The appeal is directed against the decision dated 24-I1-1993, rendered by the Punjab ,Labour Court No. 3, Lahore, at Ferozewala, dismissing the grievance petition filed under section 25-A of the Industrial Relations Ordinance, 1969 by Sher Jhang against the Officers of the Pakistan Engineering Company, Lahore.
2. Sher Jhang was Accounts Assistant (C&S), Accounts Department of the Badami Bagh Works, Lahore (of the Company) and was charge-sheeted on 8-2-1988 for misconduct, having remained absent from duty without sanction of leave and without permission, for a period exceeding ten days, from 26-1-1988 to 6-2-1988. Charge-sheet is Exh. R. 3, and reply to it tendered on 13-2-1988 by Sher Jhang is Exh. R. 4/P-1. His explanation was that he was on leave, having duly been sanctioned, but as for attending to a personal piece of business he had to go to Multan, he could not assume duty, and although he did apply for leave without pay, the letter requiring him to resume duty was received by him on 11-2-1988, as in his absence from home, his mother had received the letter dated 20-1-1988. He said that he was suffering from backache and was having treatment from a doctor. He was, however, charge-sheeted and made to face a regular enquiry, proceedings of which have been placed on record as Exhs. R. 1 and R.
2. In the opinion of the Enquiry Officer his absence from duty had adversely affected his seat work and had also marred discipline in the office, inducing the other employees to behave likewise. His dismissal from service was recommended. The enquiry report was acted upon and he was removed from service.
3. The learned lower Court has upheld and endorsed the action of the establishment by undertaking a comprehensive discussion in para. 18 of the judgment, observing in para. 19 that as the disciplinary action suffered from no irregularity, the grievance petition filed by the employee could not be treated as competent or having any valid premises 'for its initiation. The learned Presiding Officer of the Labour Court has taken note of an apparent inconsistency in the stand- point of the official, having taken up the plea of indisposition of his father, while cross-examining Mr. Mujahid Hussain Syed, Manager Administration, R.W. 3, as against his mother's ailment, as pleaded in the grievance petition. I, however, find, on perusal of the grievance petition, that Sher Jhang had not pleaded like that in the petition,, although while making his statement in the Labour Court as P.W. 3, he did depose having applied for leave on the ground of ailment of his mother. On the face of it, it appears that, the management had taken a very serious view of absence of the official from duty, ordering his removal from service in consequence, although there was room for taking a lenient view and much less punishment would have sufficed. I, however, need not undertake any discussion in that behalf, by taking into consideration the pleadings of the parties, the evidence led in the enquiry and in the Labour Court, and the reasons recorded by the learned lower Court, in upholding the extreme action of the management, the reason being that Sher Jhang has got employment as a Lecturer somewhere and is no longer interested in his re- employment with the respondent concern. He is only desirous of having the back benefits.
4. He was removed from service on 6-4-1988, and he filed the grievance petition in the Labour Court on 23-5-1988. The proceedings in the Labour Court stretched over a period of 5-1/2 years; and the appeal preferred before this Tribunal on 30-12-1993 has also consumed about three years.
In the grievance petition also, he has laid claim to all the back benefits; I do not think that he has entitlement to such benefits, in entirety, for the whole period, April, 1988 to date. In evidence Sher Jhang and his witnesses have not testified to the fact of his remaining jobless. The mere fact that he had made a claim to back benefits was enough to have put the management on the alert, and they should have strived to give a lie to this claim by adducing evidence that Sher Mang, after his removal from the rolls of the PECO; had got employment somewhere else and had not remained jobless. It has been held by superior Courts in several reported cases that an employee cannot possibly lead evidence in the negative to establish that he has not gainfully been employed during the disputed period, and it is for the establishment always to prove, by leading evidence, the fact that the ousted employee had got a job alright and had been earning his livelihood, to certain extent, which magnitude has also to be established as a fact. Ser Jhang is a sentimental and sensitive person, and he has manifestly suffered humiliation and mental agony, besides financial drain, by reason of his having been rendered jobless in an abrupt manner. He has also to be compensated in terms of restoration of his mental peace, as also rehabilitation of his social status.
The respondents are ordered to pay to him 20% of his emoluments, ever since the date of his removal from service, i.e. April, 1988 till end of 1992, where after he got employment as a Lecturer, as stated (without contradiction) by him in the course of his arguments.