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Appeal No. LHR‑682 of 1984, decided on 30th October, 1985.
‑‑‑ Domestic enquiry‑‑Statement of accused recorded in question answer form‑‑Accused not afforded to make statement freely in his defence but allowed only to answer questions put‑‑Dismissal order based upon such enquiry not sustainable.
‑‑‑Ss. 25‑A & 38(3)‑‑Re‑instatement‑‑Back benefits‑‑Dismissal found wrongful‑‑Back benefits are allowed not as punishment to employer but by way of compensation to employee for remaining out of job for no fault‑‑Employee if remaining on job elsewhere and earning that much what he was getting in service would not be entitled to back benefits‑ Employee claiming, back benefits bound to disclose such fact or to assert that he remained jobless and in onus to prove otherwise shifts to employer‑‑Employee petitioner not asserting that after dismissal he remained jobless‑‑Order of Labour Court allowing back benefits, in circumstances, set aside by Appellate Tribunal.
Muhammad lqbal Khokhar for Appellant.
Khalid Farooq for Respondent.
Date of hearing: 26th October, 1985.
The decision, dated 16‑10‑1984 recorded by the learned Presiding Officer, Punjab Labour Court No. 1, Lahore has been challenged, whereby the respondent was directed to be re‑instated in service with back benefits.
2. The allegation made against the respondent was that 46 passengers were without tickets from whom fare had been realised by the respondent. The plea of the respondent was that all the said passengers were students who did not want to pay even half of the fare and wanted to pay 25% only. Inquiry was not properly held. The witness and the respondent were examined in question and answer form. The statements of the passengers alleged to have been recorded at the time of checking were not got proved from the Checker either during inquiry or before the learned lower Court. They, therefore, have 'no value. Excluding the said record of statements there remains no evidence on the record except the hearsay evidence of the Checker recorded in question and answer form. Since the statement of the respondent too was recorded in question and answer form, he could give answers only to those questions which were put to him and so he was not afforded opportunity to make a statement freely in his defence. The order of 'reinstatement is, therefore, unexceptional.
3. However, the respondent has been wrongly allowed back benefits. The respondent did not assert that after dismissal, he remained jobless. Back benefits are allowed not as a punishment to the employer for wrongfully dismissing the employee, but by way of compensation since the employee remained out of job not for any fault of his. If We had got a job and earned that much what he was getting while in service, he is not entitled to back benefits. Since he knew if he had got any g job and if so what he earned, it was incumbent upon him to disclose this fact, since he came forward to claim back benefits. If he has said that he had remained jobless, the onus would have been upon the employer to prove that the said employee remained employed elsewhere.
3. 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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