1. ' NASIR-UL-MULK, J.---Pearl Continental Hotel, Peshawar have filed this Constitutional petition to challenge the judgment and orders of the Labour Court, Pashawar, dated 7-6-1994 whereby respondent No,3, Anwar Baig, Security Assistant of the Hotel was reinstated after his dismissal from service, and the judgment and orders dated 30-4-1995 of the Labour Appellate Tribunal, N.-W.F.P., Peshawar dismissing the appeal of the petitioner, Respondent No, 3 had been dismissed from service after he was found to have committed the theft of some nuts from the Hotel by the Enquiry Officer nominated by the Hotel Management to hold an enquiry into the allegation.
2. ' The learned counsel for the petitioner was heard at length in motion. He advanced two-fold arguments; firstly, that the Labour Court as well as Appellate Tribunal had wrongly applied the standard of proof required to establish a criminal charge in order to determine as to whether respondent No,3 had committed theft and secondly, respondent No, 3 has unlawfully been held to be entitled to the back benefits as he had been reinstated on a technical error. For the first argument reliance was placed on Punjab Road Transport Board v. Fazle Ellahi (PLD 1976 Lah. 1414) and for the second, on Muhammad Bashir v. PLAT (1991 SCM R 2087). After giving anxious thoughts to the arguments of the learned counsel for the petitioner we have found ourselves unable to agree with him. No doubt in Punjab Road Transport Board, Lahore ibid the Lahore High Court had held that it would not be proper to apply the abstract principles or standard of criminal prosecution or of a civil litigation to proceedings of an enquiry under the Industrial Relations Ordinance. But it is equally settled that the Labour Court is empowered to evaluate the evidence against the dismissed employee in order to determine as to whether it is sufficient to sustain the allegation against him. This is precisely what Labour Court and the Appellate Tribunal had done.
3. Taking into consideration the enquiry report as well as the evidence presented by the parties at the trial it was found that the accusation could not be substantiated. The learned counsel for the petitioner has not been able to point out that the standard of proof applied was not the one permissible under the law. In fact his whole effort was directed to persuade us to re-evaluate the evidence and give a finding on facts contrary to the one impugned herein. We are afraid we cannot do that in Constitutional jurisdiction.
4. ' The second argument is also without force. The judgment cited by the learned counsel for the petitioner, namely, Muhammad Bashir ibid in fact does not support his case. The Supreme Court had held that back benefits do not automatically follow the order of reinstatement when the order of removal or dismissal has been set aside but in order to succeed the workman must assert, at least orally, that he was not gainfully employed elsewhere during the interregnum and thereafter the onus would shift to the employer to show that he was so gainfully employed. In the statement of respondent No, 1 made before the Labour Court it has been specifically alleged at the end of his examinationin-chief: "I am jobless since my dismissal and the termination order being illegal may be set aside and I may be re-instated with all back benefits and wages". No evidence to contradict the assertion of respondent No,3 that he remained unemployed after dismissal has been produced by the petitioner-employers.
5. ' For the foregoing reasons, we are constrained to dismiss this writ petition in limine.