AJMAL MIAN, C.J.--This petition is directed against a portion of the impugned order dated 19-12- 1982, passed by the learned Labour Appellate Tribunal disallowing the back benefits to the petitioner while ordering reinstatement for the reasons mentioned in paragraph 13 of the impugned order, which reads as follows:-- "13. The appellant, who is a Cashier in the bank, however, appears to have been negligent in the performance of his duties. He himself has admitted in his explanation referred to above that he wrote the amount of Rs.18,860 on the face of the deposit slip and also the numbers and the denominations of the notes deposited on the bank of the deposit slip without counting the same.
Moreover, he admittedly wrote amount, i.e. Rs.18,680 on the face of the counter-foil of the deposit slip which was neither the actual amount said to have been deposited by Khursheed Hussain nor the amount stated on the bundles of notes deposited by Khurshid Hussain with him. This amount was neither corrected nor scored out by the appellant before delivering the deposit slip to Khurshid Hussain. Perhaps, if he had corrected the said amount or scored it out, he would have saved the bank and perhaps himself, from a lot of embarrassment. In the circumstances, I am of the view that the appellant is not entitled to any back benefits.
2. The brief facts leading to the filing of the above petition are that the petitioner was working as a Cashier in respondent No. 3 Bank. He was charged under charge-sheet dated 27-6-1979 for allegedly misappropriating a sum of Rs.3,000 on 26-6-1979. On the basis of the enquiry held by the domestic tribunal, the petitioner was dismissed from service by a letter dated 21-11-1979. After serving a grievance notice, the petitioner filed an application under section 25-A of the I.R.O. before the V Labour Court at Karachi. The above application was resisted by respondent No. 3 bank. The learned Labour Court after recording evidence and hearing the parties, by its order dated 2-5-1983 dismissed the petitioner's above application on the ground of limitation as well as on merits.
Against the above order, the petitioner filed Appeal No. KAR/284 of 1982 before the learned Sindh Labour Appellate Tribunal, which was allowed by the impugned order dated 19-12-1982, but the back benefits were denied for the reasons, recorded in paragraph 13 of the impugned order reproduced hereinabove. The petitioner, being aggrieved by the above portion of the order, has filed the present petition.
3. In support of the above petition, Mr. Khalid Javed, learned counsel for the petitioner, has vehemently contended that after having held that the petitioner's dismissal from the service by respondent No. 3 was wrongful and after having reinstated the petitioner, the learned Sindh Labour Appellate Tribunal could not have denied the back benefit on the ground of alleged negligence which was not part of the charge which the petitioner had to face in the enquiry.
4. On the other hand, Mr. Hamood M. Siddiqui, learned counsel for respondent No. 3, has contended that the Sindh Labour Appellate Tribunal had full jurisdiction in the matter to decide the case and it was within the discretion and power of the learned Sindh Labour Appellate Tribunal to allow or not to allow the back benefits. It has been further submitted by him that in the instant case the back benefits have not been rightly allowed.
5. Mr. Khalid Javed, learned counsel for the petitioner in support of the above submission has referred to the case of (i) Pakistan through General Manager, P.W.R., Lahore v. Mrs. A.V. Issacs, reported in PLD 1970 SC 415, in which the Hon'ble Supreme Court dismissed the appeal of the Railways against the judgment and decree allowing the arrears of salary from the date of dismissal till the re-instatement on the ground of wrongful dismissal and while dismissing the above appeal, following observations were made:- "The next question that arises is as to what is to happen in cases where a person is dismissed from service but subsequently the dismissal is held to be unlawful. Should a Government servant be entitled to recover his pay for the period he was kept out of service? It seems to me that if the dismissal was wrongful then it was due to no fault of the servant that he was prevented from serving the State. If he is to be treated by virtue of the declaration given by the Court as being still in service, then I see no reason why he should not also be given by way of consequential relief the salary for the period as if he was actually rendering service. This is the basis on which arrears of pay were allowed to Suraj Narain Anand by the Federal Court. If during this period he has accepted other employment or is engaged in other profitable business, then any amount earned by way of salary from such employment or as profits of such business would, of course, have to be set off against the salary due for two reasons. Firstly, because a Government servant cannot without the permission of Government serve any other master or engage in any other business and secondly, because on general principles too, a person cannot be allowed to reap a double advantage."
