1. NASIM HASAN SHAH, J: --The above noted three appeals have been heard together as the question of law arising in all of them is common namely that when the services of a workman are found to have been terminated illegally is he entitled to the back benefits on re-instatement, unless it has been proved that he was engaged in some gainful employment during the period that he remained out of service?
2. The Division Bench of the Baluchistan High Court in National Bank of Pakistan and another v.
3. Muhammad Asif Ahmed and others (PLD 1985 Quetta 100) found that wk-re the Presiding Officer after assessing the evidence led by the parties came to the conclusion that the termination order was illegal and offended against law prescribed in this behalf and this finding was also confirmed by the Appellate Tribunal, the workman was entitled, as a natural corollary to the back benefits unless it could be shown that he was gainfully employed elsewhere during this period, the burden of proving which fact lay on the employer. The question has arisen whether the above dictum enunciates the correct law on the subject?
4. This Court has had occasion to deal with somewhat similar questions more than once. In the case of Dilkusha Enterprises Ltd. v. Abdul Rashid and others (1985 SCMR 1882) the question arose whether the onus to prove that he was not gainfully employed during the period that he (the workman) remained out of service rested on him and was to be discharged by him?. This Court in this case observed ---- "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 anything 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."
5. The same question arose in Qadeer Ahmad v. Punjab Labour Appellate Tribunal, Lahore and another (PLD 1990 SC 787) and was dealt with more elaborately. In this case, the Court observed that the back benefits did not necessarily follow from the order of the Court holding the order of dismissal from service as wrongful and went on to add: "The law laid down by this Court in Pakistan through General Manager, P.W.R. Lahore v. A.V. Issacs (PLD 1970 SC 415) relates to an unconditional setting aside of the order of dismissal and restoration to office of a functionary, a case where the functionary is kept out of office for no fault of his. Where a functionary is kept out of office partly or wholly on account of conduct attributable to him, then in that case the availing of the back benefits does not follow either under the law or principles laid down in Mrs. A.V. Issacs's case. So far as the Government servants are concerned, under section 17 of the Civil Servants Act, the authority setting the dismissal order has been authorised to pass such orders as regards back benefits as it considers fit. The proviso reads as under:--- Provided further that where a civil servant has, under an order which is later set aside, been dismissed or removed from service or reduced in rank, he shall, on the setting aside of such order, be entitled to such arrears of pay as the authority setting aside such order may determine."
6. In the case of workmen availing of section 25-A of the Industrial Relations Ordinance for redress of their grievances a similar power in snore general terms is possessed by the Authorities dealing with the grievances as the Labour Court has been authorised under clause (5) of section 25-A to "go into all the facts of the case and pass such orders as may be just and proper m the circumstances of the case.--- The Court then went on to observe---- "As regards the question of entitlement to back benefits, the established proposition is that where the order of dismissal or removal has been set aside unconditionally, found to be without jurisdiction and uncalled for necessarily the back benefits have to be paid. It has to be paid under the authority of the Tribunal or person setting aside the order of dismissal and if no such order is passed, then under the orders of the competent authority in the matter . . . . . . . . . . . . . .Mere setting aside of the order of dismissal irrespective of whether it is set aside conditionally or unconditionally would not, as claimed by the appellant, entitle the affected functionary to claim arrears of pay and back benefits."
7. We might add that what will be "just and proper" under clause (5) of section 25-A of the Industrial Relations Ordinance will depend on the question whether the order of removal or dismissal is found to be without jurisdiction, ' unwarranted and uncalled for or whether it has been actuated partly or wholly on account of the conduct attributable to him.. In the former case he would be entitled to avail of the back benefits while in the latter case, his claim in that regard may not be "just and proper".
