' JUSTICE (R) SAGHEER AHMED QADRI, CHAIRMAN.---The appellant-Muhammad Taufique Khan was compulsorily retired by the respondent-department vide order dated 04.12.2004 which he challenged twice before the learned Federal Service Tribunal and ultimately was asserting his grievance before the honorable Supreme Court of Pakistan in Civil Petition No,170/2010 when on 14.09.2010 the honorable Supreme Court of Pakistan passed the following judgment: "Petitioner was an employee in the Multan Electric Supply Company Limited and admittedly his service was not being regulated by statutory rules. That being so, the learned Service Tribunal had no jurisdiction to pass the impugned judgment in view of the law laid down by this Court in Civil Petitions Nos.1863/09, 2191/05,804-K/09, 1247/09, 12-K/10, 13-K/10 and 62-64/10. In the a fore-referred circumstances, this petition is converted into appeal and allowed and the impugned judgment is set-aside. It would be open for the petitioner to seek his remedy before an appropriate forum."
2. After passing the above observation by the honorable Supreme Court of Pakistan the appellant filed grievance petition before the learned Punjab Lab our Court No,9, Multan which was resisted by the respondent-department raising six preliminary objections about its maintainability on the ground of jurisdiction as well as that of limitation and on factual side, all the assertions made by the appellant were refuted.
3.Learned trial court after recording the evidence from both sides allowed the grievance petition vide impugned judgment dated 07.05.2011 reinstating him and also granted 50% back benefits for the period he remained out of service due to his compulsorily retirement vide order dated 04 .12.2.004 .
4.The appellant only challenged this judgment to the extent of grant of 50% back benefits as the order dated 04.12.2004 was declared illegal by the learned trial court and appellant remained jobless throughout the period, hence is entitled for complete back benefits for the period he remained jobless.
5. The respondent-department did not challenge the impugned judgment dated 07.05.2011. As only short question is involved if the appellant is entitled for full back benefits instead of 50% as allowed by the learned trial court. The arguments only to that extent were heard. Although learned counsel for the respondents tried to re-open the case on merits as well.
6. Learned counsel for the appellant referred the statement of the appellant while appearing as PW-1 wherein he specifically stated that throughout the period he remained out of job and did not perform any gainful job, hence was entitled for complete back benefits. Learned counsel for the appellant while relying on 1985 SCMR 1882 titled Dilkusha Enterprises Ltd. v. Abdul Rashid and others, 1977 PLC 162 titled Muhammad Arshad Khan v. J&P. Coats Pakistan Ltd., Karachi and 2 others, 2013 SCM R 752 titled Chairman, State Life Insurance Corporation of Pakistan, Karachi and others v.
Siddiq Akbar, 1993 PLC 57 (Karachi High Court) National Bank of Pakistan, Hyderabad v. Sindh Labour Appellate Tribunal and another and 1991 PLC 213 (Karachi High Court) titled National Bank of Pakistan v. The Sindh Labour Appellate Tribunal, Karachi and another, prayed that appeal be allowed and the judgment passed by the learned trial court only to the extent of 50% back benefits be modified into payment of full back benefits for the period the appellant remained jobless.
7. Learned counsel for the respondents opposed the arguments advanced by the learned counsel for the appellant on the ground that grievance petition was filed beyond the period of limitation, hence it was not maintainable but the learned trial court did not consider these aspects and without lawful justification allowed the grievance petition. As far as back benefits are concerned, learned counsel argued that the learned trial court rightly allowed 50% back benefits as the respondent-department through the statement of RW-1, it was brought on record that appellant did not remain jobless throughout the period as claimed. While relying on judgment passed in Writ Petition No, 615/2014 titled Chief Executive Officer MEPCO v. Punjab Labour Appellate Tribunal No-H, Multan etc. Passed by the learned Single Bench of honorable Lahore High Court, Multan Bench prayed that appeal be dismissed.
8.I have heard learned counsel for the parties and perused the records of the trial court minutely.
9.There is no denial to the fact that judgment passed by the learned trial court wherein the order dated 04.12.2004 whereby the appellant was compulsorily retired has been declared illegal and he was reinstated in service. In Para 10 of the judgment the learned trial court observed: "The upshot of the above discussion is that the petitioner was awarded major penalty of compulsorily retirement from service without any cogent and solid evidence against him. The officials/ officers who were equally involved in the commission of same irregularities were dealt with leniently in awarding them punishment, while the petitioner was compulsorily retired from his service without keeping in view his previous unblemished service record".
' If the above mentioned paragraph is seen, it was observed by the learned trial court that the appellant inspite of the unblemished service record was illegally retired compulsorily vide order under challenged in grievance petition. It is also admitted fact on record that the appellant in his statement claimed himself jobless throughout the period. The specific words used in his statement are hereby reproduced: {{URDU TEXT}} ' If the statement of Abdul Razzaq Kashif, Assistant Director Confidential MEPCO Headquarter, Multan as RW-1 appearing on behalf of the respondent department is seen, he in his statement recorded before the learned trial court stated: {{URDU TEXT}}
10. It has been held in so many judgments by the honorable Supreme Court of Pakistan and for reference 1985 SCM R 1882 titled Dilkusha Enterprises Ltd. v. Abdul Rashid and others is seen on its page 54, their lordships observed: "In connection with this contention it was argued by the learned counsel that the onus to prove that, he was not gainfully employed rests on the worker and in the circumstances of this case, therefore, the petitioner cannot be blamed for not leading evidence on this question. Reference was made to the case of Karachi Transport Corporation v. Jamil Beg (1981 PLC 862) and Bantva Memon, Khidmla Committee v. Naimullah (1981 PLC_178) but we are unable to agree with the broad proposition of law 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".
' Above all in a judgment passed by the honorable Supreme Court of Pakistan referred by the learned counsel for the appellant cited as 2013 SCM R 752 titled Chairman, State Life Insurance Corporation of Pakistan, Karachi and others v. Siddiq Akbar in Para 7 of the judgment at page 758, their lordships observed: "Once an employee is reinstated in service after his exoneration of the charges leveled against him, the period during which he remained either suspended or dismissal cannot be attributed as a fault on his part. His absence during this period was not voluntary on his part but it was due to order of the appellant that he was restrained not to attend his job/duty because on the basis of charge sheets, he was suspended and later on dismissed. At the moment, his exoneration from the charges would mean that he shall stand restored in service, as if he was never out of service of the appellant. If the absence of the respondent or non-attending the work was not volunteer act on the part of the respondent and was due to steps taken by the appellant, in no manner the service record of the respondent can be adversely affected nor he can be denied any benefit to which he was entitled, if he had not been suspended nor dismissed."
' As far as the judgment cited by the learned counsel for the respondents is concerned, it is not applicable on the facts and circumstances of the present case, as question involved in said judgment was different than the controversy present before this Court.
11. Resultant, as the learned trial court did not give any reason for grant of 50% back benefits, the impugned judgment is hereby set-aside to that extent and appellant is allowed full back benefits for the period he remained out of job due to illegal order for his compulsorily retirement till his reinstatement in the service. File be consigned to the records .Room after its due completion. The trial court's records be sent back immediately.