This judgment shall dispose of Writ Petitions Nos.682/92 and 10714/91 involving identical questions of law and facts, arising out of judgment dated 22-10-1991 passed by Punjab Labour Appellate Tribunal, Lahore, whereby the appeal of the Crescent Textile Mills against the decision dated 16-6- 1991 passed by the Punjab Labour Court No.5, Sargodha Camp at Faisalabad, was partly accepted, in that, the order of reinstatement of Abdul Aziz, petitioner herein, was upheld but grant of back benefits was reduced to 50%.
2. The learned counsel for Crescent Textile Mills has not disputed the re--instatement of the petitioner in terms of the order passed by the Punjab Labour Appellate Tribunal, Lahore. His sole grievance pertains to grant of back benefits to the extent of 50%. The petitioner in his Writ Petition No.682/92, however, claims full back benefits instead of 50%. Punjab Labour Court No.5, Sargodha, while giving decision dated 16-6-1991 in respect of back benefits held:-- "So far back benefits are concerned, the petitioner has deposed in his examination-in-chief that he did not earn any thing since the time of his dismissal except the period he remained on duty in the respondent- Mills in pursuance of order of this Court. There is no rebuttal from the respondent side to this statement. In any case, since the allegations levelled against the petitioner do not amount to misconduct and also the same were not ever proved against the petitioner, therefore, as held in PLD 1983 Lah. 661 and 1976 PLC 744, the petitioner is entitled to full back benefits in addition to his reinstatement in service. The respondents are directed to put the petitioner on duty up to 16-7-1991 and to pay him all the back benefits."
2. The Labour, Appellate Tribunal, Lahore, vide impugned judgment, dealt with the question of back benefits in the following terms:-- "5. However, on account of protracted proceedings and for the reason that the order of the learned lower Court was set aside three times and the case was remanded for re-decision, the respondents should not have been awarded full back benefits. The case lingered on not for the fault of the parties but due to the fact that the learned lower Court did not decide all the points together and its decisions were set aside and the case was remanded three times.
6. As a result of the observations made above, the appeal is partly accepted and maintaining the order of reinstatement and modifying the impugned decision, back benefits are reduced to 50%.
Nemo for the parties."
3. Mr. Sher Nawaz Shah, learned counsel for Crescent Textile Mills has placed reliance on Qadeer Ahmad v. Punjab Labour Appellate-Tribunal (PLD 1990 SC 787), to contend that where a functionary is kept out of office partly or wholly on account of conduct attributed to him, the availing of the back benefits does not follow, either under the law or principle laid down in the case of Pakistan through General Manager, P.W.R., Lahore v. Mrs. A.V. Issacs (PLD 1970 SC 415). Reliance is also placed in the case of Fateh Khan v. Boze Mir (PLD 1991 SC 782), wherein it was held that no party has to suffer on account of an act of the Court.
4. There is no cavil with the proposition that a party cannot be penalized for an act of Court, also refer Abdul Majeed v. Muhammad Afzal Khokhar (1993 SCMR 1686) and Namdar Khan v.
Muhammad Akram Khan and 14 others (1993 SCMR 434). Here a finding of fact has been recorded by the Labour Court that the petitioner was not gainfully employed during his period of dismissal.
The charge of misconduct for which the petitioner was dismissed from service has not been proved on record, therefore, ordinarily he was entitled to back benefits, in that, this is not a case where he was kept out of office partly or wholly on account of conduct attributed to him. This is Also the ratio of law declared by the Supreme Court of Pakistan in the case of Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore, and others (1991 SCMR 2087) and General Manager, National Radio Telecommunication Corporation, Haripur, District Abbotabad v.
Muhammad Aslam and 2 others (1992 SCMR 2169). In the instant case, however, the finalization of the case was considerably delayed due to act of Labour Court, therefore, reduction of back benefits to the extent of 50% is not exceptionable in the facts and circumstances of the present case.
In view of the foregoing discussion, both the writ petitions are hereby dismissed with no order as to costs.