8. However, two principles are now established under the judgments of this a Court:
(a) that back benefits do not automatically follow the order of re---instatement where the order of dismissal or removal has been set aside; and
(b) as regards the matter of onus of proof in cases where a workman is entitled to receive the back benefits it lies on the employer to show that the workman was not gainfully employed during the period the workman was deprived of service till the date of his re-instatement thereto; subject to the proviso that the workman has asserted at least orally, in the first instance, that he was not gainfully employed elsewhere. On his mere statement to this effect the onus falls oil the employer to show that he was so gainfully employed. The reason is that back benefits are to be paid to the workman not as a punishment to the employer for illegally removing him but to compensate him for his remaining jobless on account of being illegally removed from service.
9. We may now take up the above mentioned three appeals for determination in the light of the above noted principles.
10. CIVIL APPEAL N0.742 OF 1988 (Muhammad Bashir v. Chairman Pb.Labour Appellate Tribunal and 2 others)
11. In this case, the back benefits were allowed by the Labour Court to the workman but on appeal they were disallowed because the Appellate Tribunal found that the employees (including the appellant) were guilty of "contributory negligence", in that the water gauge was kept low continuously, knowing that it may result in damage to the boiler and this fact was not notified to the higher authorities nor they were moved to change the boiler or to reduce its load and this "contributory negligence" was held to have disentitled the workman from back benefits.
12. In our opinion, though the order of reinstatement was proper on the legal plane but as the conduct of the workman was not blameless and this contributed to the loss caused to the management which they were bound to serve loyally and devotedly, the refusal to pay back benefits was unexceptionable. As such an order to this effect was quite "just and proper" within the meaning of subsection (5) of section 25-A of the Industrial Relations Ordinance.
13. This appeal, therefore, is liable to be dismissed.
14. CIVIL APPEAL N0.498 OF 1989 (Muhammad Idrees v. Punjab Labour Appellate Tribunal, Lahore and 5 others)
15. In this case, the back benefits were refused on the ground that the workman involved did not state, even in his statement that he was not gainfully employed elsewhere during the relevant period.
16. Since no oral assertion was even made on the part of the workman that he had not been gainfully employed during the period of his severance from service, the Courts below were justified in not allowing back benefits to him.
17. This appeal too is liable to be dismissed.
18. CIVIL APPEAL N0.566 OF 1989 (Syed Arif Hussain Naqvi v. The Personnel and Administrative Manager etc.)
19. In this case, the learned Labour Court ordered re-instatement of the appellant in service but declined to pass any order for back benefits. Since there was no evidence nor even any oral assertion that the appellant had remained unemployed during the period in question, the Labour Court rightly declined to grant him the back benefits. However, before the Appellate Tribunal, the appellant did apply for permission to lead additional evidence to show that he was not gainfully employed during the period that he was out of service. According to him he had inadvertently omitted to mention this fact in his evidence and that he may be allowed to state and prove the same by way of additional evidence. The prayer for additional evidence was, however, rejected by the learned Appellate. Tribunal and the High Court has also upheld the order of the Appellate Tribunal on this point.
20. In our opinion, procedural and technical rules which unnecessarily impede the ascertainment of the exact and true position of the case should not be strictly enforced, especially in such proceedings. We were inclined, therefore, to set aside the order of the Appellate Tribunal as well as that of the High Court and send back the case to the Labour Court for allowing the appellant to assert that he had not been gainfully employed during the period that he was out of service.
21. However, on perusal of the order of the Labour Appellate Tribunal we found that on the merits the charge relating to the receipt of illegal gratification by the appellant had been established before the Inquiry Officer but the said "learned" officer arrived at a curious conclusion wherein he exonerated the appellant of that charge but convicted him of the other charge (of illegally removing polyester--- which charge had not been established). Therefore, the appellant obtained benefit of exoneration on the more serious charge of illegal gratification, of which he was really guilty, and ultimately also received the benefit of having been wrongly found guilty of the other charge, which was not really established. Therefore, we do not think that the re-instatement of the appellant can be deemed to be the reinstatement of a workman whose conduct was not partly responsible for his removal from service. He could, therefore, be refused arrears under clause (5) of section 25-A, as discussed above. This appeal too is, accordingly, liable to dismissal.
22. The overall conclusion is that all the three appeals fail and are dismissed hereby. The parties, however, will be left to bear their own costs.