1986 PLP 1166 (PLC)

‑‑‑S. 25‑A‑‑Claim of back benefits by re‑instated employee‑‑Re‑instated employee making no assertion in evidence that he was not gainfully employed during termination of his service but simply stating that he was jobless at the time of making the statement‑‑Inference that such employee had been employed after his termination but was jobless when making statement, held, would be quite correct. Dilkusha Enterprizes Ltd. v. Abdul Rashid and others 1985 SCMR 1882 ref. (c) Constitution of Pakistan (1973) ‑‑‑Art. 199‑‑Industrial Relations Ordinance (XXIII of 1969), S.25‑A‑ Constitutional jurisdiction, exercise of‑‑Where finding of Tribunal was based on appreciation of evidence, High Court in exercise of constitutional jurisdiction, held, would not ordinarily undertake reappraisal of evidence so as to come to a different conclusion‑‑Labour Appellate Tribunal having not committed any illegality in disallowing back benefits to petitioner, interference through constitutional jurisdiction, held, would be uncalled for. Ch. Muhammad Ikram for Petitioner. ZIA MAHMOOD MIRZA, J.‑‑ This Constitution petition is directed against the order of the Punjab Labour Appellate Tribunal, dated 19‑5‑1986 whereby the petitioner has been disallowed the back benefits.

2. Facts, briefly stated are that the services of the petitioner were terminated on account of retrenchment. Grievance petition filed by him under section 25‑A of the Industrial Relations Ordinance, 1969, to challenge his termination was accepted by the Punjab Labour Court No. 4, Faisalabad, vide order, dated 15‑2‑1986 and the petitioner was re‑instated with back benefits. Respondents Nos. 1 and 2 filed an appeal which has been allowed to the extent of disallowing back benefits to the petitioner. Learned Appellate Tribunal while holding that the petitioner was not entitled to the back benefits observed that "he did not assert that right from the date of his termination from service, he remained jobless. He rather stated, 'Now‑a‑days I am jobless'. It shows that the respondent got some job after the termination of his service but at the time he came into the witness‑box, he may be out of service. It was necessary for him in these circumstances to give period during which he remained employed elsewhere and wages which he earned, so that whatever he earned could be deducted from the back benefits, and for this reasons his back benefits cannot be calculated and this is another reason for disallowing the said claim".

3. We have heard the learned counsel for the petitioner, who has mainly contended that the order of termination having been set aside and re‑instatement in service ordered, the petitioner was entitled to the back benefits for the period during which he remained out of job for no fault of his. The proposition canvassed by the learned counsel is not wholly correct. No doubt, an employee whose termination has been adjudged to be wrongful is entitled to the back benefits /arrears of salary for the period of his termination but if during that period, he had been engaged in any other gainful employment or some profitable business, then any amount earned by him from such employment or business would have to be set off against his claim for arrears of salary because as observed by their Lordships of the Supreme Court in Pakistan through General Manager, P.W.R., Lahore v. Mrs. A.V. Issacs P L D 1970 SC 415 'on general principles, too a person cannot be allowed to reap a double advantage.' In the context of this proposition, learned counsel has contended that it was for the employer to prove affirmatively that the petitioner was gainfully employed somewhere during the relevant period. In support of this contention, learned counsel placed reliance on Dilkusha Enterprizes Ltd. v. Abdul Rashid and others 1985 SCMR 1882. In the precedent case, an argument was raised on behalf of the employer that the onus to prove that he was not gainfully employed rests on the worker. This argument was repelled with the observation 'this being a negative fact the worker can hardly establish it with any substantial evidence except his oral assertion that he was not gainfully employed elsewhere and then it would be for the employer to prove affirmatively that he was so employed'. Even from this observation, it is quite evident that the petitioner was at least to make an oral assertion that he was not gainfully employed elsewhere during the relevant period. In the instant case, petitioner has admittedly made no such assertion and he only stated, as noted in the impugned order, 'now‑a‑days I am jobless'. From this statement, learned appellate Tribunal drew an inference that the petitioner had got some job elsewhere after his services were terminated and was out of job at the time when he came to give the evidence. This inference appears to be quite correct otherwise the petitioner would have clearly stated that he had been jobless throughout. In any case, the finding of the learned appellate Tribunal is based on appreciation of evidence and this Court in its Constitutional jurisdiction does not ordinarily undertake re‑appraisal of the evidence i so as to come to a different conclusion.

4. For the foregoing reasons, we are of the view that the learned appellate Tribunal has not committed any illegality in disallowing the back benefits to the petitioner. Impugned order, therefore, does not call for any interference in writ jurisdiction. This petition, therefore, fails, and the same is dismissed in limine. A. A.