This judgment shall also dispose of Writ Petition No,3202 of 1988 as common questions of law and facts arc involved in both of them.
2. In this Constitutional petition order dated 8-2-1988 passed by respondent No,2 accepting the application of respondents Nos, 3 to 8 under section 51 of the Industrial Relations Ordinance, 1969, and the order dated 13-4-1988 passed by respondent No,1 dismissing the appeal of the petitioner against the said order of respondent No,1 have been challenged.
3. Learned counsel for the petitioner argued that the evidence was produced before respondent No,2 to establish that the respondents Nos, 3 to 8 have been earning income through other sources during the period from their dismissal from service to their reinstatement therefore, in determining the back benefits to be granted to them, the said earnings were to be excluded.
4. The grievance highlighted through this writ petition is that the Courts below have not recorded any finding as to whether respondents Nos, 3 to 8 did earn any income during the said period.
5. Learned counsel for respondents Nos, 3 to 8 frankly conceded that under section 51 of the I.R.O. while granting back benefits the Courts are required to exclude the income if any, earned by the dismissed employee during the period of his dismissal i,e, from date of dismissal to reinstatement but argued that in fact the respondents Nos, 3 to 8 did not earn income during the said period. The petitioner raised a plea of fact that respondents Nos, 3 to 8 earned income during e period of their dismissal and produced evidence also. This was denied by the aid respondents. It was incumbent upon the respondents to have recorded express finding whether the said plea was established or not and if established as how much income was earned by them which was to be excluded from the back benefits to be granted to them. The learned Courts below thus have failed to exercise jurisdiction vested in them which has resulted in miscarriage of justice he impugned orders dated 8-2-1988 and 13-44988, therefore, suffer from an cute illegality due to which they have been rendered as without lawful authority. he writ petition is accepted. The orders dated 8-2-1988 and 13-44988 passed by respondents Nos, 2 and 1 respectively arc hereby quashed. The result is that the application moved by respondents Nos, 3 to 8 under section 51 of the I.R.O. for recovery of back benefits shall he deemed to be pending and it shall be decided fresh after recording finding whether the said respondents earned income during e period they remained out of service and if so as to how much and thereafter determine the quantum of back benefits to be granted to them.
The case shall be decided on the evidence already recorded. The case is remanded to respondent o.2 for this purpose. The parties are left to bear their own costs.