The petitioner through this Constitutional petition has impugned the order dated 23-9-1985 passed by respondent No. 1.
2. The relevant facts are that the petitioner was an employee of respondent No. 2. He was charge- sheeted and suspended on 10-2-1983. The proceedings ultimately ended in order of dismissal from service. The same is dated 10-3-1983. The petitioner assailed this order through an application under section 25-A of the Industrial Relations Ordinance. Respondent No. 2 contested this petition.
The same was, however, ultimately accepted by Punjab Labour Court No. 1, Faisalabad vide order dated 26-3-1985. The petitioner was ordered to be reinstated with full benefits. The respondent No. 2 assailed this order through an appeal before respondent No. 1, who partially accepted the same vide judgment dated 23-9-1985. The result was that the order of reinstatement remained intact but the order as to the hack benefits was set aside. It is this part of the order which has been impugned through this petition.
3. I have heard the learned counsel for the parties. The learned counsel for the petitioner has argued that respondent No. 1 illegally and without any basis set aside the order of Labour Court as to the back benefits for the period from 10-2-1983 to 26-3-1985. In this behalf the learned counsel has referred to para. 3 of order of respondent No. 1. The relevant portion reads as under:-- "However, the respondent is not entitled to back benefits, as he did not assert that he after having been dismissed remained jobless."
It is argued that past benefits automatically follow the order of reinstatement especially when it is on merits and not on technical grounds. The learned counsel in support of the contention has referred to the case of National Bank of Pakistan and another v. Muhammad Asif and 2 others PLD 1985 Quetta 100.
4. On the other hand the learned counsel for respondent No. 2 has argued that the petitioner did not lead any evidence to prove that during the relevant period he remained jobless and even his own statement is silent on this point. The learned counsel in this behalf has referred to the cases of Dilkusha Enterprises Ltd. v. Abdul Rashid and others 1985 SCMR 1882 and Din Muhammad Jaffary v. Managing Director 1986 PLC 1166.
5. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the precedent cases. The petitioner had claimed reinstatement with back benefits in the petition under section 25-A of the Industrial Relations Ordinance but there was not a word about this claim in his own statement and P.W. 1 is also silent on this point. Therefore, there was no question of rebuttal by respondent No. 2. Before the Hon'ble Supreme Court in the case of Dilkusha Enterprises Ltd., the argument on behalf of the employer was that onus to prove that he was not gainfully employed rests on the worker. This argument was repelled with the following observations:-- "But we are unable to agree with the broad proposition of law that the initial burden to prove lies upon the worker to establish that he was not gainfully employed elsewhere during the relevant period in order to succeed to the grant of back benefits, for, this being a negative fact the worker can hardly establish it with any substantial evidence except his oral assertion that he was not gainfully employed elsewhere and then it would be for the employer to prove affirmatively that he was so employed." It is clear from the above observations that minimum requirement is that the petitioner was to make oral assertion that he was not gainfully employed elsewhere during the relevant period. This is not all. In the present case the petitioner has not asserted in his statement that he is entitled to back benefits. Mere mention of claim in the petition does not amount to proof of the claim.
Pleading of a fact is one thing while proving it is a distinct and independent matter. I am fortified in my view by the Division Bench judgment in the case of Din Muhammad Jaffary, where the learned Judges held as under:- - "Even from this observation, it is quite evident that the petitioner was at least to make an oral assertion that he was not gainfully employed elsewhere during the relevant period."
6. There is nothing wrong with the judgment of respondent No. 1. The same is in accordance with the evidence on record. The petitioner has failed to make out a case for interference in writ jurisdiction. The case of National Bank of Pakistan and another is not relevant.
7. The result is that there is no merit in the petition and the same is dismissed. However, there is no order as to costs.