(ii) Niaz Ali v. Punjab Urban Transport Authority, Lahore and 3 others reported in PLD 1983 Lah. 661.
In the above case, Abdul Shakurul Salam, J., (as his Lordship then was), while dealing with the provision of I.R.O. has held that once it was held that the termination of the service was wrong or unsustainable, it followed as a natural corollary that withholding of the salary or incidental benefits was also wrongful and without lawful authority. The petition was allowed and the back benefits were ordered to be paid, which were denied by the learned Labour Appellate Tribunal.
(iii) Textile Corporation of Pakistan Ltd. v. Sindh Labour Appellate Tribunal and another, reported in 1983 PLC 721, in which a Division Bench of this Court has held that the back benefits could not be denied on the ground that section 36-B(iv) of the Industrial Relations Ordinance was repealed.
6. On the other hand, Mr. Hamood M. Siddiqui, learned counsel for respondent No. 3, has referred to the case of Mehmood Shah v. Dawood Cotton Mills Ltd., and Sindh Labour Appellate Tribunal, reported in 1982 PLC 365, in which the facts were that the petitioner was a permanent employee of the respondent. He was dismissed from the service w.e.f. 6-1-1978, the petitioner's application under section 25-A of the I.R.O., was allowed by the Labour Court. He was reinstated with full back benefits.
The above order was challenged by the respondent in appeal which was allowed by ordering fresh enquiry by appointing another Enquiry Officer and it was also ordered that the question of the back benefits should have been made dependent upon the result of the fresh enquiry. Against the above order, writ petition was filed which was declined by a Division Bench of this Court and it was held in the circumstances of the aforesaid case, no exception could be taken to order of Tribunal making question of back benefits dependent upon result of the fresh enquiry.
However, it was further submitted by Mr. Hamood M. Siddiqui that since the learned Labour Appellate Tribunal was competent to decide the appeal and the factum that in the decision the learned Tribunal has not awarded back benefits would not attract the Constitutional jurisdiction of this Court as the learned Sindh Labour Appellate Tribunal had the power to decide the matter according to the facts of the case. In our view, this has now been settled in the case of Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others reported in PLD 1987 SC 447, that when a Tribunal is invested with the power to decide a matter it is obliged to decide properly in accordance with law and not what it considers just and proper. In the instant case, the learned Sindh Labour Appellate Tribunal after having held that the dismissal of the petitioner from service was not sustainable, the back benefits could not have been denied for the reasons found favour with the learned Sindh Labour Appellate Tribunal reproduced in paragraph 13, as admittedly there was no charge against the petitioner of the negligence in the enquiry which resulted in the dismissal of the petitioner. The denial of back benefits to a workman should be with reference to the factum, whether he had earned during the relevant period or, whether he could earn and not with reference to some other facts which may not be germane to the above issue. In other words, there should be nexus between the ground of denial of the back benefits and the factum of actual earning which can be set off against the wages/salary due, or the factum that the workman could earn, but he failed and neglected to earn. The above Supreme Court case of the Pakistan Railways and the above Lahore case of the learned Judge support the learned counsel for the petitioners' above contention. Mr. Hamood M. Siddiqui was unable to cite any ruling in which the contrary view might have been taken by any Court.
7. We would allow the above petition and declare that non grant of the back benefits by the learned Sindh Labour Appellate Tribunal in the instant case c is without lawful authority and of no legal effect and that the petitioner is entitled to the same. However, there will be no order as to costs.