' The decision dated 22nd July, 1984 passed by the learned Presiding Officer, Punjab Labour Court No,1, Lahore has been challenged, whereby the respondent was directed to be re-instated in service with back benefits.
2. The respondent was a Junior Clerk but put to work as a Store Keeper. He was given five charge- sheets on the allegation of misappropriation of articles of the store for five different periods. He denied the charges, whereupon inquiries were held against him. One Inquiry Officer was Mr. Liaqat Ali, who held three inquiries in relation to three charge-sheets. This is not known if inquiries were held or not in relation to the remaining two charge-sheets. The case of the appellant is that the other Inquiry Officer was Mr. Javed Iqbal but neither inquiry reports nor proceedings of the said inquiries were produced. However, the proceedings and report of the inquiries held by Mr. Liaqat Ali are on the record. Mr. Liaqat All did not hold inquiries properly. He did not give opportunity of defence to the respondent. Only the statement of the respondent was recorded in every inquiry.
The respondent did not state that he did not want to examine any witness in defence. After the close of the prosecution evidence and recording the statement of the respondent, the inquiry should have been adjourned for the defence of the respondent. Of course, if the respondent had stated that he did not want to examine any witness in defence, the inquiry may have been closed after recording the statement of the respondent. Even otherwise too the charges were not brought home to the respondent. His plea right from the beginning was that he was not delivered charge of the stores when he was deputed to work there but no evidence was led to prove that the previous store-keeper had delivered the charge of the articles lying in the store. No charge report was produced. It was stated by the witness that certain articles that were not demanded by anybody and were not mentioned in TD-15 were found entered in TD-16, so that they being surplus could be removed at any time. If at all anything is shown in surplus, it does not mean that the same has been embezzled unless it is shown that they are missing from the stock. There is no evidence that the articles shown in excess in TD-16 were not found in the store. The abovementioned grounds are in addition to the ones for which the learned lower Court found that the dismissal order was not maintainable.
3. However, the respondent has been allowed back benefits wrongly. The respondent did not prove that he remained jobless during the period of his dismissal. Back benefits are not delivered as a punishment to the employer but for the reason that the worker remained jobless. If the worker fails to prove that he remained jobless, he cannot be allowed back benefits. The employer has no source to know if the person removed from service is earning anything or not. So, the onus is upon the worker to show that he remained jobless or if he got some work what he earned. The respondent did not state in his statement before the learned lower Court that he remained jobless.
4. As a result, the appeal is partly accepted and modifying the impugned decision of the learned lower Court, the respondent is disallowed back benefits.