1986 PLP 668 (PLC(CS))

H.R. Haider for Appellant. Muhammad Idrees for Respondent. Date of hearing: 8th December, 1985. The decision, dated 5‑1‑1985 recorded by the learned Presiding Officer, Punjab Labour Court No. 2, Lahore has been challenged, whereby accepting the grievance petition of the appellate for recovery of wages for the period he remained illegally retired from service was dismissed on the sole ground that he did not assert that he remained jobless during the period he remained out of job with the respondent.

2. The appellant went on leave from 19‑4‑1976 to 24‑4‑1976. He did not resume duty on 25‑4‑1976 but had been sending leave applications supported by medical certificates. The applications are Exhs. R‑1 to R‑

6. By means of a notice published in the newspaper he was asked to resume duty by 10‑7‑1976. He did not do so, therefore, was compulsorily retired from service by way of punishment. On preferring departmental appeal he was allowed leave with full pay upto 31‑8‑1976. He further appealed against the order of compulsory retirement which too was accepted but the period from 1‑9‑1976 to 22‑1‑1978 was treated as leave without pay. This order was challenged in the grievance petition.

3. No doubt, it was necessary for the appellant to assert that he remained jobless during the period he remained compulsory retired, but the present case is slightly different from ordinary cases of reinstatement. In other cases the employer contests the prayer of reinstatement but in the present case the employer himself set aside the order of compulsory retirement and wrongly treated the period of retirement as leave without pay. Since the period of absence for which the appellant punished with compulsory retirement was treated as leave without pay, it means that the leave applications of the appellant were accepted. Since the appellant was no longer treated as absence without leave, the punishment awarded to him could not stand. This being so, the appellant believed that without asserting that he remained jobless, he would be entitled to the wages for the period of retirement. In these circumstances it appears necessary that the appellant may be given an opportunity to assert that he remained jobless and also opportunity to the respondent to prove that the appellant remained employed elsewhere.

4. As a result the appeal is accepted and setting aside the impugned decision of the learned lower Court, the case is remanded with the direction that the parties be given opportunity to leave evidence on the question whether the appellant remained jobless or had been earning his livelihood during the period from 1‑9‑1976 to 22‑1‑1978. If the appellant happens to prove his contention, he may be entitled to wages for the period mentioned above. A. E.??? Appeal accepted.