' ALI SAIN DINO METLO, MEMBER.--- The appellant has challenged order dated 24th March, 2008 of the Sindh Labour Court No.VI, Hyderabad, reinstating the respondent, a Commercial Assistant, in service with back benefits.
2. Briefly, the facts are that on 12th July, 2002, the appellant compulsorily retired the respondent due to his absence from duty from 27th December 2000 to 22nd April 2002 and treated his absence as leave A without pay. The respondent challenged his compulsory retirement in appeal before the Federal Service Tribunal.
3. On 19th January, 2004, while respondent's appeal was pending, the appellant gave him fresh show cause notice alleging that he had received an amount of Rs.20,000/- from one Shahzad Ali for getting him appointed as lineman and on 17th February, 2004 the appellant dismissed him from service. The respondent challenged his dismissal also in appeal before the Federal Service Tribunal.
4. In view of the judgment of the Supreme Court in Mubeenusalam's case (PLD 2006 SC 602), respondent's both appeals abated and he filed applications bearing numbers 290 and 291 of 2006 before the Labour Court and the latter, under its order dated 24th March, 2008, reinstated the respondent in service with back benefits holding that his compulsory retirement and subsequent dismissal were unlawful. Before retiring or dismissing the respondent from service, the appellant did not conduct inquiry about the allegations against him. His absence was due to his illness and his applications for leave, supported by medical evidence, were not decided by the appellant. It was not disclosed when he received the alleged amount from Shahzad Ali, nor the latter was called to give evidence.
5. The appellant filed two appeals bearing numbers 378 and 379 of 2010, old numbers 20 and 21 of 2008, contending that respondent's compulsory retirement and subsequent dismissal from service were lawful. However, in compliance with the order of the Labour Court, the appellant reinstated the respondent in service and on superannuation he retired on 14th January 2014.
6. On 27th August 2015, learned counsel for the appellant did not press appeal No. 379 of 2010, old No. 21 of 2008, and it was dismissed as not pressed on the same day.
7. Learned counsel for the appellant pressed this appeal only to the extent of back benefits.
According to him, the respondent had failed to prove that he was not gainfully employed during the period of his removal from service. The argument is without force.
8. In its written reply, the appellant did not deny the claim of the respondent that he was not gainfully employed during the period of his removal from service. His deposition, in his affidavit in evidence, that he was not gainfully employed during the period of his removal from service was not challenged in cross-examination, and in his affidavit in evidence the officer of the appellant did not claim that the respondent was gainfully employed anywhere. The statement of the respondent, not challenged or rebutted by the appellant, is sufficient to prove the negative fact.
9. It will be relevant to refer to the offer made by the respondent, through his advocate, on 27th August 2015. He stated that the respondent was seriously ill undergoing the process of dialysis regularly and wanted to avoid further litigation and would be satisfied if the appellant agreed to pay him 50% back benefits. After due deliberations, the appellant rejected the offer on 30th September 2015.
10. Fruits of litigation are not always 'sweet. The usual delays and other imperfections make them sour and sometimes bitter. If a person wants to avoid the hassle of litigation and makes an offer to forgo a part of his claim and the offer is not accepted by the opposite party, it shall not be taken as an unconditional waiver so as to deprive him of his due claim. The offer made by the appellate under the compelling circumstances was not accepted by the respondent. It cannot be made a ground for depriving him of his just claim already granted to him by the Labour Court.
11.In such circumstances, no exception can be taken to the order of the Labour Court granting full back benefits to the respondent. Accordingly, the appeal, being meritless, is dismissed.