1988 PLP 604 (PLC(CS))

‑‑Ss.25‑A & 38(3)‑‑Wrongful termination of service‑‑ Re‑instatement‑ Back benefits are granted not as punishment to employer but for reason that workman remained out of job on account of illegal order‑ Workman not asserting before Labour Court that he remained jobless since time of termination of service, held, was rightly dis‑allowed back benefits. (b) Industrial Relations Ordinance (XXIII of 1969)‑‑ ‑‑‑S. 25‑A‑‑Back benefits‑‑Employee removed from service and got employment elsewhere‑‑Onus to prove is upon employer‑‑Employee, however, should first assert that he remained jobless. M. Arshad Munir for Appellants. Date of hearing: 27th April, 1986. The two appeals captioned above arise from the decision dated 18‑2‑1986 recorded by the learned Presiding Officer, Punjab Labour Court No.6, Rawalpindi, whereby the appellants have been directed to be re‑instated in service without back benefits. Both the appeals challenge the impugned decision to the extent it disallowed back benefits to the appellants. As common question is involved in the two appeals, they are being disposed of together through this single judgment.

2. The ground on which the learned lower Court has disallowed back benefits is that the appellants did not urge that they remained jobless after they were removed from service. Back benefits are allowed not as a punishment to the employer for wrongfully removing his employee from service but for the reason that due to the wrong and illegal orders of removal from service, the employee remained jobless. Where the employee got some other job elsewhere, it cannot be said that he was in reality available to serve his previous employer and that only for the existence of wrong and illegal orders or termination from service he could not perform his duties. It is, therefore, necessary that such an employee should assert that he since the time of his removal from service remained idle and did not earn anything.

3. It has been argued that onus is upon the employer to prove that the employee removed from service got employment elsewhere. No doubt ultimately such an onus is upon the employer but the employee should first assert that he remained jobless. The employer has no source of knowledge to find out if the employee removed from service got some job elsewhere whereas on the contrary the employee knows if he remained idle or got some employment. He should, therefore, assert that he remained jobless. The employer has no source of knowledge and can only get divulged real facts from the workers by subjecting to cross‑examination when they happen to assert that they remained jobless. Since the appellants did not make such an assertion, the learned lower Court was justified in not allowing back benefits.

4. As a result the appeals fail and are consequently dismissed in limine. A.E./99/Lb.P Appeals dismissed.