1994 PLP 745 (PLC)

'Date of hearing: 24th April, 1994. The petitioner was dismissed from service. He challenged this order through grievance petition 25‑A of the I.R.O. before the respondent No.2, who accepted the petition vide order, dated 27‑11‑1990. The respondents Nos.3 and 4 assailed this order through an appeal before the respondent No.1, who partially accepted the same vide order, dated 26‑3‑1991. The result was that the order of the petitioner to the extent of reinstatement passed by the respondent No.2 was upheld while the remaining part of the order in respect of the back benefits was set aside. The petitioner has now filed the present Constitutional petition against the latter part of the order. The petition was admitted to regular hearing and notices were issued to the respondents. The respondents Nos.3 and 4 have entered appearance and contested the petition while the remaining respondents are proceeded ex parte.

2. The learned counsel for the petitioner in support of the petition argued that since the petitioner was suffering from kidney trouble and was not in a position to move about, therefore, he remained out of job. The arguments are summed up with the submission that the respondent No.1 wrongly and illegally deprived the petitioner of the back benefits.

3. On the other hand, the learned counsel for the respondents Nos.3 and 4 argued that the petitioner neither in the grievance petition pleaded nor as P.W.1 stated before the Labour Court that he was not gainfully employed during the period intervening between dismissal and reinstatement by the Labour, Court. It is added that the statements of P.W.2 and P.W.3 are also not relevant because both of them have stated about seven/eight months in the year 1985 while the total period comes to more than 3‑1/2 years. The arguments are summed up with the submission that back benefits do not automatically follow reinstatement. The same are also not awarded as punishment to the employer for wrongful dismissal but the purpose is to compensate the workman for the period he remained jobless. The learned counsel in this behalf has referred to the judgment of the Hon'ble Supreme Court reported as Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others 1991 SCMR 2087.

4. I have given my anxious considerations to the arguments of the learned counsel for the parties, gone through the record and precedent case. The petitioner "neither pleaded in the grievance petition that after dismissal he is without job nor as P.W.1 stated that he is jobless since his dismissal by the respondents Nos.3 and

4. While P.W.2 stated that in summer 1985 he received intimation that the petitioner was suffering from serious pain and he remained confined to bed for about seven/eight months. Similarly, P.W.3 stated that in July, 1985 the petitioner fell ill and he was treated by Dr. Jehangir for a month but there was no improvement. This is all what he has stated. This way these statements also do not help the petitioner in any manner. The learned counsel has referred to the judgment of Muhammad Bashir and others where following two principles were laid:‑‑ "However, two principles are now established under the judgments of this Court: (a)??????? that back benefits do not automatically follow the order of reinstatement where the order of dismissal or removal has been set aside; and (b)??????? as regards the matter of‑onus of proof in cases where a workman is entitled to receive the back benefits it lies on the employee to show that the workman was riot gainfully employed during the period the workman was deprived of service till the date of his reinstatement thereto; subject to the proviso that the workman has asserted at least orally, in the first instance, that he was not gainfully employed elsewhere. On his mere statement to this effect the onus falls on the employer to show that he was so gainfully employed. The reason is that back benefits are to be paid to the workman not as a punishment to the employer for illegally removing him but to compensate him for his remaining jobless on account of being illegally removed from service." If the case of the petitioner is adjudged under the law and the above rules laid down by the Supreme Court then there is no merit in the petition. These principles were reiterated in the later judgment reported as General Manager, National Radio Telecommunication Corporation, Haripur, District Abbottabad v. Muhammad Aslam and 2 others 1992 SCMR 2169. It was held in this case that there was nothing on record to show that the respondent was not doing any job after his services were terminated. The same is exactly the position here. '

5. The upshot of this discussion is that there is no merit in this Constitutional petition. The same is dismissed with no order as to costs. H.B.T./M‑1708/L ?????????????????????????????????????????????????????? ??????????? Petition dismissed.