' In this appeal the decision dated 17th April 1983 passed by the learned Presiding Officer Punjab Labour Court NO. 2, Lahore has been challenged, only to the extent that back benefits were not allowed to the appellant. The reason given is that the appellant did not state that he learned Presiding Officer, Punjab Labour Court No, 2, Lahore has been was not gainfully employed elsewhere during the period of his dismissal In this appeal the decision, dated 17th April, 1983 passed by the from service.
2. Learned counsel for the appellant has argued that back benefits should have been allowed as a matter of course. He has cited 1980 PLC 42, 1982 PLC 132. In the former ruling it has been held that enquiry into facts as to how much the employee earned while he stood terminated, is extraneous to the proceedings. With great respect I cannot agree. While considering the question of re- instatement, it is to be considered whether the employee is or is not entitled to back benefits. Only the employee concerned knows whether he had remained gainfully employed elsewhere and if so, how much he earned. So, if he claims back benefits, it is his duty to say on oath that he was not gainfully employed and if employed, where and how much he earned ? In the present case the appellant did not say anything in this respect in his statement before the learned lower Court. He even did not file any affidavit with the memo. Of appeal to that effect although he knew that for not making any statement in this respect he was disallowed back benefits. So, he has not proved his entitlement to the back benefits.
3. As a result., the appeal fails and is dismissed.
1984 CLC 1282 [Labour Appellate Tribunal Punjab] Present : Muhammad Abdul Ghafoor Khan Lodhi, Appellate Tribunal MUSLIM COMMERCIAL BANK LTD. versus MUHAMMAD SAEED Appeal No, JM-479 of 1983, decided on 24th April, 1984.
Industrial dispute- -- Misconduct-Absence from duty-Single act of absence for short time-Whether amounts to misconduct-For security guard (Bank employee)-Such absence is not simplicitor but amounts to neglect of duty and sufficient to constitute misconduct-Bank guard giving over time duty after close of normal duty hours-Continuous working for more than, eight hours, held, necessitates some break for meals and to attend call of nature and employer should make arrangements for at least laterines -No such arrangement made by Bank-Temporary absence of security guard to take meals and to attend to call of nature, in circumstances, held, not intentional-Order of Labour Court setting aside order of dismissal from service was alleged misconduct of absence from duty and awarding re-instatement Without back benefits, in circumstances, upheld by Appellate Tribunal- Industrial Relations Ordinanc'e (XXIII of 1969), Ss. 25-A & 38(3). [p. 1283]A & B I. R. Lodhi for Appellant.
M. K. Khan for Respondent.
Date of hearing : 18th April, 1984.
' This appeal is directed against the decision, dated 8th August, 1983 passed by the learned Presiding Officer, Punjab Labour Court No, 6, Rawalpindi, whereby the respondent was directed to be re-instated in service without back benefits.
2. The allegation against the respondent was that he had absented himself from duty at 6-00 p. m.
On 5th February, 1982 and on account of his absence thieves broke the outdoor, strong room and locks of almiras but could not succeed in removing anything. The plea of the respondent was that he had gone to take meals and to attend the call of nature.
3. It has been argued by the learned counsel for the appellant that since locks of outdoor, strong room and almiras were broken, it is evident that the respondent remained absent for a considerable period intentionally and not for the purpose of attending the call of nature. This is common ground that the respondent was to give over-time duty after the close of his normal duty hours. This being so, this is believable that he wanted to attend the call of nature. Continuous working for more than eight hours is indicative of the fact that the persons concerned require some break for meals and to attend the call of nature. The employer should make, arrangements for at least laterines. This is not the case of the appellant that there was any such arrangement near the A place of duty. The absence was, therefore, not intentional. However, this has been wrongly held by the learned lower Court that single incident was not sufficient. So far as members of security guards are concerned, their absence is not simplicitor but amounts to neglect of duty and single instance is sufficient to constitute misconduct.
4. The appeal is time-barred also. The date of decision of the learned lower Court is 8th August, 1983. Application for copy was given on 15th August, 1983. Copy was supplied on 16th August, 1983.
Computing one day spent in supplying copy, excluding a day for copy was supplied the last day for filing appeal was 9th September, 1983 but the appeal was presented on 10th September, 1983 and thus was time-barred.
5. As a result, the appeal is dismissed as time-barred as well as on merits.