' MAULVI ANWARUL HAQ, J.---The petitioner filed a grievance petition under section 25 of I.R.O., 1969, questioning order dated 31-8-1995 passed by the respondents dismissing him from service. The petition was allowed by the learned respondent No,2 on 30-11-2000. The respondents were directed to reinstate him but a prayer for back-benefits was disallowed. He filed an appeal which was heard along with a cross-appeal filed by the employers. Both the appeals were dismissed by the learned respondent No,1 vide judgment dated 28-11-2001. In this writ petition, prayer is being made that the orders refusing to grant back- benefits be declared to be without lawful authority.
2. Learned counsel for the petitioner contends that it was specifically stated in the grievance petition that he is jobless since date of his dismissal and had prayed for back-benefits. He has also led evidence accordingly whereas no rebuttal was led and as such the learned respondents No,1 and 2 had acted without any lawful authority while refusing the back-benefits. He relies on the case of Dilkusha Enterprises Ltd. v. Abdul Rashid and others (1985 SCM R 1882). The learned counsel for the respondents, on the other hand, states that the back-benefits have been correctly disallowed. He relies on the cases of Muhammad Bashir and others v. Chairman Punjab Labour Appellate Tribunal, Lahore and others (1991 SCM R 2087) General Manager, National Road "Telecommunication Corporation, Haripur, District Abbotabad v. Muhammad Aslam and 2 others (1992 SCM R 2169).
3. I have gone through the copies of the records, appended with this writ petition, with the assistance of the learned counsel for the parties. Now I find that the learned Labour Court has observed in its judgment dated 30-11-2000 in para-27 thereof that the petitioner has admitted in his statement that he had been working in Sindbad Hotel as General Manager. It is also noted that suggestion given to him that he had been doing private jobs of different nature has been denied by him. Then it is abruptly stated that in view of the past conduct, he is not entitled to any back- benefits.
4. Now the learned Appellate Tribunal has observed in para-10 of his judgment dated 28-11-2001 that since the learned trial Court has allowed his petition on a technical ground, he is not entitled to back-benefits.
5. Now I find that as per contents of the grievance petition noted in the judgment of the learned Labour Court, the petitioner duly pleaded that he has remained jobless and prayed for grant of back-benefits. Now he appeared as P.W.-1 (Annex: 'B') and he stated that he is jobless since time of his termination and that he be reinstated with back-benefits. I deem it appropriate to reproduce here the relevant portion of the cross-examination towards the close of his statement as P.W.1.
"It is incorrect that since the time of my dismissal I have been doing private jobs of different nature and supporting my family. Volunteered that I had worked only for two months in Sindbad Hotel as General Manager. It is incorrect that I have deposed falsely in the Court today."
6. Now I find that none of the two witnesses examined as RW. 1 and RW-2 have stated a word as to whether the petitioner was employed or doing any job during the relevant period."
7. I, therefore, do find that the learned Labour Court has misread the evidence on record. At the most, the only admission and that too volunteered by the petitioner was that he had worked for two months in a hotel.
8. Now coming to the judgment of the learned respondent No,1, as noted by me, the employer had already filed an appeal against the order of reinstatement made by the learned Labour Court. Now this part of the judgment of the learned Labour Court was dealt with by the learned Labour Appellate Tribunal in para-6 to para-8 of his judgment dated 28-11-2001. It appears that there were two charges against the petitioner; one of misappropriation of Rs,292 and the other of wilful absence. Regarding this latter charge, the learned Appellate Tribunal found that there is no evidence of wilful absence from duty. Regarding the said first charge, he has observed as follows in para-7 of his judgment at page 6 thereof:-- "In the absence of Jehan Khan, complainant the entire edifice of the appellant's case falls on the ground. He was the most material witness in this case to prove the charge of misappropriation. His non-summoning during the enquiry proceedings might have been taken to be a mere omission on the part of the appellant but the non-procuring of his attendance when a written request was made on behalf of the respondent/rival appellant (Muhammad Abid Khtar) leads to a patent adverse inference against the appellant-Bank. I am, therefore, in full agreement with the learned Labour Court that the charge of misappropriation against the respondent/rival appellant (Muhammad Abid Akhtar) stands not proved."
9. I find it absolutely difficult to reconcile the observations made by the learned Appellate Tribunal in para-10 of the judgment with the above noted observations. It was a case of non-production of material evidence and under the law, as observed by learned Appellate Tribunal himself, an adverse presumption was to be drawn for withholding of the said material evidence. There is no question of any technicality. This was a case of no-evidence. Similarly, no order of any conviction was produced to support the observation of the learned Labour Court as to past conduct of the petitioner when he had clearly stated that he had been acquitted in the earlier cases.
10. Now in the said case of Dilkusha Enterprises Ltd the Hon'ble Supreme Court of Pakistan laid down that where a worker has made an oral assertion that he was not gainfully employed elsewhere, it was for the employer to prove affirmatively that the worker was so employed. I have already stated above that there is not even an iota of evidence on record to the said effect.
11. In both the said judgment, being relied upon by the learned counsel for the respondents, it was observed by their Lordships that there was no allegation whatsoever by the employee that he was not employed.
12. The writ petition accordingly is allowed. Both the impugned orders inasmuch as the back- benefits have been refused to the petitioner are declared to be without lawful authority and as such illegal and void and resultantly the grievance petition filed by the petitioner shall be deemed to have been allowed with full back-benefits. No orders as to costs.