JUDGMENTMALIK MUHAMMAD QAYYUM, J.- This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, arises out of a labour dispute. Zafarullah Khan Bajwa petitioner was working as Laboratory Incharge in Doaba Rice Mills Ltd., Mubarikpur, when on 17th October, 1979, his services were terminated by the respondent on the ground that he failed to comply with the order of transfer. This order was challenged by the petitioner by filing an application under Section 25-A of the Industrial Relations Ordinance, 1969, on 22nd January, 198l) after serving the requisite grievance notice before Punjab Labour Court No.1. The proceedings, remained pending in one Court or another and it was only after about five years of the institution of the petition that the matter was decided by the Labour court on 27th October, 1984. By this order, termination of the services of the petitioner was held to be illegal and he was ordered to be re-instated into service but without back benefits. Two appeals, oneby the petitioner and the other by respondent No.3 were filed against this decision. The grievance of the petitioner was that he should have been allowed back benefits by respondent No.1 while respondent No.3 felt aggrieved by the direction to re-instate the petitioner. Both these appeals, were dismissed on 25th May, 1985 by the Punjab Labour Appellate Tribunal. Respondent No.3 felt satisfied with the order and did not challenge any further but the petitioner has filed the present constitutional petition praying that as his services were illegally terminated, he be allowed back benefits.
2. The petitioner has appeared in person and has argued his case. He Stated that it was clear from the record that during the period of his termination, he was not employed any where but was persuing his cases in person before different Courts. He referred to his statement recorded by the Labour Court as PW 1 in which he had staled that he may be re-instated with back benefits. It was pointed out that this part of the testimony was not subject to cross examination nor did the respondents lead any evidence to show that the petitioner had been working anywhere else for gains. Reliance was placed by him on the judgment of the Baluchistan High Court in National Bank of Pakistan and another Vs Muhammad Asif Ahmed and 2 others (PLD 1985 Quetta I0O) as also judgment of a learned Single Judge in Writ Petition No. 5023/83 decided on 3rd March, 1984. In the last he relied upon the authority of the Supreme Court in Shamas Saeed Ahmad Khan Vs. Shafa Uliah and another (1985 SCM R 1822).3. Mr. Asadullah Siddiqui, learned counsel appearing on behalf of respondent No.3, on the other hand, contended that initially it was for the petitioner to show that he had not been in gainful employment during his termination and he should have at least asserted it to be so in his statement before' the Labour Court. If it was argued in the absence of any assertion, the onus never shifted to employer and as such the petition fail on account of lack of proof. The learned counsel also relied upon the same judgment of the Supreme Court, which was referred no by the petitioner, in addition to a Division Bench judgment of this Court in I.C.A. No. 2939/86.
4. The reasons which prevailed with the Punjab Labour Appellate Tribunal for not allowing back benefits to petitioner were to fold:-
(i) That no evidence was produced by the petitioner to show that he was not in service or in any employment during the period, his services remained terminated, and
(ii) Secondly, that the respondent had succeeded in his petition under Section 25-A of the Industrial Relations Ordinance, 1969 on a technical ground.
5. Taking up the second reason first, suffice it to say that the termination in this case was held by the Punjab Labour Court as also by Tribunal to be illegal in view of the pendency of an industrial dispute. There was manifest violation of Section 47 of the Industrial Relations Ordinance, 1969 and, therefore, Punjab Labour Appellate Tribunal was clearly unjustified in treating the success of the petitioner to be only on technical ground. There was, in fact, no jurisdiction vested in respondent No.3 to have proceeded to terminate the services of the petitioner in view of the clear mandate of law and by doing so, it certainly exceeded its powers.
