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Appeal No. GA‑463 of 1983, decided on 11th July, 1984.
‑‑‑Ss. 25‑A & 38(3)‑‑Re‑instatement‑‑Back benefits‑‑No provision in Ordinance that only such worker entitled to back benefits who has not been gainfully employed elsewhere during intervening period‑‑Employer can claim set off if worker earned something by serving elsewhere‑ Dismissal or termination order found wrongful and not sustainable; employee has to be put back in same position in which he was at time of removal and impugned order to be considered as never came into existence‑‑Workman, in such circumstances, held, entitled to back benefits‑‑Labour Court disallowing back benefits on grounds that worker did not state that he was not gainfully employed elsewhere during intervening period‑‑At appeal stage worker (appellant) filing affidavit to that effect‑‑Objection that such affidavit should have been filed or statement made to that effect before Labour Court and such affidavit could not be filed at appeal stage unless case for additional evidence made out‑‑Objection rejected‑‑Held: Appellant was not aware of fact that he could claim back benefits by showing that he was not gainfully employed elsewhere‑‑Dismissal having been found wrongful appellant, held, had to be put back to same position in which he was at time of dismissal and thus was entitled to back benefits which he would have derived but for wrongful dismissal.
P L D 1969 SC 60; 1972 S C M R 374; PLD1966SC684 and P L D 1963 S C 466 held not applicable.
Ghulam Rasool Malik for Appellant.
Malik Muhammad Nawaz for Respondent.
Date of hearing: 26th June, 1984.
The decision dated 25‑7‑1983 recorded by the learned Presiding Officer, Punjab Labour Court No.2, Lahore has been challenged in this appeal to the extent it disallowed .back benefits to the appellant, while directing his re‑instatement in service.
2. The ground given by the learned lower court is that the appellant did not say in his statement that during the period of his dismissal he was not gainfully employed elsewhere. The appellant has in the appeal filed an affidavit to the effect that he remained jobless. This affidavit has not been controverted by any counter‑affidavit, nor the respondent has contended that in reality the appellant remained employed under any other employer. When an order of dismissal or termination from service is found to be unsustainable, the employee is to be put back in the same position in which he was at the time he was removed from service and it is considered that the order of removal from service never came into existence. Due to the wrong order of dismissal the appellant was prevented from serving the respondent, otherwise he was willing to service. So, on reinstatement he became entitled to the back benefits. The respondent could claim set off but since the appellant did not join service under any other employer, no such question arises.
3. Learned counsel for the respondent has argued that the appellant could not file affidavit with the appeal unless he makes out a case of additional evidence. His line of argument is that either in his statement made before the learned lower court he should have stated that he was not gainfully employed elsewhere during the period of his dismissal or should have filed affidavit to this effect at that stage. Number of authorities have been cited such as P L D 1969 S C 60, 1972 S C I R 374, P L D 1966 S C 684 and P L D 1963 S C 466 but they are not germane to the case. On merits of the case no affidavit or evidence is needed as the appellant has been reinstated and such a direction has not been challenged: There is no provision in the Industrial Relations Ordinance, 1969 that only that worker is entitled to back benefits who has not been gainfully employed during the period he remained out of service. On account of a ruling of the Supreme Court the employer can claim set off if the worker has earned something by joining service with some other employer. Case‑law not being codified law is not presumed to be in the knowledge of everyone and only parties to the case in which ruling has been given are bound by it. The appellant was not aware of the fact that he cannot claim back benefits by showing that he did not join service with arty other employer during the period he remained dismissed, so he did not make such a statement in the learned lower Court.
4. It has also been argued that since the reinstatement was without back benefits, so the respondent was not advised to challenge the order of reinstatement. This argument is not tenable. The respondent was well aware that the appellant had a right of appeal and may prefer it, so should have been vigilent and watchful. The respondent had a right to file counter‑affidavit but has not done so. This means that in reality the appellant did not join service with any other employer. Since the dismissal has been found ‑to be wrongful, the appellant is to be put back in the same position in which he was at the time of dismissal and thus is entitled to back benefits which he would have derived but for (the wrongful dismissal.
5. As a rest it, the appeal is accepted and the appellant is allowed full back benefit.
A. E.
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