' Through this writ petition, the petitioner has sought the following relief:- "It is therefore, respectfully prayed that the impugned judgment of the learned Tribunal dated 5-12- 1987 to the extent of non-granting of back benefits may very kindly be declared to be illegal and without lawful authority and it may very kindly be held that petitioner is entitled to receive back benefits alongwith reinstatement already awarded by the learned Tribunal."
2. Brief facts leading to the above-noted writ petition are that petitioner was serving as a conductor in the Punjab Road Transport Corporation Inter City Depot, Bahawalpur, dismissed from service on charges of misappropriation of money. Having served the department with a grievance notice under section 25-A of the Industrial Relations Ordinance, 1969, petitioner moved Punjab Labour Court No, 8, Bhawalpur against his dismissal from service. The learned Labour Court rejected his petition vide order dated 30-9-1987. The petitioner challenged this order before the learned Labour Appellate Tribunal, Lahore who vide his order/judgment dated 5-12-1987 accepted the appeal and set aside the order of termination and directed that the petitioner should be reinstated in service without back benefits.
3. The benefits were refused to the petitioner on the ground that petitioner had nowhere in his evidence asserted that he had been jobless after having been dismissed from the department.
4. In support of this petition, learned counsel for the petitioner has urged the following pleas:--
(i) that the finding of the learned Labour Appellate Court is based on misreading of evidence inasmuch as petitioner had stated that he was jobless pursuant to the order of termination;
(ii) that the finding of the learned Labour Appellate Court is violative of the law laid down by the Hon'ble Supreme Court reported in Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others (1991 SCM R 2087) and Dilkusha Enterprises Ltd. v. Abdul Rashid and others (1985 SCM R 1882).
5. Learned counsel for the respondent while defending the impugned judgment, has submitted as follows:--
(i) that petitioner did not state in his grievance petition which is Annexure 'A' with the writ petition that he was jobless;
(ii) that the finding of fact arrived at by the two Courts below cannot be interfered with in writ jurisdiction. Reliance was placed on Municipal Committee, Pasrur v. Compensation Commissioner and others (1992 CLC 752).
6. I have heard learned counsel for the parties and have gone through the precedent case-law relied upon.
7. In Dilkusha Enterprises Ltd. v. Abdul Rashid and others (1985 SCM R 1882), the worker had admitted that he had worked in Textile Mills for three months after termination of his service. As there was nothing on record to show that the workman had remained unemployed during the entire post termination period, the Hon'ble Supreme Court upheld the order of Sindh Labour Court granting back benefits to the workman. 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 Bantva Memon, Khidmla Committee v. Niamatullah 1981 PLC 178 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 a negative fact the worker can hardly establish it with anything substantial evidence except this 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."
' In Qadeer Ahmad v. Punjab Labour Appellate Tribunal, Lahore and others (PLD 1990 SC 787), it was observed as follows:-- "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."
Similarly, in Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore (1991 SCM R 2087) the Hon'ble Supreme Court laid down two guiding principles with regard to back benefits and these are:--
(a) that back benefits do not automatically follow the order of reinstatement 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 on the employer to show that he was so gainfully employed. The reason is that the back benefits are to be paid to the workman not as a punishment to the, employer or illegally removing him but to compensate him for his remaining jobless on account of being illegally removed from service.
' In the afore-referred case, the Hon'ble Supreme Court had dismissed three appeals wherein the back benefits had been claimed and had been refused by the Courts below. In two appeals while considering the merits of each appeal, the august Supreme Court came to the conclusion that as the conduct of the workman was not blameless and this contributed to the loss caused to the management as they were bound to serve loyally and devotedly, the refusal to pay back benefits was unexceptionable. In the third appeal, the back benefits were refused on the ground that the workman had made no oral assertion even that he had not been gainfully employed during the period of his termination from service.
There is evidence against the petitioner of misappropriating the public money that he had received from passengers. It is also in evidence that he permitted twenty persons to sit on the floor roof of the bus. He charged fare from those passengers but did not deposit the same. His conduct is not above board and does not merit indulgence in the equitable jurisdiction of this Court. He was reinstated in service by the Punjab Labour Appellate Tribunal, Lahore, on a technical ground i.e, that the charge was time-barred.
8. The conduct of the petitioner was not blameless. In his grievance petition filed after two months of his termination, he did not state that he was without a job. The refusal to pay back benefits by the learned Punjab Labour Appellate Tribunal, Lahore, is not unjustified and, therefore, does not call for interference.
9. For what has been discussed above, there is no merit in this writ petition which is hereby dismissed with no order as to costs.