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Appeal No. RI‑39 of 1985, decided on 28th September, 1985.
‑‑S. 25‑A‑‑Re‑instatement‑‑Back benefits‑‑Petitioner workman must at least verbally assert that he remained jobless during intervening period‑‑Onus shifts to employer to prove otherwise if such assertion made by petitioner‑‑Petitioner not making such assertion‑‑Not entitled to back benefits‑‑Plea that where findings are that worker was wrongfully and illegally terminated or dismissed worker would be entitled to back benefits irrespective of fact whether or not he has been earning something‑‑Repelled.
1985 P L C 750 and N L R 1985 Labour 51 ref.
Ch. Sadiq Muhammad Warraich for Appellant.
Imtiaz Muhammad Khan for Respondent.
Date of hearing: 22nd September, 1985.
The decision, dated 18‑12‑1984 recorded by the learned Presiding Officer, Punjab Labour Court No.6, Rawalpindi has been challenged to the extent it disallows back benefits to the appellant.
2. It has been argued by the learned counsel for the appellant that where the finding is 'hat the worker has been wrongly and illegally terminated or dismissed from service, he is entitled to back benefits in order to check the employer to do away with the service without any reason. According to the learned counsel, it is immaterial if the worker has been earning something or not after being dismissed. I cannot agree. Back benefits are allowed not as a punishment to the employer for wrongfully doing away with the services of his employees. The true position is that in order to compensate the worker who is willing and ready to serve but was prevented by the illegal order of dismissal, back benefits are allowed. If the worker gets some employment or work and did not suffer from any monetary loss due to the wrongful order, no question of compensating him by the delivery of back benefits arises. No doubt, on re‑instatement the worker is to be put back in the same position in which he was at the time of termination of service but in order to get back benefits he has to assert that he did not earn anything. Learned counsel has cited 1985 P L C 750 in which no doubt it has been held that unless justification is shown by the opposite party for withholding back benefits, they cannot be disallowed but somewhat contrary view has been taken by the Supreme Court. It has been observed in N L R 1985 Labour 51 that it is wrong to contend that initial burden of proof lies upon, the worker to establish that he was not gainfully employed. Further, it has been observed that workman is entitled to support his claim with oral assertion that he was not gainfully employed and thereafter it would be for the employer to prove affirmatively that the worker was so employed. So I have held in many cases where question of back benefits arose. The worker knows whether he has or has not remained gainfully employed, so in order to show the negative that he was not so employed, he must at least verbally assert. If he does so, then the onus is upon the employer to prove the otherwise. In the present case the appellant did not assert that he was not gainfully employed after he was dismissed. So, he has been rightly disallowed back benefit.
3. As a result, the appeal fails and is dismissed.
A.E.
Appeal dismissed.
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