1988 PLP 719 (PLC(CS))

Muhammad Zaman Qureshi for Appellant. Syed Anwar‑ul‑Hasan Gilani for Respondents. Date of hearing: 19th January, 1988. This is an appeal directed against the decision dated 26‑8‑1984 recorded by the learned Presiding Officer, Punjab Labour Court No.5, Faisalabad, whereby the grievance petition of the appellant for his reinstatement in service was accepted without back benefits. The appellant claims back benefits in the present appeal.

2. The respondents also brought an appeal challenging the direction of reinstatement of the appellant in service passed by the learned lower Court but had withdrawn it unconditionally on the ground that a writ petition had been admitted for regular hearing by the High Court. The writ petition is still pending in the High Court.

3. The learned counsel for the respondents has requested that till the decision of the writ petition the hearing and disposal of the present appeal may be stayed. I do not find any., justification in this prayer. If a stay order had been obtained from the High Court, of course, the disposal of the present appeal may have been stayed.

4. The learned Lower Court has disallowed back benefits to the appellant for the reason that he did not urge in his statement nor produced any evidence that during unemployed period he remained jobless. Learned counsel for the appellant has argued that since it has been found that the respondents failed to establish that the appellant had committed misconduct, therefore, the appellant is entitled to back benefits. The question is not of entitlement of back benefits but the point is whether the appellant can claim back benefits without showing that he did not earn anything during the period he remained out of service with the respondents. Back benefits are allowed since the worker concerned could not serve the employer not for any fault of his but due to the illegal order of termination from service, therefore, if he shows that he remained unemployed only then the employer can be burdened to pay back benefits. The worker cannot claim double back benefits if he remained employed elsewhere. Unlike civil money suits the employer does not know if the employee removed from service got any employment elsewhere, therefore, he is not in a position to prove the fact. In money suits the accounting party is the creditor and he knows what he owes to the plaintiff and what is due to the latter. Therefore, he can claim set off and the onus is upon him. In labour cases if the worker concerned states that he remained jobless, the onus then shifts upon the employer to show that in reality the worker remained employed elsewhere, but in cases where the worker does not make an assertion that he remained jobless, he cannot be allowed back benefits because back benefits are not allowed as a punishment to the employer for removing the employee from service without any just cause. Since the appellant did not urge before the learned lower Court that he had remained unemployed during the period he remained under dismissal order, therefore, back benefits have been rightly disallowed to him.

5. As a result, the appeal fails and is dismissed A. E. /500/Lb.P Appeal dismissed