1998 PLP 1250 (SCMR)

ZIA MAHMOOD MIRZA, J.

This order will dispose of both the abovementioned petitions for leave to appeal as they arise from same grievance petition and parties thereto are also the same.

2. Jehangir Ahmed Khan, respondent was working as Audit Assistant with the petitioners when a show-cause notice was issued to him alleging that while making purchases from the market, he did not make payments to the shop keepers although he had been receiving money from his employers in advance. He submitted his reply denying the allegations made against him. This was followed by a Departmental enquiry during which, the respondent was found guilty and finally dismissed from service on 1-4-1987.

3. Respondent challenged his dismissal in a grievance petition filed under section 25-A of the Industrial Relations Ordinance, 1969 which was accepted by the Labour Court and he was ordered to be reinstated without back benefits. Against this order, two appeals were filed, one by the respondent claiming back benefits and the other by the petitioners to challenge the reinstatement of the respondent. The Labour Appellate Tribunal by its judgment dated 13-10-1991 dismissed both the appeals.

4. Petitioners and the respondent then filed Constitutional Petitions in the High Court assailing the orders of the Courts below to the extent of their respective grievances.

5. A learned Judge in the High Court allowed the writ petition (3449-92) of the respondent holding that "simply because he had not stated in his statement before the Punjab Labour Court that he remained jobless during his termination period, he cannot be denied back benefits particularly so when in the memo. of appeal before the Punjab Labour Appellate Tribunal he had specifically mentioned this aspect. It is true that before the Punjab Labour Court he did not specifically state that he remained out of job during the currency of his termination but certainly before the Appellate Tribunal in the memo of appeal he took the specific ground that he remained jobless during that period. If from the averments of the pleadings of the parties it is reflected that some case is made out then the duty is cast upon the Courts to pass appropriate order." Taking this view of the matter, order of the Labour Appellate Tribunal declining back benefits was set aside and the case remitted to the Punjab Labour Court for allowing the parties to lead evidence on the question of back benefits. Writ Petition No.5757 of 1993 filed by the petitioners was, however, dismissed by the learned Judge upholding the findings of the Courts below regarding the status of the respondent as a workman within the meaning of Industrial Relations. Ordinance.

6. We have heard the learned counsel appearing for the petitioners. He has contended that the respondent not having even averred in his grievance-petition that he had remained jobless during the period of his dismissal from service nor having led any evidence in this behalf, the Labour Court and the Labour Appellate Tribunal rightly denied him back benefits. Grievance made by the learned counsel is that the learned Judge in the High Court by remanding the case to the Labour Court for allowing the parties to lead evidence on the question of back benefits has re-opened the case so as to allow an opportunity to the respondent to fill in the lacunae. Such an order, in the submission of the learned counsel was unwarranted in exercise of extraordinary jurisdiction in writ. Learned Counsel has further contended that the respondent did not allege in his grievance-petition that he was a workman nor did he lead any evidence to show that he was performing any duties of manual or clerical nature. His duties in, fact were compareable to those of a Salesman who has all along been held by this Court to be not a Workman. It is submitted by the learned counsel that the Labour Appellate Tribunal acted illegally in holding that because there was no evidence that any Cartmen or Peon was given to the respondent, it would be presumed that the articles which he had been purchasing from the market were carried by him for delivering to the petitioners which obviously was a manual work. According to the learned counsel it was the duty of the respondent to prove by evidence that he was performing any manual work or any duties of clerical nature which he failed to do. It is argued by the learned counsel that the respondent could not be declared a workman on presumptions. .

7. Contentions of the learned counsel, in our view, need consideration. Leave to appeal is, therefore, granted in both the abovementioned petitions. Interim stay order already granted shall continue in force. A.A./G-14/S Leave granted.