1988 PLP 608 (PLC(CS))

(b) Industrial Relations Ordinance (XXIII of 1969)‑‑ ‑‑‑Ss.25‑A & 38(3)‑‑Reinstatement‑‑Back benefits‑‑Petitioner workman stating before Labour Court "now a days I am without any job"‑‑Such statement, held, was very guarded and showed that workman was out of job at the time he came in witness‑box and not from date of impugned termination he remained jobless‑‑Petitioner workman, in circumstances, held, was not entitled to back benefits. M.S. Bokhari for Appellant. Ch. Fazal Elahi for Respondent Date of hearing: 14th April, 1986 This is an appeal challenging the decision dated 30‑6‑1986 recorded by the learned Presiding Officer, Punjab Labour Court No.7, Gujranwala, whereby the respondent was directed to be reinstated in service with all back benefits.

2. The respondent went on sick leave. A criminal case was got registered against him. He, therefore, made an application on 11‑3‑1984, copy of which is Exh.R‑1 for leave till the criminal case pending against him had been decided. The appellant terminated the services of the respondent on the ground that his post could not be kept vacant for an indefinite period.

3. The learned counsel for the appellant has not been able to show from the file that before terminating the services of the respondent his application for leave was rejected and that he was duly informed about it and asked for resuming duty. If the respondent had asked for the termination of his services, of course there would have been no need to issue notice to him, but since he had applied for leave and if the appellant was not inclined to grant leave, it should have informed the respondent about it and called upon him to resume duty. It has been argued that since the leave prayed for was not for a fixed period but for an indefinite period, therefore, the services of the respondent were rightly terminated. Leave could be granted at least for the period which was due to the respondent or for a longer period but if simply on the ground of making application for leave the services were to be terminated, he should have been informed. Simply because the respondent said that he be granted leave till the criminal case had been finally decided, his services could not be terminated and it pleaded that the post could not be kept vacant. The respondent had only applied for leave and otherwise was available to serve the respondent. The learned counsel for the appellant has admitted that the respondent had not been arrested and was not under detention at the time he had made application Exh.R‑

1. However, if the respondent had been behind the bars in the criminal case as an under‑trial prisoner, there could have been some scope to say that it was not known when he would be granted bail or would be acquitted and there could be some justification to say that his post could not be kept vacant. In these circumstances, the learned lower Court was justified in directing the reinstatement of the respondent in service.

4. However, back benefits have been wrongly allowed to the respondent. The respondent did not say that right from the date of termination of his services, he was jobless. He said, now‑a‑day I am without any job." This is a very guarded statement and shows that at the time the respondent came in the witness‑box he was out of job and not that right from the date of termination, he had remained B jobless. In these circumstances he was not entitled to back benefits.

5. As a result of the observations made above, the appeal is partly accepted and modifying the impugned decision of the learned lower Court, back benefits are disallowed to the respondent. A. E. /347/Lb.P Appeal partly accepted.