1995 PLP 745 (PLC)

4. In support of this petition, learned counsel for the petitioner has urged the following pleas:‑‑ (i) that the finding of the learned Labour Appellate Court is based on misreading of evidence inasmuch as petitioner had stated that he was jobless pursuant to the order of termination; (ii) That the finding of the learned Labour Appellate Court is violative of the law laid down by the Hon'ble Supreme Court reported in Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others (1991 SCMR 2087) and Dilkusha Enterprises Ltd. v. Abdul Rashid and others (1985 SCMR 1882).

5. Learned counsel for the respondent while defending the impugned judgment, has submitted as follows:‑? ??????????? (i) that petitioner did not state in his grievance petition which is Annexure `A' with the writ petition that he was jobless; ??????????? (ii) that the finding of fact arrived at by the two Courts below cannot be interfered with in writ jurisdiction. Reliance was placed on Municipal Committee, Pasrur v. Compensation Commissioner and others (1992 CLC 752). ???????????

6. I have heard learned counsel for the parties and have gone through the precedent case‑law relied upon. ???????????

7. In Dilkusha Enterprises Ltd. v. Abdul Rashid and others (1985 SCMR 1882), the worker had admitted that he had worked in Textile Mills for three months after termination of his service. As there was nothing on record to show that the workman had remained unemployed during the entire post termination period, the Hon'ble Supreme Court upheld the order of Sindh Labour Court granting back benefits to the workman. It was observed:‑? "In connection?? with this contention it was argued by the learned counsel that the onus to prove that he was not gainfully employed rests on the worker and in the circumstances of this case, therefore, the petitioner cannot be blamed for not leading evidence on this question. Reference was made to the case of Karachi Transport Corporation v. Jamil Beg 1981 PLC 862 and Bantva Memon, Khidmla Committee v. Niamatullah 1981 PLC 178 but we are unable to agree with the broad proposition of law that the initial burden to prove lies upon the worker to establish that he was not gainfully employed elsewhere during the relevant period in order to succeed to the grant of back benefits, for, this being a negative fact the worker can hardly establish it with anything substantial evidence exc4pt this oral assertion that he was not gainfully employed elsewhere and then it would be for the employer to prove affirmatively that he was so employed." In Qadeer Ahmad v. Punjab Labour Appellate Tribunal, Lahore and others (PLD 1990 SC 787), it was observed as follows:‑‑ "As regards the question of entitlement to back benefits, the established proposition is that where the order of dismissal or removal has been set aside unconditionally, found to be without jurisdiction and uncalled for, necessarily the back benefits have to be paid. It has to be paid under the authority of the Tribunal or person setting aside the order of dismissal and if no such order is passed, then under the orders of the competent authority in the matter, Mere setting aside of the order of dismissal, irrespective, of whether it is set aside conditionally or unconditionally, would not, as claimed by the appellant, entitle the affected functionary to claim arrears of pay and back benefits." Similarly, in Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore (1991 SCMR 2087) the Hon'ble Supreme Court laid down two guiding principles with regard to back benefits and these are:‑‑ (a) that back benefits do not automatically follow the order of re?instatement where the order of dismissal or removal has been set aside; and (b) as regards the matter of onus of proof in cases where a workman is entitled to receive the back benefits it lies on the employer to show that the workman was not gainfully employed during the period the workman was deprived of service till the date of his reinstatement thereto; subject to the proviso that the workman has asserted at least orally, in the first instance, that he was not gainfully employed elsewhere. On his mere statement to this effect the onus falls on the employer to show that he was so gainfully employed. The reason is that the back benefits are to be paid to the workman not as a punishment to the, employer or illegally removing him but to compensate him for his remaining jobless on account of being illegally removed from service. . In the afore‑referred case, the Hon'ble Supreme Court had dismissed three appeals wherein the back benefits had been claimed and had been refused by the Courts below. In two appeals while considering the merits of each appeal, the august Supreme Court came to the conclusion that as the conduct of the workman was not blameless and this contributed to the loss caused to the management as they were bound to serve loyally and devotedly, the refusal to pay back benefits was unexceptionable. In the third appeal, the back benefits were refused on the ground that the workman had made no oral assertion even that he had not been gainfully employed during the period of his termination from service. There is evidence against the petitioner of misappropriating the public money that he had received from passengers. It is also in evidence that he permitted twenty persons to sit on the floor roof of the bus. He charged fare from those passengers but did not deposit the same. His conduct is not above board and does not merit indulgence in the equitable jurisdiction of this Court. He was reinstated in service by the Punjab Labour Appellate Tribunal, Lahore, on a technical ground i.e. that the charge was time‑barred.

8. The conduct of the petitioner was not blameless. In his grievance petition filed after two months of his termination, he did not state that he was without a job. The refusal to pay back benefits by the learned Punjab Labour Appellate Tribunal, Lahore, is not unjustified and, therefore, does not call for interference.

9. For what has been discussed above, there is no merit in this writ petition which is hereby dismissed with no order as to costs. AA./M‑2522/L ?????????? ??????????????????????????????????????????????????????????????????????? Petition dismissed.