1. ' Muhammad Ashraf workman of Government Transport Service, Multan, filed a petition under Standing Order 18-B of the West Pakistan Industrial and Commercial Employment Standing Orders Ordinance, 1968, hereinafter mentioned as the Standing Orders Ordinance for the recovery of back benefits of his service from 5th June 1968 to 2nd August 1971 i. e., from the date of his dismissal to the date of his re-employment. The petitioner formerly was General Secretary of the Road Transport Employees' Union Multan and at present is the General Secretary of the Roard Transport Corporation employees' Union. It is maintained by him in the petition that in his former capacity he raised Industrial Disputes in various Courts and success in some of them created resentment against him in the respondent Managment i. e., Punjab Road Transport Corporation, hereinafter mentioned as the respondent, whereupon he was persuaded to resign from the Secretary ship of the Union. As he did not yield to such demand, he was dismissed from service on 5-6-1968 without securing any permission from the Labour Court in this behalf. The petitioner challenged his dismissal order in the then West Pakistan Industrial Court, Central Zone, Lahore (now called Punjab Labour Court No, 2, Lahore) and was re-instated in service with full back benefits,- vide its order, dated 11-12-1970. An appeal was filed by the respondent which was dismissed on 30-12-1970 by the Punjab Labour Appellate Tribunal Lahore, hereinafter mentioned as the learned Tribunal. The petitioner reported for duty on 9-3-1970 and 30-1-1971 but he was not re-instated. He continued applying to the respondent in this connection till he was reinstated on 24-1971. In the meanwhile the respondent filed a Writ Petition against the decision given by the learned Tribunal which was also dismissed. The petitioner was still refused the arrears of his back wages over a long period till he filed an application under section 38(5) of the Industrial Relations Ordinance, 1969, hereinafter mentioned the Ordinance, before the learned Tribunal during the pendency of which he was given his arrears of pay. In the meanwhile, however, the respondent filed an application for leave to appeal in the Supreme Court which was also dismissed. The learned Tribunal later on decided the petitioner's complaint under section 38(5) of the Ordinance in his favour directing the respondent to comply with the order of the Industrial Court dated 11-2-1970 within one month entitling the petitioner to all the back benefits including seniority and right of promotion. The petitioner thereafter made representation to the respondent claiming his promotion to the post of a mechanic with effect from some month in 1959 when one Ghulam Nabi next junior to him was promoted or alternatively from the year 1965 when other persons junior to him were promoted. The arrears of back wages to the petitioner did not include the wages for the leave during the period of his non-employment and the dues of livery for that period.
2. ' This case remained pending in the Labour Court, Lahore, till 28-5-1975 whereafter it was transferred to this Court for disposal. The parties were called upon to produce their evidence which was completed on 30-11-1974. The petitioner examined himself in support of his petition beside submitting documents P. 1 to P. 17 while the statement of Noor Muhammad, Junior Clerk Establishment Government Transport Service, Multan, as R. W. 1 was recorded on behalf of the respondent. Some documents Exhs. D. 1 to D. 5 were also submitted in rebuttal.
3. ' The case of the petitioner given in detail above has been tried to be met on behalf of the respondent mainly on the ground that Order 18(b) of the Standing Orders Ordinance does not permit to file a petition claiming a right of promotion retrospectively nor it is guaranteed right of a workmen. The provisions of Order 18(b) are reproduced as hereunder : "Any individual workman who has grievance in respect of any matter under this Ordinance and intends to seek redress thereof, shall observe the following procedure:-
(a) the workman concerned shall bring his grievence to the notice of his employer in writing within fifteen days of the occurrence of cause of such greivance, and the employer shall within thirty days of such grievance being brought to his notice inquire into the matter giving, the workman concerned an opportunity of being heard, and communicate his decision, in writing to the said workman.
(b) if the employer fails to give a decision within the period specified in clause (a) or if the workman is dissatisfied with such decision, the workman may make complaint to the Industrial Court having jurisdiction within thirty days from the date of the decision or where the employer fails to give a decision within sixty days of the workman bringing the grievance to the notice of the employer unless the grievance has already been raised or had otherwise been taken conginzance of as an industrial dispute under the provisions of the West Pakistan Industrial Disputes Ordinance, 1968. Provided that no complaint shall lie against an order of termination of employment of a workman unless the workman concerned is an Officer of registered Trade Union and his employment is alleged to have been terminated for his Trade Union activities or unless the workman concerned whether an Officer of a registered Trade Union or not has been deprived of the benefits accruing to him under this Ordinance.
