' The two appeals captioned above arise from the decision, dated 5-11-1983 recorded by the learned Presiding Officer, Punjab Labour Court No, 7, Gujranwala directing the re-instatement of Mian Khan (hereinafter to be called as the respondent) in service without back benefits. The respondent has in his appeal claimed back benefits, whereas Muslim Commercial Bank (hereinafter to be described as the appellant) has in its appeal challenged the direction of re- instatement of the respondent. Since both the appeals arise from the same decision, they are being disposed of together through this single judgment.
2. The allegations against the respondent were that he had received Rs,500, Rs,3,910 and Rs,1,000 for being deposited in accounts CD-565, CD-603 and C-99, respectively on 5th but entered the deposit of Rs,500 in the book on 7th and of the remaining amounts on 8th. 6th was a close-day.
The Manager P.W.1 supported the respondent by saying that on 7th at the closing time the respondent had told him that he had received Rs,3,910 and Rs,1,000 on 5th after closing hours but due to rush of work he had not been able to enter the amounts on 7th and that the money was available. So far as the amount of Rs,500 pertaining to CD-565 is concerned, it was not misappropriated as admittedly it was received on 5th after the closing time and was just on the following working day entered in the relevant record i,e, work sheet. So far as the remaining two amounts are concerned their misappropriation may be established but for the statement of the Manager. Since the amounts were available on 7th and due to rush of work the entries could not be made, the said amounts too were not misappropriated. The Manager P.W.1 says that he was satisfied that the amounts had not been mis- appropriated. In these circumstances the respondent was rightly directed by the learned lower Court to be re-instated in service and the appeal of the appellant has no force.
3. So far as back benefits are concerned, the learned lower Court has not recorded any reason for not allowing the same. However, the respondent should have shown that he remained unemployed during the period of his dismissal. If he had earned something, he had to account for it enabling the appellant to claim set off. Needless to say that only the respondent knew if he was employed elsewhere or not and the appellant had no source to know this fact. Since the respondent did not say that he remained unemployed, he is not entitled to back benefits.
4. It has been argued by the learned counsel for the appellant that the Wage Commission Award is not an Award as defined in the Industrial Relations Ordinance, 1969, so on the basis of such an Award an application under section 25-A did not lie and the Court had no jurisdiction. Section 38-D is a complete answer to the objection. It says that all the provisions of the Industrial Relations Ordinance, 1969 shall apply to the Award of the Commission. Thus, section 25-A is applicable and the learned lower Court had jurisdiction.
5. The other point argued is that a dismissed person not being a workman, the respondent could not apply under section 25-A. This argument too is without force. The words "is employed" do not mean that a person applying under section 25-A should be in service at the time of making application. They mean that he should have been in service at the time the order adversely affecting him was passed. Not only in section 2(xxviii) of the Industrial Relations Ordinance, 1969 but in all other enactments wherein worker or an employee or a servant has been defined, present tense has been used. If the words 'is employed' are interpreted otherwise, then it would mean that a dismissed or terminated person cannot ask for re-instatement. If this had been the intention of law, the special laws would not have been promulgated and special tribunals would not have been constituted, for the remedy of claiming damages was already available under the ordinary civil law. I, therefore, overrule the objection.
6. As a result, both the appeals are without force and are hereby dismissed.