1984 PLP 591 (PLC)

M/s, Dilkhusha Enterprises Ltd. v. Abdul Rashid and others C. P. S. L. A. No. K‑254 of 1983 (unreported) rel. Syed Ashraf Hussain Rizvi for Appellant. Nemo for Respondent. Date of hearing : 24th January, 1984. The services of the appellant were terminated vide order, dated 6th March, 1980. He challenged the termination of his services, in a grievance application filed under section 25‑A, I. R. O., before the learned Labour Court No. XIV, at Karachi. In the reply statement the respondent amongst other grounds contended that they had applied for the closure of the factory to the Labour Court under Standing Order 11‑A. The learned Labour Court finding the order of termination illegal directed reinstatement of the appellant but refused to award back benefits to him mainly on the ground that the petitioner had to justify that he was not employed some where else during the intervening period and had not remained idle. He filed this appeal against the order of refusal of award of back benefits, whereas the management filed an appeal against the order of his reinstatement. The management's appeal has been dismissed for non‑prosecution. Mr. Syed Ashraf Hussain Rizvi, the learned counsel for appellant has mainly contended that the order of termination of services of the appellant was illegal as held by the learned Labour Court against which the appeal has been dismissed with the result that it has reached its finality and, therefore, he would be entitled to back benefits. He has relied on a number of authorities including an unreported case of the, Supreme, Court of Pakistan in C. P. S. L. A. No. K‑254 of 1983 Messrs Dilkhusha Enterprises Ltd. v. Adul Rashid and others recently decided on 23rd October, 1983 wherein the Supreme Court has categorically held that the onus that the workman was not gainfully employed elsewhere during the intervening period would lie on the employer to prove affirmatively that he was so employed in case it is asserted by the workman that he was not so employed. In the instant case no evidence was led on the issue as contended by Mr. Syed Ashraf Hussain Rizvi, the learned counsel for the appellant, the respondent and his counsel having failed to appear without any intimation. He has con tended that since burden of proof lay on the respondent and since they have failed to produce any evidence the appellant would be entitled to award of back benefits as he so asserted in his grievance application as a natural corollary of the order of termination of service having been declared as illegal. Reference is also invited to the recent decision of this Tribunal in Appeal No. KAR‑201 of 1983 Muhammad Yasin v. Pakistan Railways, decided on 15th January, 1984. Accordingly, I set aside the order of the learned Labour Court only to the extent of refusal of award of back benefits, award the back benefits and allow the appeal accordingly. A. E. Appeal allowed.