DECISION ' These are cross-appeals arising from the order of Second Sindh Labour Court, Karachi, allowing the grievance petition of Muhammad Ghani, Chowkidar, for reinstatement but awarding only 25% back benefits for the period of 2 years out of 5 years.
2. The facts, in brief, are that the respondent was employed as a Chowkidar in the establishment of appellants at S.I.T.E. On 18-1-1990 this Chowkidar was arrested by the Police along with two others for theft of 42 packages of ABC Wool from the adjoining godown of the sister-concern of the appellants. This theft is said to have occurred on 1st day of February, 1990. The police sent up the accused before the Second Additional City Magistrate, Karachi. The Chowkidar was allowed bail on 31-3-1990. On 5th of April the Chowkidar reported for duty in writing but it appears from the facts and circumstances of the case that the appellant-company was reluctant to take this Chowkidar on duty because he had been released on bail and later on discharged on 28th of July, 1991 for non-production of witnesses in the case. The appellants, it is said, did not allow the respondent- Chowkidar to resume duty and he kept coming to the establishment premises but he was being gate-stopped.
3. On 22-4-1990 a charge-sheet was drawn up against him for misconduct for remaining absent from duty without permission from 18-3-1990 to 22-4-1990. The Chowkidar replied on 5-5-1990 that he was not being allowed to enter the premises for performing duties in spite of his repeated requests on 17-5-1990 the respondent-Chowkidar was served with .Notice of enquiry but during this period also he was not allowed to be present at the enquiry. He sent telex, telegrams and applications for being allowed to be present at the enquiry. He was, then, dismissed from service on 20-6-1990 for remaining absent for more than ten days. Obviously the alleged misconduct was an excuse as the Chowkidar was all the time anxious to resume duty after he was released on bail but since he was suspected of theft from the adjoining godown of the sister-concern he could not be reinstated in service having been suspected of commission of theft.
4. The Chowkidar sent his grievance notice by registered post and since it was received by the appellants they afterwards denied that the contents of the envelopes were a grievance notice. The same was sent for the second time. It was also denied that the Chowkidar performed any manual work. The Enquiry Officer and the record of the enquiry proceedings were not produced before the Labour Court and only the enquiry report was submitted before the Labour Court. The Chowkidar was also not served with the second show-cause notice before ordering his dismissal. The second show-cause notice is not considered absolutely necessary if no prejudice is shown to have been caused to the accused for want of such notice but in this case the accused was not being associated with the enquiry and it is alleged that the enquiry proceedings were fake and not genuine. The learned Labour Court, therefore, held that the said Chowkidar was entitled to be reinstated in service on account of a defective domestic enquiry. The respondent-Chowkider was, however, allowed only 25% back benefits up to 25-1-1992 during which period he was said to have been without any job and he depended for support on his brother but it was not shown that for all the 5 years that he remained out of job as Chowkidar, he could not find any other employment and it was also considered unfair to burden the Management with back benefits for such a long period.
He was not, therefore, granted the back benefits for all the 5 years for want of evidence that he was not gainfully employed for such a long time. Back benefits cannot be claimed as of right if the worker is reinstated in the job. They are granted after considering the evidence on merits of the case. Since it has not been proved that the respondent Chowkidar was dependent on his brother for all the 5 years nor is it probable that he would not be able to get work for all this period. He has rightly been allowed compensation only for the first two years in which he remained with his brother.
5. In the result the order of the Labour Court is maintained and the appeal of the management as well as the cross-appeal filed by the Chowkidar is dismissed. Back benefits, if any, may be paid to Chowkidar Muhammad Ghani according to the order of the Labour Court and balance, if any, deposited may be refunded to the Management.