M. TABASSUM AFT AB ALVI, J.---The supra titled appeal has been addressed under section 42 of the Azad Jammu and Kashmir Industrial Relations Ordinance, 1974, whereby a decision dated 20.04.2011, passed in Grievance Petition No,01/2006 by Labour Court Kotli, ordering reinstatement of respondent in service with full backs, benefits, has been challenged.
2. The precise facts leading to the instant appeal, briefly stated, are that respondent, herein, was serving as a Cashier in National Bank of Pakistan on regular basis and remained posted in different branches of the Bank. The aforesaid respondent was suspended from service by Zonal Chief National Bank of Pakistan, on account of some embezzlement, in Tatta Pani Branch, on 15.08.1994.
Latter on respondent was dismissed from service vide order dated 10.06.1996. An F.I.R. No,249/1994 dated 15.08.1994, was also lodged against respondent, however, ultimately he was acquitted from the charges by the Court of competent jurisdiction vide order dated 26.05.2005. The said respondent preferred a Grievance Petition before Labour Court Kotli, which after due process of law, was accepted and respondent was reinstated in service with full back benefits vide impugned decision dated 20.04.2014. Against the aforesaid impugned decision Writ Petition No,1033/2011 was filed by appellant on 18.05.2011, due to reason that Labour Appellate Tribunal, at the then time, was not constituted, however, keeping in view the stance taken in paragraph No,4 of petition, the same was treated as Labour Appeal vide order dated 25.06.2015.
3. Mr. Khalid Bashir Mughal, the learned counsel for appellant vehemently argued that Grievance Petition filed by respondent, herein, before Labour Court was hopelessly barred by time, therefore, the same was liable to be dismissed on this short score. The learned Advocate submitted that in any case, the respondent was not entitled to be restored in service with full back benefits and submitted for acceptance of appeal. The learned counsel in support of his last contention referred to and relied upon the following case law:-
1. General Manager, National Radio Telecommunication Corporation, Haripur, District Abbottabad v.
Muhammad Aslam and 2 others (1992 SCM R 2169); II. Messrs Mughal Works v. Mian Said Khizar and 16 others (2000 PLC 194).
III. case of General Manager, National Radio Telecommunication Corporation, Haripur, District Abbottabad, supra, it was held by the apex Court of Pakistan that respondent-employee failed to place on record to show that he was not doing any job after dismissal from service, therefore, was not entitled to back benefits in circumstances of the case.
In case of Messrs Mughal Works, ibid, it was held by the Labour Appellate Tribunal Sindh that employees who claimed back benefits did not state that they remained unemployed from date of their termination. It was observed that it was not believable that an ordinary labour would remain unemployed for about ten years. Employees, therefore, were held as not entitled to back benefits claimed by them.
4. Raja Gul Majeed Khan, the learned counsel for respondent defended the impugned decision of the Labour Court with full force. He argued that initially respondent filed a Grievance Petition before Labour Court in 1997, which was consigned to record due to availability of an alternate remedy of filing an appeal, as a civil servant, before the Federal Service Tribunal. The respondent then filed Appeal No,61(R)CE/2005 before the aforesaid Tribunal, which was awaiting disposal and meanwhile section 2-A of Federal Service Tribunal Act, 1973, was struck down by the apex Court of Pakistan on 27.06.2006, hence, appeal of respondent was abated by allowing to assail remedy before appropriate forum within three months vide Federal Service Tribunal's Notice dated 07.07.2006. Thereafter, respondent filed a Grievance Petition before Labour Court on 23.09.2006, within the period as stipulated by the aforesaid Notice of Federal Service Tribunal, hence, submitted for dismissal of appeal.
5. After hearing the learned counsel for parties, I have perused the contents of appeal and examined the record with utmost care.
