the filling tank but its level indicator was not working properly. Thereafter, he checked the report of the previous shift and Oil Refinery Section and has indicated that the tank was empty. He, therefore, operated the machine in order to fill the tank but after some time it started over-flowing.
3. The reason was that the tank was not totally empty, because the reports showing the same as empty were obviously incorrect. He continued saying that he was present on duty when the oil started over-flowing. He immediately switched off the oil. The learned Punjab Labour Court while passing the order reinstating the petitioner with 50 percent back benefits, observed in his order that the petitioner had rendered a long meritorious sen ice to the employer. The learned appellate forum has not looked into the past meritorious record of the petitioner. Even the respondent employer did not say anything against his previous meritorious record. In my considered view, this might be a case of error in judgment in handling the machine a little bit late. Nothing has been brought on record by the employer that he was to stop the pumping of oil in the filling tank by such and such time.5. The upshot of the above discussion is that the learned Labour Appellate Tribunal has failed to consider this aspect of the matter. I, therefore, proceed to hold that the petitioner at the most could be fined or could be reprimanded because of his careless and wasteful working and he cannot under any circumstances be deprived of his back benefits. Resultantly, the petitioner is entitled to all back benefits. The petition, therefore, succeeds and is allowed leaving the parties to bear their, own costs.