' The appeal captioned above challenges the decision, dated 10-1-1984 recorded by the learned Presiding Officer, Punjab Labour Court No.9, Multan, directing the re-instatement of the respondent in service with back benefits.
2. There were two allegations against the respondent. One was that during inspection he refused to show the record and the other was that he used unparliamentary language. The enquiry officer found that the record was shown by the respondent but found him guilty of the second charge. So far as the second charge is concerned, it is vague as the actual words used by the respondent were not disclosed in the charge-sheet. The respondent, therefore, was not made aware of what was the precise allegation against him which according to the employer, amounted to misconduct. In evidence it was deposed and the respondent admitted that he said that he was an employee and not death executor (Jallad). This he said about himself and not about the members of the inspection team. So those words did not amount to any misconduct. The respondent, therefore, was rightly directed to be re-instated in service.
3. So far as back benefits are concerned, the respondent did not state in his statement before the learned lower Court that he did not remain employed anywhere else during the period of his dismissal. It has been held in PLD 1970 SC 415 that the employer can claim set-off. Normally the defendant in the civil cases has to -Claim set- off as he knows what is due to him from the plaintiff but in labour cases the employer has no source of knowlege if his dismissed employees are earning something or not, whereas the employees know whether they have earned something. In case they have not earned anything luring the period they remained dismissed, they should say on oath that fact in order to make them entitled to back benefits. If they say so, the onus shifts upon the employer to prove that the person concerned has been earning his livelihood. Whatever has been earned, is to be deducted from the claim of back benefits. Since the respondent did not say that he did not earn anything, he is not entitled to back benefits.
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.