ARMY WELFARE ENGINEERING INDUSTRIES Versus LIAQAT ALI DRIVER

This is an appeal directed against the decision dated 29‑10‑1986 recorded by learned Presiding Officer, Punjab Labour Court No.6, Rawalpindi whereby the petition has been directed to be returned to the appellant for lack of jurisdiction, if 1985 P L C 1053 which stands challenged before the Supreme Court is confirmed, otherwise the respondent will be re‑instated without back benefits. The respondent has filed cross‑objections also which are being disposed of along with the appeal.

2. The allegation against the respondent for which he was removed from service was of absence on various dates during the period from 1‑4‑1984 to 30‑6‑1984. In reply to the charge‑sheet the respondent contended that his wife remained seriously ill, therefore, he remained absent from duty. In the charge‑sheet it is not mentioned whether the respondent had applied for leave or not and that if he had applied for leave the same was refused. It was decided to hold an enquiry which was actually held but is not proper. Without bringing on the record any evidence to the effect that either no application for leave was received or that it was rejected and the respondent was duly informed, directly the statement of the respondent was recorded by the Enquiry Officer and that too in the form of questions and answers. The said statement was recorded on 22‑8‑1984 and the enquiry was adjourned till following day but it was not re‑started, with the result that it remained incomplete. The statement of the person under enquiry is recorded in order to afford him opportunity to explain the material brought against him in the prosecution evidence. A In the present case since no prosecution evidence was recorded there was no occasion to record the statement of the respondent. The respondent was not afforded any opportunity to prove whether he had applied for leave or not and that if he did not apply whatever the circumstances by which he was compelled not to do so. As the B respondent was condemned unheard the learned lower Court was justified to set aside the order of removal from service. In the grievance notice the respondent contended that first page of his statement recorded by the Enquiry Officer had been replaced and in proof of this allegation it is contended that it neither bears the signatures of the respondent nor of the Enquiry Officer. In view of C this objection it was necessary for the appellant to examine the Enquiry Officer before the learned lower Court to deny the contention of the respondent. In the absence of the evidence of the Enquiry Officer it can be presumed that the allegations made by the respondent in this respect is not groundless.

3. So far as back benefits are concerned the same have been rightly disallowed to the respondent inasmuch as he did not depose before the learned lower Court in his statement that he remained jobless from the date of removal from service. Learned counsel for D the respondent has argued that the onus is upon the employer to show that the worker concerned remained employed elsewhere and he in this respect has cited 1985 S C M R 1882 but the same goes against the respondent. The argument has no force. Initially the worker has to at least depose that he remained jobless because only be knows whether he got any employment elsewhere or not and after he says so the onus shifts upon the employer to prove that he remained employed elsewhere. The observations made in the authority cited above reads as under:‑

"Reference was made to the case of Karachi Transport Corporation v. Jamil Beg 1981 P L C 862 and Bantva Memon, Khidmla Committee v. Naimullah 1981 P L C 178 but we are unable to agree with the broad proposition of law that the initial burden to prove lies upon the worker to establish that he was not gainfully employed elsewhere during the relevant period in order to succeed to the grant of back benefits, for this being a negative fact the worker can hardly establish it with anything substantial evidence except his oral assertion that he was not gainfully employed elsewhere and then it would be for the employer to prove affirmatively that he was so employed. "

In money suits the set off is to be proved by the defendant because, according to accounts maintained by him, he knows what is due to him from the plaintiff but in service cases and particularly in labour cases only the worker knows whether he earned something during the period he remained out of service of the employer and, therefore, he has to make such an assertion and thereafter onus shifts as E mentioned above upon the employer. The direction of return of grievance petition on the condition that 1985 P L C 1053 is confirmed by the Supreme Court is also correct, because every order passed by labour Courts and this Tribunal are subject to the writ jurisdiction F of Lahore High Court and, therefore, its dictums are to be followed.

4. As a result, the appeal as well as, the cross‑objections are dismissed.

M. Y. H./319/Lb.P

Appeal dismissed.