DECISION ' These are two cross-appeals filed by the employers and the employees in respect of Employees'
Old-Age Benefits Institution against the order of the 5th Sindh Labour Court, Karachi allowing petition of the employee for reinstatement in service with back benefits.
2. The facts in brief are that the employee Naseer Ahmed was serving as Senior Assistant with the respondent Employees' Old-Age Benefits Institution. This employee was issued charge-sheet alleging misappropriation or embezzlement of funds belonging to the Institution and negligent and inefficient conduct in the discharge of his duties. After holding an enquiry under the Statutory Rules of the Institution the employee was ordered to be dismissed from service. Against this dismissal the employee filed grievance petition under section 25-A of the I.R.O. In the Labour Court. The Court held that it had legal and territorial jurisdiction to entertain the grievance petition under section 25-A of the I.R.0 but the charges according to the charge-sheet had not been proved and the dismissal of the employee was, therefore, not warranted by facts and law. Regarding the back benefits Labour Court held that neither in the grievance petition nor in the affidavit it had been alleged that the employee was jobless from the date of termination and was not gainfully employed. The back benefits were, therefore, refused.
3. Thus, the Employees' Old-Age Benefits Institution has appealed against the reinstatement of the employee by the Labour Court while the employee in his cross-appeal has challenged the order refusing payment of the back benefits.
4. At the very outset Mr. Muhammad Humayun for the Institution has argued that the Labour Court has no jurisdiction to entertain a petition under section 25-A of the I.R.O. Because the institution is not a commercial establishment as defined in the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. That section 25-A of the I.R.O. Applies only when the right of the workman is guaranteed or secured under any law, award or settlement. By law it is contemplated that the worker falls under the definition given in the Industrial and Commercial Employment (Standing Orders) Ordinance. That it, therefore, requires that the institution should be a commercial establishment within the meaning of section 2 of the Standing Orders Ordinance. But this being an institution merely for collection of contribution from the employers and payment to the retired employees of the establishment without any profit the Old-Age Benefits Institution cannot be considered to be a commercial establishment and it is not included in the establishment enumerated in the definition under Standing Order 2(b) of the Standing Orders Ordinance. It is neither a Bank nor a commercial undertaking.
5. It has on the other hand been pointed out by Mr. Nishat Warsi for the employee that under section 17(3)(e) of the Employees' Old-Age Benefits Act the Institution shall derive its revenues from the income from investment of monies of the institution and under section 18 may invest any monies which are not immediately required for its expenses. Earning of the interest or profits on account of investment, therefore, makes it a commercial establishment within the meaning of Order 2(b) of the Standing Orders Ordinance. It becomes a commercial agency or undertaking. On this point he has referred to the unreported judgment of the Supreme Court in Civil Appeals Nos.256 and 257 of 1991 in the case of Employees Old-Age Benefits Institution v. Punjab Labour Appellate Tribunal and Noor Muhammad Joya etc. In that judgment Abdul Qadeer Choudhry, J.
Observed that the investment of monies by the institution under section 18 of the Old-Age Benefits Act and realisation of interest under section 17 renders the institution as a body corporate receiving income from various sources including investment. The Old-Age Benefits Institution, therefore, becomes a Commercial Institution to which the I.R.O. Becomes applicable.
6. In view of this finding of the Supreme Court the objection as to jurisdiction raised by Mr. Muhammad Humayun cannot be sustained.
7. It has then been argued by Mr. Nishat Warsi that the charges against the employee have not been proved and even the amount said to have been misappropriated, has not been specifically mentioned nor have the Institution led any evidence regarding negligence and inefficiency. That the charge-sheet is also served beyond 30 days of the alleged occurrence. It is true that the allegation of misappropriation is vague and the amount misappropriated and the date of misappropriation has not been mentioned in the allegations though the procedure applicable would be of the Efficiency and Disciplines Rules in preference to the Standing Orders. These being the Statutory Rules have preference of applicability in case of employees of the Government Institution as against the Rules provided under Order 15(4) of the Standing Orders Ordinance.
8. Regarding compensation of the back benefits, it is the legal requirement that the burden to prove that the employee was not gainfully employed during the period he was out of job would be on the employee and in this case it has not even been alleged in the grievance petition nor in any affidavit during the proceedings that Mr. Naseer Ahmed remained without any employment during the period in question.
9. In the result the order of the learned Labour Court is maintained and the appeal and the cross- appeal are both dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.