' Mohammad Ishaque Khan appellant a skilled, C & W Builders of Locoshop, Moghalpura filed an application against the Divisional Superintendent, Pakistan Railways Workshop Moghalpura under section 25-A of the I. R.
0. Before Junior Court No, I, Lahore seeking his re-instatement with back benefits.
2. In the application he contended that the order of his removal from service, dated 23rd April 1971 was illegal and, void and un-warranted for the reasons stated in the application.
3. His application was resisted vehemently by the Divisional Superintendent, Workshop, Moghalpura. The parties laid oral as well as documentary evidence before the learned Junior Labour Court No, 1, Lahore. The said learned lower Court after considering the parties evidence and after hearing them, by its detailed order dated 22nd April 19/5 accepted the application of Mohammad. Ishaque appellant and directed his re-instatement with immediate effect. It was however ordered that the period of absence of the appellent from duty would be treated as extraordinary leave but his seniority in the cadre would remain intact. The appellant has impugned the aforesaid order of the learned Junior Labour Court through the present appeal in so far as he has not been allowed back benefits and the period of absence has been ordered to be treated as extraordinary leave.
4. I have carefully gone through the records of the case and the parties have also been heard at length. In the impugned order the learned lower Court has concluded that the findings of the Enquiry Committee culminating into the order of termination of the appellant were based on mere surmises and were not supported by evidence and were thus perverse. It has further been observed that the order of discharge passed on such findings was, therefore bad in law and not sustainable. The learned lower Court therefore set aside the order of discharge and re instated the appellant from 14th May 19 71 1. e. The date on which he was terminated. It would transpire from the above, that the order of termination of the appellant has been set aside on merits by the learned lower Court as the same was held to be bad in law and not sustainable. In this manner the termination of the appellant has not been set aside merely on technical grounds. No further enquiry has also been ordered in this case. In Divisional Superintendent P. W. R., Karachi v. Bashir Ahmad it has been held that when a Railway employee was wrongfully dismissed from service and his dismissal was declared as invalid he was entitled to the arrears of salary for the period be remained out of employment due to wrongfully dismissal. Similar view has been taken in Moham nad Roz v. Federation of Islamic Republic of Pakistan.
' On behalf of the respondent reliance has been placed on Ali Iman v. M/s. Pakistan Cement Industries Ltd , Karachi in this case Sind Labour Appellate Tribunal held that in case of reinstatement it was question of discretion as to whether or not a workman be granted back benefits. In this case on account of change of Management and the case having remained pending for 6 years it was considered proper that Management be debarred from holding fresh enquiry and the workman be deprived from getting back benefits although he was awarded promotion in the grade according to his original seniority and length of service. The present case is distinguishable on merits. The facts of this case do not justify the exercise of discretion by the Junior Labour Court against the workmen by the withholding his back benefits when his termination has been held to be illegal and unjust. Needless to add that the discretion in judicial and quasi-judicial matters cannot be exercised arbitrarily and is to be exercised in accordance with the principles of equity, justice and good conscience.
8. In the light of what has been said above, I accept the appeal and modify the impugned order to the extent that the appellant is ordered to be re-instated with back benefits. PLD 1973 SC 589 PLD 1972 Lab. 756 1975 PLC 211