1994 PLP 2303 (SCMR)

Nemo for the Remaining Respondents. Date of hearing: 12th January, 1994, NASIM HASAN SHAH CJ. ‑‑‑Review is sought by this petition of this Court's judgment passed in GO Appeal No. 498 of 1989.

2. Relevant facts are that the petitioner had filed Civil Appeal No.498/89 against the order dated 13‑1‑1986 of Punjab Labour Court No. 5, Faisalabad, order dated 14‑7‑1986 of the Punjab Labour Appellate Tribunal, Lahore and order dated 19‑7‑1986 of the Lahore High Court, Lahore passed in Writ Petition No. 2939/1986 whereby back benefits had been refused to the petitioner on his reinstatement in service, as ordered by Punjab Labour Court No. 5, Faisalabad in which orders it was held that as the petitioner had not made a statement before the Court that he had remained jobless during the intervening period, he was not entitled to back benefits. The above‑noted appeal was heard alongwith connected appeals bearing No. 742/1988, 566/1989.

3. The learned counsel for the petitioner submits that he had argued before this Court that in accordance with the principle laid down in Qadir Ahmed v. Punjab Labour Appellate Tribunal, Lahore (PLD 1990 SC 787) the petitioner was entitled to the grant of back benefits as he was terminated without any stigma and was re‑instated unconditionally and there was no negligence or misconduct attributed to the petitioner.

4. As for the question of absence of statement as regards the question that the petitioner had not alleged that he had remained jobless during the period it was submitted that the petitioner had filed an application for additional evidence on this point and he had also filed an affidavit to this effect, but the learned Appellate Court had not taken these facts into consideration and had rejected the prayer for grant of back benefits on some wrong notions of law. Furthermore it had also not decided the application for additional evidence. It is further submitted that the above plea of the petitioner was, is fact, accepted by this Court but by some mistake the finding of the Court on this plea was incorporated in the judgment of the connected appeal (CA. No. 566 of 1989) and that this mistake had resulted in the petitioner not being allowed back benefits.

5. The submission of the learned counsel appears to be correct as we have indeed observed in Civil Appeal No. 566 of 1989‑ as follows:‑‑ "In this case, the learned Labour Court ordered reinstatement of the appellant in service but declined to pass any order for back benefits. Since there was no evidence nor even any oral assertion that the appellant had remained unemployed during the period in question, the Labour Court rightly declined to grant him the back benefits. However, before the Appellate Tribunal, the appellant did apply for permission to lead additional evidence to show that he was not gainfully employed during the period that he was out of service. According to him he had inadvertently omitted to mention this fact in his evidence and that he may be allowed to state and prove the same by way of additional evidence. The prayer for additional evidence was, however, rejected by the learned Appellate Tribunal and the High Court has also upheld the order of the Appellate Tribunal on this point: `In our opinion, procedural and technical rules which unnecessarily impede the ascertainment of the exact and true position of the case should not be strictly enforced, especially in such proceedings. We were inclined, therefore, to set aside the order of the Appellate Tribunal as well as that of the High Court and send back the case to the Labour Court for allowing the appellant to assert that he had not been gainfully employed during the period that he was out of service." These observations, as rightly pointed out by the learned counsel, related to the case of the present petitioner Muhammad Idrees, which was decided at the same time as the connected appeal, namely "Syed Arif Hussain Naqvi v. The Personnel and Administrative Manager etc." (CA. No. 566 of 1989) wherein these observations are recorded. Accordingly the observations made by this Court, while rejecting the praryer of the petitioner for back benefits namely: `Since no oral assertion was even made on the part of the workman that he had not been gainfully employed during the period of his severance from service, the Courts below were justified in not allowing back benefits to him is, therefore, an error patent on the face of the record because the assertion to this effect was indeed made before the Appellate Court and even an application for permission to adduce additional evidence on this point was also submitted.

6. We, therefore, accept this Review Petition and remand the case to the Punjab Labour Appellate Tribunal to allow the petitioner to lead evidence on this point. The respondents will be at liberty to rebut this assertion if it is false and fresh orders will, thereafter, be passed in accordance with law.

7. Order accordingly. A.A./M/2024/S Case remanded.