DECISION ' The appellant was a permanent worker having been engaged as a waiter at the respondent's Hotel Midway House since the year 1990. After about three years his services were terminated on the ground of retrenchment. He filed his grievance petition before the Fourth Sindh Labour Court Karachi. The Labour Court after trial came to the decision that the appellant was illegally deprived of his job and be was entitled for being reinstated in service. The learned Labour Court passed the orders accordingly but the appellant was not awarded the back benefits for the period he remained out of job.
2. The only point urged for keeping back the back benefits is that the appellant after termination had once been offered reinstatement in temporary capacity for a period of six months which he refused. On the other hand it has been established in evidence that the appellant throughout the period remained out of job or without any other employment. This has been admitted even by the respondent in evidence. There is a decision of our own High Court reported in 1991 PLC 213. It was held by Mr. Justice Nasir Aslam 7ahid and Muhammad Aslam Arain, JJ. That "where the termination of service of an employee is unlawful, employee as a matter of course, should be granted back benefits unless employer is able to establish by cogent evidence that the employee was gainfully employed elsewhere during the period under dispute." The burden is on the employer to show that the employee was gainfully employed at any time after the termination. In this case it is an admitted position that the appellant remained out of job for the entire period and he has proved by his evidence and this point was not disputed by the respondent. The only point being emphasized is refusal at one time to accept a temporary position initially for six months. This is no reason for not awarding the back benefits to which the appellant would be otherwise entitled. The order of the learned Lower Court is modified accordingly and the appeal for back benefits is allowed. The back benefits should be paid to the appellant within 15 days.