1988 PLP 645 (PLC)

Date of hearing: 5th December, 1987. Gul Habib petitioner who was watchman in Railway was dismissed from service on 23-7-1987. A criminal case of theft was also registered against him but he was acquitted by Mr. Aslam Hayat Kalyar, Special Railway--Magistrate: vide judgment dated 23-4-180 observing that the prosecution had failed to establish its case against the petitioner. The Railway Administration without awaiting tile result of the criminal case and without holding an inquiry dismissed the petitioner from service The petitioner firstly challenged his dismissal in the Civil Court and after failing there on the question of jurisdiction approached the Labour Court by filing a grievance petition under section 25-A of the Industrial Relations Ordinance, 1969. This petition was accepted by Punjab Labour Court No.2 Labour vide order dated 21-8-1986. The Labour Court observed that even justice, good conscious and fair play demanded that in a case of theft inquiry should have been held by the Authority or at least result of the proceedings in a criminal Court should have been awaited. It was held that the order of dismissal, dated 23-7-1978 had no sanction of law. The order was set aside and a direction to re-instate the petitioner in service with all back benefits was made. The order of the Labour Court dated 21-8-1986 was challenged by the respondents before the Punjab Labour Appellate Tribunal Lahore by filing an appeal. This appeal was partly accepted and the order of the learned Labour Court was modified to the extent that the back benefits were disallowed. This led to the filing of the present constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973.

2. I have heard the learned counsel for the parties. The learned Appellate Tribunal upheld the order of the Labour Court so far as it recorded the conclusion that the order of dismissal from service was rightly set aside since no inquiry was held and tile petitioner was not afforded an opportunity to defend himself or to show that tile charge was groundies but the back benefits were disallowed. The reason given for disallowing back benefits was:- "However back benefits have been wrongly awarded to the respondent. The respondent did not state in his statement that he remained jobless from the date of removal from service. Back benefits are awarded not by way of punishment to the employer for passing an illegal order of removal from service but in order to compensate the worker who had remained out of job not for any fault of his. It is, therefore, necessary for such workers to at least assert that from the date of termination of their services, they remained jobless." It is apparent from the above that the learned Appellate Tribunal was suffering from misconception that the burden of proof of the factual assertion that the worker was not gainfully employed elsewhere during the relevant period lay on the worker. In any case the observation of the learned Appellate Tribunal that the petitioner had not stated in his statement that he remained jobless from the date of removal from service is also misplaced. Had the learned Appellate Tribunal gone through the grievances petition, it would not have made the aforequoted observation as in para.11 of the petition the petitioner had asserted that he has no source of income. Para. 11 of the petition reads:- "He is rotting in the Courts for the last 4/5 years without any source of income and in view of his starving position and direction of the High Court, expeditious decision can only do justice. " The respondents in the reply filed by them failed to controvert this assertion. In fact no reply whats over was given of this para in the reply filed by the respondents. It is apparent that as this assertion was not at all controverted the same is to be taken to have been admitted and as such there was no occasion for the petitioner to repeat in his statement what stood already admitted. Had the learned Appellate Tribunal gone through the pleadings of the parties he would 13 not have made the observations noted above Thus, the impugned judgment suffers from rot only misconception of law but also misconception of fact. On the question of allowing back benefits and the burden of proof reference may be made to Dilkusha Enterprises Ltd. v. Abdul Rashid and others (1985 S C M R 1982) wherein Zaffar Hussain Mirza, J. observed as under:- "Reference was made to the case of Karachi Transport Corporation v. Jamil Beg 1981 P L C 862 and Bantva Memon, Khidmla Committee v. Naimullah 1981 P.L.C. 174 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 any substantial evidence except his 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 the instant case the petitioner did assert in. his petition that he had no source of income throughout the relevant period. This assertion was neither denied nor in the evidence of the respondents anything whatsoever was brought in order to show that the petitioner was gainfully employed during all this period. This being the position the learned Appellate Tribunal acted without lawful authority in modifying the order of the Labour Court to the extent that it had allowed the back benefits.

3. The net result of the above discussion is that the order of the learned Appellate Tribunal is hereby declared to have been passed without lawful authority and hence of no legal effect. The writ petition is hereby accepted with costs. A. A./G-105/L Petition accepted.