DECISION ' All these appeals were disposed of by this Tribunal vide separate orders in the months of January and February 1986. In all these appeals the orders of the learned Labour Court reinstating the respondents were maintained whereas the orders of Labour Court allowing back benefits were set aside. The respondents challenged the orders of this Tribunal disallowing them back benefits in the High Court in Constitution Petitions Nos, 419, 421, 538 and 539 of 1987. All the five petitions were disposed of by the learned Division Bench of Sindh High Court by single order dated 31-1-1991 whereby appeals were remanded back to this Tribunal for deciding the question of back benefits only after hearing the parties.
2. I have heard Mr. Azmatullah Deputy Manager of appellant and Mr. Yousuf Khan for the respondents and have gone through the record and proceedings of the case.
3. The latest law with regard to back benefits laid down by the learned Division Bench of the High Court at Karachi is in the case of National Bank v. Sindh Labour Court Appellate Tribunal 1991 PLC 213, it has been observed as under: "In our view, once the Labour Court or the Labour Appellate Tribunal comes to the conclusion and gives a finding that the termination of the services of an employee is unlawful the employee should, as a matter of course be granted back benefits unless the employer is able to establish by cogent evidence that the employee was gainfully employed elsewhere. In case it is established that the employee was gainfully employed, the Labour Court or Tribunal should then assess the amount earned by the employee in such gainful employment and set off such amount against the amounts due to him as back benefits. The purpose of such exercise, therefore. Should be to place the employee in a position as if his services had not been terminated.
4. While coming to above conclusion their Lordships relied upon the decision of Supreme Court in case of Dilkusha Enterprises Ltd. v. Abdul Rashid and others 1985 SCM R 1882 wherein it is held:- "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 0 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. Keeping the law laid down in this regard I have gone through the evidence on the record and find that there is no proof whatsoever that the respondents were gainfully employed anywhere during the period they were out of service.
6. Mr. Azmatullah, Deputy Manager appearing for the appellant submits that in the affidavit-in- evidence as well as in their application under section 25-A of IRO 1969 the respondents had not specifically stated that during the intervening period they were out of service. It may be pointed that the respondents had claimed in the grievance petition full back benefits. In the aforementioned citation the High Court of Sindh and Supreme Court have laid down the burden of proof upon the employer to prove that employee was gainfully employed elsewhere. In the instant case the employer viz. The appellants have failed to discharge this burden, therefore, the respondents are entitled to full back benefits. All the appeals disposed off accordingly by this single decision. The order to be implemented within three months.