1991 PLP 213 (PLC)

NASIR ASLAM ZAHID, J.

This judgment will dispose of connected Petitions Nos. D-664, 665, 066, 007 and 668 of 1984. 1n all these petitions, National Bank of Pakistan is the petitioner, respondent No. 1 is the Sindh Labour Appellate Tribunal and respondent No. 2 is the employee of the petitioner-Bank whose services had been terminated by the petitioner-Bank. The termination was challenged by the employees before the Labour Court. By identical orders, all dated 29-2-1984, the Labour Court held the termination of the employees to be illegal and ordered their reinstatement but granted only 50% back-benefits. The petitioner-Bank filed appeals before the learned Sindh Labour Appellate Tribunal against the reinstatement and the employees also filed appeals claiming full back-benefits. Appeals filed by the petitioner-Bank were dismissed by the Sindh Labour Appellate Tribunal. The Bank filed Constitutional petitions against such orders, but all such petitions were dismissed by a common judgment of this Court dated 26-1-1989 which is now reported in 1990 P L C

197. The Bank then filed a petition for Special Leave to Appeal before the Supreme Court of Pakistan but the petition was dismissed by order dated, 29-1-1990 of the Supreme Court. The orders of the Labour Court holding termination of the services of the employees as illegal have, therefore, attained finality.

2. As observed earlier, the employees had also filed appeals before the Sindh Labour Appellate Tribunal claiming full back-benefits and these appeals were disposed of by one common order dated 7-8-1984 of the Sindh Labour Appellate Tribunal. The Sindh Labour Appellate Tribunal accepted the appeals of all the employees and granted them full back-benefits. Being aggrieved by the grant of back-benefits, the present Constitution petitions have been filed by the National Bank of Pakistan. We have heard Mr. Hidayatullah A. Abbasi, learned counsel for the National Bank of Pakistan and Mr. M.L. Shahani, learned counsel appearing for the employees in all these petitions. Mr. M. Ilyas Khan appeared on behalf of the Sindh Labour Appellate Tribunal stating that the matter be decided on the basis of the arguments advanced on behalf of the Bank and the employees.

3. The only submission made on behalf of the National Bank of Pakistan by Mr. Hidayatullah A. Abbasi, Advocate is that, neither in the pleadings nor in the evidenc6, the employees have stated that they remained un-employed or jobless during the period starting from the day their services were terminated and he has relied upon the following dictum in the judgment of the Supreme Court of Pakistan in the case of Dilkusha Enterprises Ltd. v. Abdul Rashid and others reported 1985 S C M R 1882:-- . "but we are unable to agree with the broad proposition of Jaw 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 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:' Mr. M.L. Shahani, learned counsel for the employees, also relies on the same decision of the Supreme Court and has also placed reliance on several other decisions of the High Courts in petition.

4. We are unable to agree with the proposition advanced by the learned counsel for the petitioner Bank that as the employees had not stated in their pleadings or in the evidence that during the period in question they were jobless, their claims for back benefits were liable to be rejected, in view of the aforesaid observation of the Supreme Court in 1985 S C M R 1882. In our view, once the Labour Court or the Labour Appellate Tribunal comes to the conclusion and gives a finding that the termination of the services of an employee is unlawful the employee should, as a matter of course be granted back benefits unless the employer is able to establish by cogent evidence that the employee was gainfully employed elsewhere. In case it is established that the employee was gainfully employed, the Labour Court or Tribunal should then assess the amount earned by the employee in such gainful employment and set off such amount against the amounts due to him as back-benefits. The purpose of such exercise, therefore, should be to place the employee in a position as if his services had not been terminated. As observed earlier, Mr. Hidayatullah A. Abbasi had laid great stress on the observation of the Supreme Court in 1985 S C M R 1882 reproduced in the earlier part of this judgment. According to us, the Supreme Court by making the aforesaid observation negative the broad proposition of law that the initial burden to prove lies upon the worker to establish that he was not gainfully employed else where during the relevant period in order to succeed to the grant of back-benefits. The other part of the aforesaid observation, on which learned counsel had based his proposition, does not lay down that the initial burden in such cases is upon the employee. In the later part of the aforesaid passage, the Supreme Court had explained the reason for the proposition that the initial burden to prove lay upon the employer and not upon the employee.

5. In this case, it was submitted by Mr. M.L. Shahani that in the application under section 25-A of the I.R.O. filed by the employee, back benefits had also been claimed. Then, admittedly no evidence has been brought on the record by the National Bank of Pakistan to establish that the employees were gainfully employed elsewhere during the relevant period. We have already found that the initial burden in such case lay upon the employer and as this burden had not been discharged by National Bank of Pakistan the Sindh Labour Appellate Tribunal came to the correct conclusion that the employees were entitled to full back -benefits. We see no reason to interfere in the order of the Sindh Labour Appellate Tribunal.

6. Accordingly these petitions are dismissed but with no order as to costs. It is stated by Mr. M.L. Shahani, Advocate, that 50% of the back-benefits had been deposited by the National Bank of Pakistan in this Court. The amounts deposited by the Bank can be withdrawn by the private respondents (the employees). H.B.T./N-330/K Petitions dismissed.