1. ' This judgment shall dispose of Writ Petition No, 3449/92 and Writ Petition No,5757/93 as the parties as well as impugned order both are the same in these petitions.
2. ' Facts briefly are that Jahangir Ahmad Khan petitioner itr Writ Petition No,3449/92 was initially appointed as an Audit Assistant in Packages Ltd., Kot Lakhpat on 21-5-1985. A show-cause notice was issued to him on 16-2-1987 to explain his position respecting the purchases made by him from certain suppliers. A detailed reply was given by him refuting the allegations levelled. Thereupon, an enquiry was undertaken and on the basis of the same he was dismissed from service on 1-4-1987.
3. ' He filed petition under section 25-A of the Industrial Relations Ordinance, 1969 against his dismissal order after attending to the legal formalities. The Punjab Labour Court No,II, Lahore through its judgment dated 19-1-1991 reinstated him without back benefits. Against this order two appeals one by Jehangir Ahmad Khan against the denial of back benefits and the other by Messrs Packages Ltd. Against the very reinstatement were filed. Both these appeals were dismissed by the Punjab Labour Appellate Tribunal through its judgment dated 13-10-1991.
4. ' Petitioner Jehangir Ahmad Khan filed Constitutional Petition No,3449 of 1993 against the denial of back benefits in April, 1992 while Messrs Packages Ltd. Filed Writ Petition No,5757/93 in June, 1993 against the very reinstatement order.
5. I have considered the arguments of both the learned counsel appearing for the respective parties and have also gone through the impugned judgments. It is noticed that the petitioner Jehangir Ahmad Khan in his application under section 25-A of I.R.O. Claimed his re-instatement with back benefits. Similarly in the memo of appeal before the Punjab Labour Appellate Tribunal he categorically stated that he remained absolutely jobless after his termination and had not earned any money from any source. Simply because he had not stated in his statement before the Punjab Labour Court that he remained jobless during his termination period, he cannot be denied back benefits particularly so when in the memo of appeal before the Punjab Labour Appellate Tribunal he had specifically mentioned this aspect. It is true that before the Punjab Labour Court he did not specifically state that he remained out of job during the currency of his termination but certainly before the Appellate Tribunal in the memo of appeal he took the specific ground that he remained jobless during that period. If from the averments of the pleadings o the parties it is reflected that some case is made out then the duty is cast upo the Courts to pass appropriate order.
6. ' In my opinion the denial of back benefits by the Punjab Labour Appellate Tribunal to Jehangir Ahmad Khan was not justified simply on th ground that he did not urge before the Punjab Labour Court that he remaine out of service without any earning during his jobless period particularly s when he had urged this point in his memo. Of appeal before the Tribunal. A earlier stated the petitioner in his memo of appeal before the Punjab Labou Appellate Tribunal has urged in para. 3 stated as under:- "That the appellant after termination of his service till his reinstatement remained absolutely jobless and had not earned any money from any other source and that is why the Respondents had not ' even claimed the set of his earnings during that period. Therefore, the Court below had no legal justification to withhold the back wages."
7. ' The Hon'ble Supreme Court in Civil Appeal No,498 of 1989 remanded the case to Punjab Labour Appellate Tribunal wherein due to the absence of statement before the Labour Court, the employee was denied the back benefits and this determination was upheld by the Punjab Labour Appellate Tribunal as well as by this Court on the ground that the application for additional evidence in this regard was not adverted to. The employee was given chance to lead evidence on the point whether he remained jobless during the period when he was kept out from service. In the case in hand the present petitioner took a specific ground in' his memo of appeal and the Punjab Labour Appellate Tribunal did not advert to the same. In these circumstances, the order of the Punjab Labour Appellate Tribunal declining the back benefits is hereby set aside and the case is remitted to the Punjab-Labour Court for allowing the parties to lead evidence on the question of back benefits. There shall be no order as to cost.
8. As far as the Writ Petition No,5757/93 is concerned the argument of the learned counsel for the petitioner that Jehangir Ahmad Khan was not a workman is devoid of any force. The Punjab Labour Appellate Tribunal had dealt this point minutely in para. 3 of his judgment and has held him workman. The operative part is in the following words:- "In the absence of any evidence that any Cartman or Peon was given to the respondent, the presumption would be that the articles which admittedly the respondent had been purchasing were to be carried by him. Carrying of articles for delivering to the appellant was obviously a manual work. The appellant, therefore, was covered by the definition of 'workman'. Since the respondent was a Purchase Assistant and this is not the case of the appellant that his powers were supervisory, he is covered by the definition of 'workman' given in the Industrial Relations Ordinance, 1969 and thus was entitled to move an application under section 25-A."
9. ' Even otherwise on merits there is no evidence to the effect that Jehangi Ahmad Khan made any purchases. No shop-keeper appeared to substantiat the allegations levelled against the petitioner.
10. Resultantly, this writ petition I dismissed in limine.