1999 PLP 223 (PLC)

ANWAR ZAHEER JAMALI, J.‑‑‑The petitioner through this petition has prayed for the following relief:‑‑ "It is therefore, respectfully requested that this Hon'ble Court may be pleased to admit the petition, order for grant of back benefits and allow full cost, in the best interest and equity." The brief facts leading to the filing of present petition are that the petitioner was working as a Mobile Credit Officer with the respondent No. l and on the basis of his good performance he had also earned three advance increments during the period 1980 to 1982. In the month of March 1984 the petitioner was charge‑sheeted by the respondent No. l and after departmental proceedings he was removed from service vide order dated 10‑9‑1985. This order for removal from service was firstly challenged by the petitioner before the civil Court and such suit filed by him was decreed as prayed. However, in appeal the learned District Judge Sukkur, on the point of jurisdiction, set aside the decree of the civil Court, and consequently dismissed the suit. The petitioner thereafter served a grievance notice under section 25‑A of I.R.O. 1969 on respondent No.1 and followed his remedy by filing his grievance petition before the Sindh Labour Court No. VII, Sukkur. This grievance petition of the petitioner was ultimately allowed in his favour to the extent of his reinstatement in service without back benefits, vide order dated 1‑11‑1989. The petitioner being dissatisfied with his mere reinstatement in service, filed an appeal before the Sindh Labour Appellate Tribunal, at Karachi, wherein he prayed for grant of full back benefits. On service of notice of this appeal the respondent No.1 also filed his cross objections challenging the reinstatement of the petitioner before the Appellate Tribunal. The Learned Presiding Officer of Sindh Labour Appellate Tribunal after hearing the arguments, vide its order dated 17‑10‑1990, dismissed the appeal of the petitioner and also dismissed the cross‑objections. of the respondent No. 1, being not pressed by his counsel. Mr. M.A. Rasheed the learned counsel for the petitioner has contended that since the petitioner was reinstated in service under the orders of the Labour Court NO.VII Sukkur and such order was also maintained by the Sindh Labour Appellate Tribunal, refusal of back benefits to the petitioner was not justified, as the petitioner during the relevant period, has remained jobless and suffered such loss due to illegal actions of the respondents. The learned counsel has placed his reliance on the case‑law reported as Gul Hassan v. D.S. Pakistan Railways, etc. 1990 PLC 757, Gul Habib v. Federation of Pakistan through Chairman Pakistan Railways, Railway Ministry Islamabad, 1988 PLC 645 and Pakistan through General Manager, P.W.R, Lahore v. Mrs. A.V. Issacs (PLD 1970 SC 415). On the other hand, Mr. Zaheer Hassan the learned counsel for respondents Nos. l and 4 to 6 has submitted that the petitioner has accepted the order of his reinstatement in service with the respondent No. l without any protest and thereafter, this petition has been filed only for the purpose of causing harassment to his clients. On the point of back benefits to the petitioner, the learned counsel submitted that there are concurrent findings of facts recorded by the Labour Court and the Appellate Tribunal against the petitioner which needs no interference in the Constitutional jurisdiction of this Court. Learned counsel further pointed out that the petitioner has not challenged these two orders of the Tribunal in this petition and, therefore, this petition is not maintainable. The learned counsel also submitted that in the instant case question of back benefits is not purely a question of law but mixed question of law and facts and such disputed question of fact cannot be decided in writ jurisdiction. Lastly the learned counsel submitted that other persons, who were removed from service and subsequently reinstated were also not awarded back benefit by the Labour Court, and since the reinstatement of petitioner has been merely ordered on this ground that other persons removed from service were reinstated and petitioner deserved similar treatment, therefore, the petitioner is also not entitled for any back benefits. Mr. S. Zawar Hussain Jaffri the learned Addl. A.‑G, has also supported the arguments of Mr. Zaheer Hassan and submitted that this Court in its Constitutional jurisdiction cannot sit to decide a factual dispute of back benefits as claimed by the petitioner moreso as nothing has been placed or record by the petitioner to substantiate his allegations in this regard. The petition is thus liable to be dismissed. We have considered the arguments advanced before us and perused the case record. A perusal of the order passed by respondent No.3 goes to show that reinstatement of the petitioner was mainly ordered by the Labour Court, as other persons who were also removed from service were reinstated by the respondent No. 1, and there for; the petitioner also deserved a similar treatment. About back benefits, the respondent No.3 has further observed that back benefits were not granted to the petitioner keeping in view the circumstances of the case. Similarly the respondent No.2 in its order dated 17‑10‑1990 has made a elaborate discussion for disallowing back benefits to the petitioner. In view of the fact that these two orders disallowing the claim of back benefits to the petitioner are in the field and have not been challenged by the petitioner before us, this petition is not maintainable. Apart from it, we are of the view that the question of back benefits to an employee is not to be resolved in his favour as a necessary corollary of his reinstatement in service. Initially the employee has to discharge the burden of proof that, during the relevant period he remained jobless and was not engaged in any other gainful venture. Obviously, this aspect of the matter cannot be resolved without sufficient evidence or other material to clarify factual position in this regard. Examining the instant case from this angle, we find that the petitioner has not even cared to file the copies of grievance petition, its reply or the evidence, if any, recorded before the trial Court or any other material to substantiate his claim. In the case of Muhammad Bashir and others v. Chairman Punjab Labour Appellate Tribunal Lahore and others (1991 SCMR 2087), the honourable Supreme Court of Pakistan, while dealing with the question of back benefits observed that back benefits do not automatically follow the order of reinstatement, as regards the matter of onus of proof, it further observed that a workman will be entitled to receive back benefits if he could show that he was not gainfully employed during the period he was deprived of service till the date of reinstatement, and back benefits which are to be paid to a workman are not to be allowed to him as a punishment to the employer for illegally removing him from service, but only to compensate him for remaining jobless on account of illegally removed from service by the employer. Similar view was followed by a Division Bench of this Court in the case of National Bank of Pakistan Hyderabad v. Sindh Labour Appellate Tribunal Karachi and another (1993 PLC 625). The case‑law referred by the learned counsel for the petitioner is on different premises and is not applicable to the facts and circumstances of this Case. In the instant case, we respectfully follow the view taken by the Honourable Supreme Court of Pakistan in the case of Muhammad Bashir (supra). As a result of the above discussion this petition, being without substance is dismissed. Foregoing are the reasons for our short order dated 21‑10‑1998. H.B.T./ A 288/K Petition dismissed.