' The two appeals captioned above arise from the decision dated 18th January, 1983 passed by the learned Presiding Officer, Punjab Labour Court No, 5, Faisalabad, whereby Muhammad Shafi (hereinafter to be called as the respondent) was directed to be re-instated in service without back benefits. The P. R. T. B. (hereinafter to be described as the appellant) has challenged the direction of re-instatement, whereas the respondent has in his appeal claimed back benefits.
2. The respondent is a Head Security Guard. He was transferred to another depot. He is alleged to have gone to the Security Supervisor Khurshid Ahmad on 29th September, 1981 and asked him to sign his clearance certificate. The Security Supervisor told him that the Security Inspector would sign the certificate. The respondent, thereafter, is alleged to have misbehaved. The evidence produced in the enquiry is discrepant. None of the witnesses supported the version given by Mr. Khurshid. Ahmad, Security Supervisor. The Security Supervisor also deposed that the respondent threatened him to get him transferred saying that he was in a position to do so, and that many Inspectors had served there but were disgraced. None of the witnesses said so, which shows that either they were not present at that time of incident or the incident took place in a different manner. The solitary statement of the complainant could not be believed. It is thus doubtful that the respondent behaved in the manner as deposed by Mr. Khurshid Ahmed Security Supervisor,
3. It has been argued by the learned counsel for the appellant that the respondent being Head Security Guard is not a workman. No such plea was taken in the written statement, therefore, the respondent did not lead any evidence regarding his duties. A question of fact cannot be raised for the first time in appeal. Merely the designation is not sufficient to hold that the respondent is not a workman. Only on the basis of duties, it can he decided whether a particular employee is or is not covered by the definition of workman. Since such a plea was not raised in the written statement, now it is too late for the appellant to contend that the respondent is not a workman.
4. The learned lower Court has not given any reason for not passing any order with regard to back benefits. The peculiar circumstances for which back benefits have not been allowed have not been disclosed. When it has been found that the allegation of misconduct was not established the dismissal was illegal. The respondent remained out of service for not any fault of his but due to his illegal and uncalled for dismissal. So he was entitled to back benefits and the learned lower Court wrongly disallowed the same to him.
5. As a result, the appeal of the appellant is dismissed and accepting the cross-appeal of the respondent, he is allowed back benefits.