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Appeal No. LHR‑286 of 1984, decided on 20th August, 1984.

(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑

‑‑‑S.O.15(4)‑‑Accused to be made aware of allegation precisely which according to employer amounted to misconduct‑‑Charge‑sheet containing allegation of using "un-parliamentary language" without disclosing actual words alleged to have been used‑‑Charge in circumstances, held, vague‑‑Accused during enquiry admitting to have said "he was an employee and not death executor "Jallad"‑‑Such words said by accused about himself and not about any superior, in circumstances, held, did not amount to misconduct.

‑‑‑Ss.25‑A & 38(3)‑‑Wrongful dismissal from service‑‑Re‑instatement‑ Back benefits‑‑Employer can claim set‑off for amount earned by workman by remaining employed elsewhere‑‑Workman must say on oath that he did not remain employed elsewhere‑‑Onus shifts to employer if such statement made by workman‑‑Workman not stating that he did not earn anything during intervening period, held, not entitled to back benefits.

P L D 1970 S C 415 rel.

Ch. Iqbal Muhammad Bhatti for Appellant.

Respondent in person.

Date of hearing. 16th August, 1984.

The appeal captioned above challenges the decision, dated 10‑1‑1984 recorded by the learned Presiding Officer, Punjab Labour Court No.9, Multan, directing the re‑instatement of the respondent in service with back benefits.

2. There were two allegations against the respondent. One was that during inspection he refused to show the record and the other was that he used un-parliamentary language. The enquiry officer found that the record was shown by the respondent but found him guilty of the second charge. So far as the second charge is concerned, it is vague as the actual words used by the respondent were not disclosed in the charge‑sheet. The respondent, therefore, was not made aware of what was the precise allegation against him which according to the employer, amounted to misconduct. In evidence it was deposed and the respondent admitted that he said that he was an employee and not death executor (Jallad). This he said about himself and not about the members of the inspection team. So those words did not amount to any misconduct. The respondent, therefore, was rightly directed to del re‑instated in service.

3. So far as back benefits are concerned, the respondent did not state in his statement before the learned lower Court that he did not remain employed anywhere else during the period of his dismissal. It has been held in P L D 1970 S C 415 that the employer can claim set‑off. Normally the defendant in the civil cases has to claim set‑off as he knows what is due to him from the plaintiff but in labour cases the employer has no source of knowledge if his dismissed earning something or not, whereas the employees know have earned something. In case they have not earned anything the period they remained dismissed, they should say on in order to make them entitled to back benefits. If they say so, onus shifts upon the employer to prove that the person concerned been earning his livelihood. Whatever has been earned, is to be deducted from the claim of back benefits. Since the respondent did not say that he did not earn anything, he is not entitled to back benefits.

4. As a result, the appeal is partly accepted and modifying the impugned decision of the learned lower Court, the respondent is disallowed back benefits.

A. E.

Appeal partly accepted.

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