6. Reverting to the other aspects of the case, the Labour Appellate Tribunal itself held that the termination of the services of the petitioner to be Illegal and as a natural corollery it should have allowed the back benefits to the petitioner, who remained out of service without any fault on his part. These benefits could only be refused if it could be shown that the petitioner had been gainfully employed elsewhere during this period of the. In his statement, as P.W.1, the petitioner has asserted that he was entitled to be re-instated with back benefits. This part of the testimony was not challenged in cross examination. As the petitioner had in categorically terms claimed in his statement on oath, that he was entitled to receive back benefits, an obligation was certainly cast upon respondent No.3 to rebut this assertion. The respondent No.2, however, failed to produce any evidence whatsoever in this behalf.
7. Learned counsel for the petitioner, however, submitted that initially onus was on the respondent NO.3 to show that he had not been employed during this period of the. Even if it be so, this onus was sufficiently discharged by respondent No.3 who while appearing as P.W.1 claimed that he was entitled to be re-instated with back benefits. To show that he has not been working or gainfully employed during the period of his termination is to ask a workman to prove a negative fact. In such like cases, an assertion by the person concerned is by itself sufficient to shift the onus of proof to the employer. This view find full support from the judgment of the Baluchistan High Court in National Bank of Pakistan and another Vs. Muhammad Asif Ahmed and 2 others (PLD 1985 Quetta I0O), wherein it was observed that:- "8. In the present case the order which was brought before the Labour Appellate Tribunal for consideration had to elements. One directing re-instatement if the order of termination was illegal and other payment of back wages. The respondent No.1 had been asserting from the very beginning that he was entitled to back benefits and a prayer to that effect was made in the grievance petition made by him under Section 25-A of the I.R.O, before the Presiding Officer Labour.
The Presiding Officer after asserting the evidence led by the parties had come to the conclusion that the termination order was illegal and offended against law prescribed in this behalf and this was confirmed by the appellate tribunal to. As a natural corrolary the workman was entitled to back benefits unless it could be shown that he has been gainfully employed elsewhere during this period, the burden of which lay on the employer. For this reason , the order of withholding back' benefit was not only improper but illegal and without jurisdiction".
Similar view was taken by this Court in an unreported judgment relied upon by the learned counsel for the petitioner in the case of Khadim Hussain Vs Climax Writ Petition No. 5023/83 decided on 3rd March, 1984.
8. Both the parties have relied upon the authority of the Supreme Court in Shamas Saeed Ahmad Khan Vs Shafa Ullah and another (1985 SCM R 1822). A close reading thereof, however, shows that if supports the case of respondent No.3 rather than of the petitioner. The dispute before the august Supreme Court was whether the workman could be deprived of the back benefits without the proof that he had been gainfully employed. It was observed:- "In connection with this contention it was argued by the learned counsel that the onus to prove that he was not gainfully employed rests on the worker and in the circumstances of this case, therefore, the petitioner cannot be blamed for not leading evidence on this question. Reference was made to the case of Karachi Transport Corporation V. Jamil Beg (1981 PLC 862) and Banlva Memon, Khlmla Committee V. Nalmullah (1981 PLC 178) but we arc 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 established 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".
As regard the decision in the I.C.A, relied upon by the learned counsel for the petitioner, it is distinguishable on facts. As already observed, respondent No.3 while appearing as his own witness, had categorically staled that he was entitled to be re-instated with back benefits. It is also to be noted that the attention of the Division Bench was no' drawn to the rule laid down by the Supreme Court in Shamas Saeed Ahmad Khan's case supra.
9. Another fact to which reference must be made is that the earlier when the petitioner was transferred, he had challenged the order before Punjab Labour Court No.111 and had also applied for the interim relief, which was, however, refused by the Labour Court, which observed:- "In this case, if the petitioner succeeds, he would be re-instated in his old post with back benefits,if any".It would, therefore, be clearly unfair and unjust to deny benefits to the petitioner.
10. For the reasons aforesaid, this petition is accepted and the respondent No.3 is directed to pay the back benefits to the petitioner, from a period of one month from today. There shall be no orders as to costs.