' Briefly stated the facts are that the services of the appellant who was employed as a Junior Commercial Assistant a permanent worker with the respondent establishment were terminated with effect from 1st February, 1982, by order, dated 31st January, 1982. He served a grievance notice on the respondent establishment and his grievance having not been redressed he filed a grievance application before the learned Labour Court which allowed his application with regard to his re-instatement but refused awarding back benefits. The appellant aggrieved by the order of refusal of award of the back benefits has come up in this appeal.
2. I have heard the learned counsel appearing on behalf of the parties as Mr. Fasahat Hussain Rizvi for the appellant and Mr. Choudhry Rasheed Ahmed for the respondent and have also perused the relevant evidence available on the record. The learned counsel for the appellant has raised two- fold contentions ; firstly, that since the learned Labour Court held the order of termination of service of the appellant as illegal and improper, it followed as a natural corollary that the order of withholding of the salary or incidental benefits was also improper and illegal ; and secondly, that the burden of proof that the appellant was not entitled to the back benefits as a result of his having been gainfully imployed elsewhere during the intervening period lay on the respondent establishment to prove affirmatively that he was so employed and, therefore, was not entitled to back benefits. Mr. Choudhry Rasheed Ahmed the learned counsel for the respondent on the other hand has assailed the order of the learned Labour Court with regard to the re-instatement of the appellant as not being proper and just and has also contended that the initial burden of proof that the appellant was entitled to back benefits lay on the appellant rather than on the respondent establishment.
3. As regards the first contention, it would suffice to say that since the respondent has not challenged the order of reinstatement of the appellant in appeal, the order of the learned Labour Court to the extent reached its finality and the order to that cannot be assailed in this appeal filed by the appellant worker. There would, therefore, be no doubt that as a natural 4 corollary the order of withholding of back benefits in circumstances was neither proper nor legal, more so when the learned Labour Court has not assigned any reason for withholding such back benefits. Reliance in that respect has been placed on the following observations, though in a different context, in the unreported judgment of the Sind & Baluchistan High Court at Karachi, dated 2nd September, 1971, in M. A. No, 1/67 of the learned Judge Dorab Patel, J. As he then was :- "Mr. Memon, however, relied on the fact that the workman concerned had found other jobs, and that eight years had passed since their dismissal. I am not impressed by these arguments at all.
What choice has a workman but to seek employment when he is illegally dismissed. But if the fact that he has found employment is held to be a bar to his reinstatement with the employer who had illegally dismissed him, then it will put a premium on illegality. Similarly, the fact that eight years have passed since the dismissal of the workmen concerned is immaterial because otherwise it would put a premium on frivolous appeals."
' The learned counsel for the appellant has also placed reliance on the case of Niaz Ali v. Punjab Urban Transport Authority, Lahore and 3 others wherein the learned Judge of the Lahore High Court placing reliance on a number of authorities including the one of Supreme Court of Pakistan reported in PLD 1970 SC 115, came to the same conclusion to the effect that, once it was held that the termination of service was wrong or unsustainable, it followed as a natural corollary that withholding of a salary or incidental benefits was also wrongful or without lawful authority.
Accordingly, I find no force in the contention raised on behalf of the respondent establishment as they cannot assail the order of the learnedlg Labour Court with regard to reinstatement of the appellant in this appeal ' and since that order has reached its finality, the natural corollary of that order which was adjudged as legal and proper would be that the order of withholding of the back benefits could not have been legally passed.
4. As regards the second contention raised on behalf of the appellant, my attention has been invited to the recent 'Authority of the Supreme Court of Pakistan in an unreported judgment passed on 23rd October, 1983, in C. P. S. L. A. No, K-254 of 1983, wherein the learned Judges of the Supreme Court did not approve the view that the initial burden to prove lies on the worker to establish that he was not gainfully employed elsewhere during the relevant period in order to succeed to the grant of the back benefits, and observed that this being negative fact the worker can hardly establish any thing substantial evidence except his oral assertion that he was not gainfull employed elsewhere and then it would be for the employer to prove affir- matively that he was so employed. In the instant case, I find is that the appellant worker in his grievance notice, grievance application and the affidavit in evidence expressly asserted that in view of his order of termination of services being illegal and improper, he was not only entitled to reinstate- C ment but also to consequential benefits. On the other hand, there was no suggestion on behalf of the respondent establishment to him in the cross-examination that he was gainfully employed elsewhere during the intervenin period and, therefore, was not entitled to back benefits. In my view the appellant asserted his claim throughout, right up from the beginning to the end to the consequential benefits and the burden heavily lay on the respondent to prove affirmatively that he was gainfully employed elsewhere. In view of this evidence on the record, there is no doubt that the respondents failed to discharge their burden which lay heavily on them to prove affirmatively that the appellant was gainfully employed elsewhere. The appellant was admittedly out of employment for about 16 months due to an illegal order of termination of services and that there is no evidence on the record that during that period he was gainfully employed elsewhere. The learned counsel for the1 respondent has taken exception to the decision above-mentioned of the Supreme Court on the ground that the case therein, related to the Junior Labour Court whereof the relevant provisions in section 36-B (iv) of the I. R. O. Had been repealed by Ordinance XXVI of 1975, dated 23rd December, 1975. The answer to his plea is available in the Division Bench Judgment of the Sind High Court in the case of Textile Corporation of Pakistan v. Sind Labour Appellate Tribunal and another wherein the learned Judges observed "it is true that these decisions are based on Payment of Wages Act or in cases of wrongful removal from service but the general principles are of wide application.
Therefore, repeal of provisions relating to Junior Labour Courts will not have the effect of depriving the workers in cases of wrongful dismissal of claiming the benefits for the period they were wrongfully kept out of work. Accordingly, it is very clear to me that the respondent establishment have failed to discharge the burden of proof to show that the appellant was gainfully employed elsewhere during the intervening period of about 16 months and, therefore, would not be entitled to back benefits. I would, therefore, find no force in any of the contentions," raised on behalf of the respondent establishment, and would find the appellant entitled to back benefits.
' The result is that the order of the learned Labour Court to the extent of refusal of award of back benefits to the appellant the appeal is allowed accordingly. PLD 1983 Lah. 661 1983 PLC 721