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Appeal No. MN‑574 of 1984, decided on 30th October, 1985.
‑‑‑Ss. 25‑A & 37‑‑Appeal‑‑Grounds not taken before Labour Court cannot be stressed in appeal‑‑Ex parte order of Labour Court‑‑Petition for setting aside ex parte order not pursued‑‑Grounds taken in such petition, held, could not be stressed in appeal.
Sh. Nazir Ahmad for Appellants.
Muhammad Hafeez for Respondent.
Date of hearing: 28th October, 1985.
The ex parte decision, dated 16‑9‑1984 recorded by the learned Presiding Officer, Punjab Labour Court No. 9, Multan has been challenged, whereby the grievance petition of the respondent for his re‑instatement in service was accepted with back benefits.
2. The respondent was originally employed by appellant No. 1. The proprietor of appellant No. 1 also owns appellant No. 2 i.e. Colony Model Ginning Factory. The respondent was transferred to appellant No. 2 on 24‑1‑1974, Appellant No. 2 was nationalized on 17‑7‑1976. By the passage of time appellant No. 2 was denationalized and was returned to the owner who could not run the same and closed it on 10‑9‑1977 terminating the services of the respondent and some others. The respondent challenged the order before the learned lower Court. On 16‑9‑1984 the appellant's counsel failed to appear and thus the appellants were proceeded ex parte. On the same date ex parte impugned decision was passed. The appellants moved an application for setting aside ex parte decision. As this tribunal was not functioning as the term of the Presiding Officer had expired, the appellants lodged appeal to the High Court which was filed as it did not lie there. The application for setting aside ex parte decision was not pursued and after its dismissal writ was brought to the High Court. When this Tribunal restarted functioning the present appeal was lodged and the writ was got dismissed.
3. The stand taken by the appellants is that on 16‑9‑1984 the grievance petition of the respondent was taken away by the Reader alongwith some other cases to be adjourned as directed by the Court, whereupon the learned counsel left. But on the same date case was again taken up by the learned lower Court and was heard and decided ex parte. It has been argued that .as impression was given that the case was going to be adjourned, he had left and in his absence the case could not have been taken up. Duplicates of the affidavits filed in the learned lower Court with the application for setting aside ex parte decision have been attached to the appeal and it has been argued that the ex parte decision may be set aside and case remanded for redecision after giving opportunity to the appellants to lead evidence on the merits of the case. I am afraid this is not possible. If the petition moved to the learned lower Court had been pursued and the allegations made against the learned lower Court had been established and yet the said petition had been dismissed on merits, there could have been some scope to consider the points raised in this respect. Since the petition was withdrawn or not pursued, the ground taken in the said petition cannot be stressed in this appeal and on merits only the decision can be challenged. Since the appellants did not produce any evidence on merits of the case, there is no such material on the record on the strength of which it may be held that impugned decision is wrong. The learned lower Court was justified in relying upon the un-rebutted evidence produced by the respondent. So there is no scope to set aside the direction of re‑instatement.
4. However, the respondent was not entitled to back benefits. He did not assert before the learned lower Court that after the termination of his services he remained jobless. As this fact was only in his knowledge, he should have asserted first and then the onus would have been upon the appellants to show that he had got some employment elsewhere during that period. Back benefits are allowed not as a punishment to the employer for wrongfully terminating the services of the employee concerned. But by way of compensation for remaining out of job for not fault of his. He, therefore, should have asserted that he remained jobless.
5. 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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