DECISION This appeal calls in question the order of the Labour Court whereby the petition for reinstatement under section 25-A of the IRO was allowed with full back benefits. The circumstances forming the background of this case are as follows:-- The petitioner was appointed as an electrician/helper in the respondent mill on 13-11-1975.
2. On or about 13-12-1977 the petitioner had made an application for grant of leave on medical ground for an unspecified period. He had stated therein that he would produce the medical certificate when reporting for duty. The application however was not recommended and the respondent's case as to be found in the written statement was that as the leave was not allowed, instructions had been issued to the Pay Roll Department to stop his salary. The petitioner had reported for duty on or about 21-2-1978 for only two days viz. 21-2-1978 and 23-2-1978 and thereafter had made himself scarced. There was no news of him for well nigh 14 years till he made an application on 22-5-1991 for being allowed to resume his duty. The application was repeated on 28-5-1991 and as the request could not be considered the petitioner had sent a grievance notice dated 12-8-1991 and later filed the petition.
3. The petition came to be resisted inter alia on the ground that it was barred by time.
4. The petitioner was his own witness and Syed Muzammal Hussain, Junior Officer, Administration appeared on behalf of the respondent.
5. The Labour Court found that the petitioner had not been able to show that he had attended to his duties from 24-2-1978 onwards but "as there was no written order terminating/dismissing the services of the applicant had been passed", it was a fit case for reinstatement. It went on to say that "he is not entitled to the back benefits apart from those to which he would be entitled from the date of his resuming duty i.e. 22-5-1991 till reinstatement, culminating in this appeal.
6. In his affidavit in evidence the petitioner had stated that he was attending to his duties ever since but on one pretext or another he was not allowed to work. He has not a word to say beyond this in regard to the 14 years wherein his pay had remained stopped and his name had been removed from the Pay Roll and the attendance record.
7. It has been stated by Syed Muzammil Hussain that in view of the actions taken against the respondent it was not necessary to draw any proceedings against him for this long drawn absence, or pass any formal order as he put it terminating his services. The appellants have tried to show that if the respondent had remained working for all these years his pay would have been much higher than what he alleges to have been receiving and that too on pay slip. All this need not tarry us.
8. According to the Standing Orders Ordinance if any worker remains unauthorisedly absent for 10 days he is guilty of misconduct and after a due enquiry he is liable to be dismissed from service. In this case the respondent is alleged to have been on the run for well nigh 14 years and still the appellant did not choose to order an enquiry dismiss him from service. It is a pity that for all these years they were not advised to take up the only action that was open to them. It was open to them even after they had been served with the grievance notice to move in the matter. The plea of desertion or abandonment of job is neither here nor there.
9. Mr. Zahid Hamid however during the address informed me that after the discomfiture suffered 'by them at the Labour Court the appellants had stirred into action and after holding an enquiry the respondent was dismissed from service. That being so the question of reinstatement does not arise. That will be subject to the, decision in the petition which had been filed challenging the order of dismissal.
10. As for the question of back benefits I am afraid the order of the learned Presiding Officer is unsustainable. The record clearly shows that the respondent was somewhere else for years together and without any leave being sanctioned. His name was removed from the Muster Roll and the Pay Roll also. He had however the effrontery to present himself before the authorities and ask for resumption of duty in May 1991. It was nothing short of audacious, if not worse. The prayer in the petition also was that his continuity in service also be maintained.
11. As the conduct of the respondent could never be said to be blameless and as his success in the proceedings was only on technical grounds, looking to the principles laid down in Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others 1991 SCM R 2087. I will disallow the same. As a result this part of the order of the Labour Court is set aside and the appeal 'will be partly allowed.