2011 SCMR 1082 (PLP)

JAWWAD S. KHAWAJA, J.

The petitioner namely, Administrator Zila Council, Sahiwal impugns the judgment of the High Court dated 6-8-2001 whereby C.R. No.741-D of 2001 has been dismissed. The facts of the case are straightforward. The dispute which is now outstanding between the parties is confined to the amount claimed by the respondent-plaintiff on account of back benefits. Leave was granted to the petitioner-defendant in the following terms:-- "Leave to appeal is allowed to examine the submission as to whether in the absence of specific assertion of having remained un-employed; the respondent was entitled to the back benefits."

2. It is clear from the testimony of the respondent who appeared as P.W. and also the contents of his plaint that no assertion was made by him that he had remained unemployed between the date of his termination from service and the date of his reinstatement. In the case titled General Manager NRT v. Muhammad Aslam (1992 SCMR 2169) it has been held that such assertion and proof thereof is necessary for a plaintiff to succeed in obtaining back benefits. The relevant portion of the cited case reads as under:-- "The matter will not end here because further question is to be examined whether the respondent was engaged in some gainful employment during this period. This Court in 1991 SCMR 2087 (Muhammad Bashir and others v. Chairman Punjab Labour Appellate Tribunal, Lahore, and others) has observed as under:-- "However, following two principles are established; (a) that back benefits do not automatically follow the order of reinstatement where the order of dismissal or removal has been set aside; and (b) as regards the matter of onus of proof in cases where a workman 'is entitled to received the back benefits it lies on the employer to show that the workman was not gainfully employed during the period of workman was deprived of service till the date of his reinstatement thereto, subject to the proviso that the workman has asserted at least orally,. in the first instance, that he was (not) gainfully employed elsewhere. On his mere statement to this effect the onus falls on the-employer to show that he was so gainfully employed. The reason is that back benefits are to be paid to the workman not as a punishment to the employer for illegally removing him but to compensate him for his remaining jobless on account of being illegally removing him but to compensate him for his remaining jobless on account of being illegally removed from service".

13. There is nothing on record to show that the respondent was not doing any job after his services were terminated. As the respondent has not said a word about it, the appellant was not obliged to lead any evidence in rebuttal. Keeping in view the above facts and principle laid down by this Court in Muhammad Bashir's case, the respondent is not entitled to back benefits. With this modification (in) the order of the High Court, this appeal is dismissed with no order as to costs." The above aspects of the case have not been considered by the learned Judge in Chambers in the High Court. In the impugned judgment it has merely been observed that the trial and appellate Courts had concurrently held that the respondent was dismissed without a regular inquiry. The issue in respect of back benefits was not examined by the High Court nor was any issue framed in respect of the respondent's entitlement to back benefits. It is clear that no such issue arose because no assertion was made in the plaint that the respondent had remained unemployed while he was out of service. The learned counsel for the respondent submitted that the prayer in the plaint could be construed as raising such plea. This contention is misconceived. The prayer merely seeks back benefits in a cursory mariner. There is no averment in the plaint which would have put the petitioner-defendant on notice that it had to meet a case for payment of back benefits on account of the petitioner's alleged unemployment during the period he remained out of service.

3. In the foregoing circumstances, we find merit in this appeal which is, therefore, partially allowed. As a result, the impugned judgments and decrees are modified and it is held that the respondent is not entitled to back benefits. S.A.K./A-16/SC Appeal partly accepted.