6. A contemplate perusal of record reveals that respondent, herein, who was performing his duties as a Cashier in National Bank of Pakistan, on account of some embezzlement, was suspended from service by Zonal Chief National Bank vide order dated 15.08.1994. Thereafter, respondent was dismissed from service vide order dated 10.06.1996. Against the aforesaid order of dismissal respondent filed a Grievance Petition before Labour Court Kotli on 03.07.1997. The aforesaid Grievance Petition was decided by prevailing a preliminary objection that respondent was a civil servant, therefore, the Labour Court was having no jurisdiction to decide the same, vide its decision dated 29.09.2004. After the aforesaid decision respondent preferred an Appeal No,61(R)CE/2005 before Federal Service Tribunal, which was awaiting disposal, when section 2-A of Federal Service Tribunal Act, 1973, was struck down by the apex Court of Pakistan on 27.06.2006. The appeal, therefore, filed by respondent was abated by the Federal Service Tribunal vide notice dated 07.07.2006. The respondent was, however, allowed to file Grievance Petition before the Labour Court within three months. A perusal of record reveals that on the basis of the aforesaid Notice of Federal Service Tribunal dated 07.07.2006, respondent filed Grievance Petition before Labour Court Kotli on 23.09.2006, within the period as stipulated by the aforesaid Notice, hence, the appeal filed by respondent was within time. Even otherwise the point of limitation was neither raised in written statement filed by the appellant in the Court below nor any issue regarding communication of dismissal order was framed, therefore, I am not inclined to upset the impugned decision on the point of limitation.
7. The learned counsel for appellant besides the point of limitation only addressed arguments on issue No,4 that respondent was not entitled to be reinstated in service with full back benefits. A glance perusal of Grievance Petition reveals that respondent failed to insert a single word that he was not doing any job after his services were terminated by the Bank. Even in this regard neither any affidavit was sworn nor evidence was to be led that during about two decades period he remained unemployed. The back benefits are to be paid to the employee not as a punishment to the employer for illegal removal but to compensate him for his remaining jobless on account of being illegally removed from service. As respondent has not stated about his unemployment during dismissal period, therefore, appellant-employer was not obliged to lead any evidence in rebuttal. An identical point came under consideration before the apex court of Pakistan in case titled General Manager, National Radio Telecommunication Corporation, Haripur, District Abbottabad v. Muhammad Aslam and 2 others [1992 SCM R 2169], wherein at page 2174 of the report it was held as under:- "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 land down by this Court in Muhammad Bashir's case, the respondent is not entitled to back benefits. With this modification of the order of the High Court, this appeal is dismissed with no order as to costs."
A similar point was considered by the August Supreme Court of Pakistan in case titled Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others [1991 SCM R 2087]. At page 2090 of the precedent case, it was observed as follows:- "We might add that what will be "just and proper" under clause (5) of section 25-A of the Industrial Relations Ordinance will depend on the question whether the order of removal or dismissal is found to be without jurisdiction, unwarranted and uncalled for or whether it has been actuated partly or wholly on account of the conduct attributable to him. In the former case he would be entitled to avail of the back benefits while in the latter case, his claim in that regard may not be "just and proper".
However, two principles are now established under the judgment of this Court;
(a) that back benefits do not automatically follow the order of re-instatement 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 workmen is entitled to receive the back benefits it lies on the employer to show that the workmen was not gainfully employed during the period the workmen was deprived of service till the date of his re-instatement thereto; subject to the proviso that 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 removed front service."
8. The learned trial Court on the basis of pleadings of the parties framed as many as 08 issues.
However, the learned counsel for appellant addressed arguments only on the point of limitation and back benefits. As observed earlier that the point of limitation was not raised by the employer in written statement, therefore, no issue was framed on the point supra. As the learned counsel for parties restrained their arguments on issue No,4 regarding back service benefits granted to respondent by the Court below and no any other issue was pressed, therefore, finding on all other issues will be a futile exercise.
9. The nub of above discussion is that by partly accepting the instant appeal, the impugned decision dated 20.04.2011, recorded by Labour Court Kotli is modified to the extent of issue No,4 and consequently it is held that respondent shall not be entitled to back benefits. The appeal is partly accepted in the manner as indicated hereinabove with no order as to the costs.