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Appeals Nos. LHR‑768 of 1982 and LHR. 33 of 1983, decided on 14th March, 1984.

‑‑ Retrenchment‑Workman transferred from lower post‑Entitled to reversion instead of termination on retrenchment of higher post.

‑‑ Ss. 25‑A & 38 (3)‑Termination of service‑Re‑instatement Back benefits‑Termination found wrongful‑Labour Court awarding re‑instatement and disallowing back benefits for reason that petitioner had not said that he remained gainfully employed elsewhere‑Petitioner on appeal filing affidavit stating that he was not gainfully employed and such affidavit not controverted ‑Appellate Tribunal in circumstances, allowing back benefits.

M. A. Hamid Awan for Respondents.

Date of hearing : 6th March, 1984.

The two appeals captioned above arise from the decision, dated 14th December, 1982 passed by the learned Presiding Officer, Punjab Labour Court No. 2, Lahore, whereby Syed Nazir Hussain Naqvi (hereinafter to be called as the respondent) was directed to be re‑instated in service on the post he was holding before he was promoted as a checker, without allowing him back benefits. The Orient Match Company (hereinafter to be described as the appellant) has challenged the direction of re‑instatement, whereas the respondent has in his appeal claimed back benefits. Since both the appeals arise from the same decision, they are being disposed of together through this single judgment.

2. In the wake of re‑organization the respondent who was working at that time as a checker was terminated. Admittedly, before the respondent was made to work as a checker, he was an ordinary worker. Reorganiza tion has not been successfully challenged. The learned lower Court assuming, that the respondent had been promoted to the post of checker, has observed that he should have been reverted to the post that he was holding before he was promoted. The case of the appellant is that although the respondent was initially appointed on a different post, yet he was never promoted to the post of checker and was thus rightly terminated as a consequence of abolition of the posts of checkers. Even this is not the case of the respondent that he was promoted to the post of checker. His case is that he worked in many sections as worker with honorary duties of checker/ supervisor. However, admittedly the appellant was a worker and was transferred as a checker. R. W. 1 admitted that checkers give the progress report of the workers and supervisors give the progress report of the checkers. Since the post of checker is higher than the post of worker, the respondent was promoted from the post of worker to the post of checker when he was transferred. The transfer was a promotion. R. W. 1 admitted that there were many juniors to the respondent as worker, so the respondent should have been reverted as worker instead of being terminated. He, therefore, has been rightly directed by the learned lower Court to be posted on the post of worker from where he was transferred to work. as checker.

3. The learned lower Court disallowed back benefits to the respon dent only for the reason that he did not say that be had been gainfully employed elsewhere during the period of his termination. As no such question was put to him, he did not, say anything in this respect. He has filed affidavit in this appeal to the effect that he was not gainfully employee. The appellant was asked to controvert the affidavit, but it has not been done. By the un-controverted affidavit of the respondent, it stands B established that he was not gainfully employed anywhere else.

4. As a result, the appeal of the appellant is dismissed and the appeal of the respondent is accepted allowing him full back benefits.

A. E. Appeal dismissed

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