1994 PLP 743 (PLC)

Ijaz Anwar for Petitioner. A.K. Dogar for Respondent No.1. Date of hearing: 27th November, 1993. This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, calls in question the judgment, dated 17‑2‑1985, passed by the Punjab Labour Appellate Tribunal, Lahore, whereby the decision, dated 26‑11‑1984, of the Punjab Labour Court No.5, Faisalabad, was upheld in so far as back benefits were disallowed to the petitioner.

2. The facts in brief are that the petitioner was dismissed from the service of respondent No.1 on 4‑1‑1983. On a grievance petition filed by her under section 25‑A of the Industrial Relations Ordinance, 1969, she was re instated without back benefits on the ground that there was no evidence on record to show that the petitioner remained out of job during her dismissal period. Being aggrieved with the aforesaid order, the petitioner preferred an appeal which was also dismissed by the Punjab Labour Appellate Tribunal, Lahore, vide its judgment, dated 17‑2‑1985. The operative part thereof reads thus:‑‑ "The ground given by the learned lower Court for disallowing back benefits to the appellant is that no evidence was produced to prove that the appellant remained jobless during the period of her dismissal from service. Back benefits are allowed while accepting the grievance petitions not for the purpose of punishing the employer but for the reason that the worker remained out of job not for his fault. If the worker has earned his livelihood, he has to account for it to the employer before he can get a direction of payment of back benefits. If he has earned less than what he would have earned but for his uncalled for an unjustified removal from service, he is entitled to only the difference, but if he has earned more, he cannot be allowed back benefits. Since only the appellant knew what he had earned during the period of his dismissal from service, the onus is upon her to prove either that she remained totally jobless or that she earned less than what she would have earned if she had not been removed from service. Since in the present case, the appellant failed to prove that she remained jobless, she was rightly disallowed back benefits."

3. Learned counsel for the petitioner was unable to show that she remained out of job. It is admitted that there is nothing on the record to show that the petitioner was not doing any job after her dismissal from service. She did not even orally assert at any stage before the Labour Court that she was not gainfully employed: elsewhere during the period of her unemployment. Keeping in view these facts and the principle laid down by the Supreme Court in the cases of Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others 1991 SCMR 2087 and General Manager, National Radio Telecommunication Corporation, Haripur, District Abbottabad v. Muhammad Adam and others 1992 S C M R 2169 the petitioner was rightly held not entitled to back benefits. Resultantly, the writ petition fails and is hereby dismissed, but there shall be no order as to costs. H.B.T./A‑658/L Petition dismissed.