DECISION The circumstances in which these appeals have been placed before me are as follows:--
2. Khadirn Hussain was employed with the National Bank of Pakistan as, a Cashier. On 19-1-1981 while posted at Sinjhoro Branch, he was charge --sheeted for non-deposit of Rs.300 found in excess on 8-5-1980. After some sort of a domestic enquiry Khadim Hussain came to be dismissed frog service on 23-11-1983.
3. Suffice it to say that Khadim Hussain had filed a petition before the Labour Court, which was allowed and he was reinstated in service with full back benefits. The National Bank of Pakistan had preferred an appeal and the impugned order was modified to the extent that the back benefits were reduced by fifty per cent.
4. Khadim Hussain had preferred a Constitution Petition No. D-58 of 1988. So, had the Bank, being Constitution Petition No. D-194 of 1987. Both the Constitution Petitions were heard on 23-11-1991. In the latter petition the matter was remanded to the Labour Court for the determination of the back benefits only, "after affording opportunity to the parties to lead evidence in respect of the point at issue only and after hearing the parties". The decision in Constitution Petition at the instance of National Bank of Pakistan came to be announced on 15-1-1992 and the matter was remanded to the Tribunal with the following observation:-- "that if it (Tribunal) still comes to the conclusion that only fifty per cent of the back benefits should be given it should give reasons for such conclusion."
5. As was to be expected Khadim Hussain (hereinafter called as the `respondent') entered the witness-box once again before the Labour Court and added that as a result of the order of dismissal he had had remained jobless ever since.
6. The Labour Court, for the reasons given by it, allowed full back benefits which is the subject- matter of appeal before this Tribunal. There is also the matter before me by way of remand in Constitution Petition No. 58 of 1988, which was at the instance of the Bank (who would be referred hereinafter as the `appellants'). I propose to dispose of them by this composite decision.
7. The question with regard to the award of back benefits was examined exhaustively in Muhammad Bashir v. Punjab Labour Appellate Tribunal and others 1991 SCM R 2087 in which notice of some of the cases referred to in the D.B. Judgment was also taken. The observation a$ summed up reads as follows:-- "We might add that what will be `just and proper' under clause (5) of section 25-A of the Industrial Relations Ordinance will depend on the question whether the order of removal or dismissal is found to be without jurisdiction, unwarranted and uncalled for or whether it has been actuated partly or wholly on account of the conduct attributable to him. In the former case he would be entitled to avail of the back benefits while in the latter case, his claim in that regard may not `just and proper':'
However, two principles are now established under the judgments of this Court.
(a) that back benefits do not automatically follow the order of re--instatement where the order of dismissal or removal has been set aside; and
(b) as regards the matter of onus of proof ...-------------------------------------------------- -------------------------
8. Re-instatement having come in the main, as a result of delayed charge-sheet and defective domestic enquiry the facts, therefore, culminating in the order of dismissal have to be looked in....The charge was as follows:-- "Mr. Khadim Hussain, Cashier, NBP Sinjohoro Branch is hereby called upon to explain as to why disciplinary action should not be taken against him under the Efficiency and Discipline Rules, 1975, in force for the following acts of omissions and commissions committed by him in the branch as Cashier:-- (1)On 8-5-1980, Mr. Shabbit Ahmed, Bank valued client, handed over a sum of Rs.300 to him for credit of his Account No. 735.
(2)He did not credit the amount in the account of Mr. Shabbir Ahmed and misappropriated the same with mala fide intention.
(3)On 21-2-1981, Mr. Shabbir Ahmed lodged a complaint that he has given a sum of Rs.300 to Mr. Khadim Hussain for depositing the CA. No. 735 but the amount in question was not deposited till seven months.
(4)After the lodgement of the complaint with Manager, Mr. Khadim Hussain, Cashier confined the contents of complaint and deposited a sum of Rs.300 in Sundry Deposit A/C on 22-2-1991 showing that the amount was found in excess on the counter on 8-5-'1980 for which he has not reported to Branch Sr. Head Cashier/Manager on that day.
He should submit his explanation within a period of three days receipt hereof without fail.
(Sd.)
(WAHID BUX GHURYANI), ZONAL HEAD.---
9. In view of the unsatisfactory nature of the enquiry proceedings I will not advert to what the respondent had to say therein. But he had the following to say in his cross-examination before the Labour Court in his petition under section 25-A of the I.R.O.
"I had given pay-in-slip and Rs.300 in cash found in excess with on 8-5-1980 to the Senior Head Cashier for deposit. I continued to attend my duty even after 8-5-1980.1 did not check myself if that Rs.300 were deposited or not as I placed confidence on my superior officers. My enmity with Branch Manager and Senior Head Cashier started after the question of this amount of Rs.300 this enmity started about 7/8 months of the said question of excess. I did not check and verify the deposit of Rs.300 even after this enmity. It is incorrect that I prepared a fresh pay-in-slip by my own hand on 21-2-1981. It is incorrect I after preparing its slip on 21-2-1981, myself deposited Rs.300.
I see one pay-in-slip dated 22-2-1981 and say it bears my signature and I produce it as Exh. R/3. It, however, was filled in by someone else. It is correct that through the pay-in-slip excess amount of Rs.300 found on 8-5-1980, was deposited. Voluntarily states that I had myself not paid the amount for deposit. I do not remember if I had stated so in my explanation or gr. Notice or in petition filed hereunder. I had definitely stated so before Enquiry Officer."
10. Thus, on the showing of the appellant himself it cannot be said that the proceedings taken against him were unwarranted or uncalled for. Instead it had been actuated partly or wholly on account of the conduct attributable to him.
11. In my humble view the respondent Khadim Hussain would not be entitled to any back benefits at all.
12. The appeal from the order of the Labour Court is allowed and the appeal on remand is partly allowed. Orders accordingly.