1. MUHAMMAD HUSSAIN ADIL KHATRI, J.--- The petitioner was in employment of respondent No.1. Re challenged the order, dated 30-1-1990, whereby his services were terminated on the ground of misconduct, before respondent No.2 under section 25-A of the Industrial Relations Ordinance, 1969.
2. The grievance petition was dismissed by order dated 29-1-1991. The learned Sindh Labour Appellate Tribunal accepted the appeal and ordered re--instatement of the petitioner in service with 50% back benefits vide its order, dated 29-8-1991.
3. This petition has been filed by the petitioner being aggrieved against the aforesaid judgment of the learned Appellate Tribunal inasmuch as he has been granted only 50% back benefits instead of full back benefits.
4. We have heard the learned counsel Mr. M.M. Aqil for the petitioner and Mr. NA. Talpur for respondent No.1.
5. The learned counsel for the petitioner has contended that the petitioner in his grievance petition had prayed for reinstatement with full back benefits and the learned Appellate Tribunal having ordered reinstatement after arriving at the finding that respondent No.1 had failed to prove the charge of misconduct, ought to have granted the full back benefits. In support of his above submission, he has relied on the following cases:--
(1) Niaz Ali v. Punjab Urban Transport Corporation PLD 1983 Lah. 661.
(2) National Bank of Pakistan v. Sindh Labour Appellate Tribunal, Karachi 1991 PLC 213.
(3) Gul Hassan v. D.S. Pakistan Railway 1990 PLC 757.
(4) Syed Asghar Aman v. Sindh Labour Appellate Tribunal and others 1990 PLC 346.
(5) Dil Kusha Enterprises v. Abdul Rashid and others 1985 SCMR 1882.
(6) Salamat Masih v. Punjab Labour Appellate Tribunal 1989 PLC 7.
(7) National Bank of Pakistan v. Muhammad Asif Ahmed PLD 1985 Quetta 100.
(8) Qadeer Ahmed v. Punjab Appellate Tribunal PLD 1990 SC 787.
6. The learned Advocate for respondent No.1 has relied on the case of Muhammad Bashir and others v. Chairman Punjab Labour Appellate Tribunal, Lahore and others 1991 SCMR 2087, in support of his submission that the petitioner is not entitled- to grant of back benefits as he had not claimed in his grievance petition that he had remained jobless from the date of his removal from service.
7. In the above case on analysis of the law laid down in Dilkusha Enterprises Ltd. v. Abdul Rashid and others 1985 SCMR 1882 and Qadeer Ahmad v. Punjab Labour Appellate Tribunal, Lahore and others PLD 1990 SC 787 the Supreme Court has deducted the following two principles:--
(a) that back benefits do not automatically follow the order or 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 reinstatement 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 off on 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.
8. Since it is an admitted fact that the petitioner in his evidence did not make even an oral assertion that he had not been gainfully employed during the period of his severance from service, he had failed to discharge the initial burden of proof, as required under the rule laid down in the above authority. He is therefore, not entitled to grant of the back benefits. The fact that the petitioner in his grievance petition had prayed for grant of full back benefits, cannot be equated with the assertion of the fact in the evidence that he had remained unemployed from the date of termination of service till his re--instatement, for the purpose of shifting the burden of proof to the employer, to positively prove that the workman had been gainfully employed during the said period.
9. This petition is, therefore, dismissed.