4. ' The representative of the respondent has argued laying emphasis on the last two lines occurring in the purview to clause (b) above that the matter of promotion of a workman is not covered by any provision of the Standing Orders Ordinance and on that score the petition must be dismissed.
5. On the other hand it is urged on behalf of the petitioner that the term "full back benefits" assured to the petitioner in the order of his re-instatement further confirmed by the learned "Tribunal included the benefits which would have been accrued to him, on account of his promotion to higher jobs in due course during the period of his non-employment for having been out of job for no default of his own. He also contended that as the petitioner proved himself to have been victimized on account on his Union activities prior to his dismissal he was entitled to a pro forma promotion with effect from the date when his promotion normally fell due some time in 1959, or with effect from some date in, 1965, at the most. He has also referred to clause (5) of Order 15 in the Standing Orders Ordinance entitling the petitioner to the full back benefits which reads as follows : "Where, for the purposes of conducting an inquiry into the alleged misconduct of a workman, the employer considers if necessary, he may suspend the workman concerned for a period not exceeding four days at a time. The order of suspension shall be in writing and may take effect immediately on delivery to the workman. During the period of suspension, the workman concerned shall be paid by the employer subsistence allowance of not less than fifty per centum of the wages, if the workman is found not guilty, he shall be deemed to have been on duty for the period of suspension and shall be entitled to the same wages as he would have received if he had not been suspended."
6. The effect of the relevant provisions quoted above does not lead to a conclusion that a workman illegally dismissed from his service and later on1 reinstated with full back benefits by a competent court can be deprived of due benefits which might have accrued to him by virtue of his promotion to the higher job or jobs during the period of non-employment due to such dismissal. Because the phrases "full back wages or full back benefits" clearly cover any such eventuality and the worker cannot be deprived of the benefits accruing to him in normal course but for being thrown out of job on account of illegal action. While saying this I am mindful of the fact that in some cases the matter of promotion lies within the discretion of the competent authority of the service concerned.
7. But in cases where a workman is clearly proved to have been victimized on account of his Union activities or by reason of an illegal inquiry conducted against him the said discretion cannot be presumed to have been exercised against him, during the period he remained out of job. No such presumption can validly be made in the eye of law or in the exercise of good conscience for the obvious reason of total absence of dereliction of duty or defect in the conduct of the workman. This being so, I am clear in my mind that the back benefits granted to the petitioner,-vide order dated 11th February 1970 of the then Industrial Court, Lahore, and further confirmed in appeal by the learned Tribunal included the benefits of enhanced wages which would have accrued to him on the due date of his promotion after the date of his dismissal. I find valuable support in this behalf from the esteemed order dated 29th September 1973 passed by the learned Tribunal in favour of the petitioner in connection with his complaint under section 38(5) of the Ordinance. The relevant observations in this behalf are as follows :- "During the course of the arguments it was brought to my notice that the petitioner had already officiated as a foreman and mechanic in the temporary vacancy during 1965. This fact was admitted by the respondent's counsel which means that the petitioner was fit for promotion. It was also brought to my notice that during the absence of the petitioner from his department his juniors,
1. e., coolies, had been promoted as foreman. The respondent's counsel could not deny this fact. He, however, contended that the petitioner was ordered to be re-instated with full benefits which did not mean that he was entitled to seniority or promotion. This contention has no force because re- instatement means that his position is the same as if he had not been dismissed, therefore the petitioner will have the same rights, duties, privileges and obligations as before."
8. ' In view of the above he is entitled to all the back benefits including seniority and right of promotion.
9. ' The only question which now survives to determine is as to what would be the date of promotion of the petitioner to the next higher job. Admittedly he was a fitter at the time of his dismissal on 5th June 1968. The order of re-instatement passed in his favour does not give him any benefits of service beyond this date, nor the petitioner appears to have moved in appropriate forum of law to seek redress of grievance regarding his promotion to the next job during the period intervening the first chance of his promotion as alleged by him and the date of his dismissal. However he would be entitled to be promoted to the job of mechanic immediately on occurrence of any such vacancy after the date of his dismissal. According to the seniority list placed on record Exh. P. 17, one Mr. Abdul Qadus mentioned at serial No, 23 was promoted from the post of helper to that of mechanic with effect from 1st January 1969. The petitioner may have availed this chance of promotion had he not been out of his job. Under the circumstances the petition is accepted and the petitioner is directed to be given the benefits of promotion to the job of mechanic with effect from 1st January 1969 with full benefits of wages henceforward.