PLJ 2013 SC 834
Present: Iftikhar Muhammad Chaudhry, CJ, Tassaduq Hussain Jillani, Amir Hani Muslim, Gulzar Ahmed & Sh. Azmat Saeed, JJ.
INSPECTOR GENERAL POLICE, PUNJAB,
C.A. No. 52 of 2012, decided on 25.4.2013.
(On appeal from the judgment dated 20.10.2011 of the Punjab Service Tribunal,
passed in Appeal No. 3039 of 2010). Lahore
, 1973-- Pakistan
----Art. 212(3)--Leave to appeal was granted to consider that service tribunal could not have exercise discretion to modify quantum of punishment. [P. 836] A
2009 PLC (CS) 47, rel.
----R. 7.3--Punjab Civil Servants Act, 1974, S. 16--Payment of entire back benefits--Removed from service--Opinion of department--Back benefits of period during which civil servant could not join his service could not be established because pendency of decision of criminal case--Determine innocence--Validity--Such opinion was against law because proposition of law is that a person is innocent unless he is proven guilty by a competent Court of law. [P. 839] B
2010 SCMR 1706, ref.
----R. 7.3--Federal Service Rules, R. 54--Punjab Civil Servants Act, 1974, S. 12(ii)--Payment of back benefits, stood removed from service--Compulsorily retired after completing of 25 years of service--Redressal of his grievance in respect of grant of back benefits--Succeeded in getting benefits as prayed for judgment--Question of grant of back benefits, whether civil servant had been engaged in any job during period when he was subjected to departmental proceedings--Intervening period during which he remained out of service would be treated as leave without pay--Comment to forego arrears in case of reinstatement in service--Validity--Such concession of appellant had not been incorporated in the judgment of Service Tribunal and that there was no reference to that back benefits are not allowed in view of concession of appellant--It was held that these comments cannot be taken into consideration--Committee was ordered to decide appellant's entitlement of arrears of pay and adjustment, if any in accordance Rules--Minus period during which he remained absent from duty i.e. four months, he was entitled to back benefits subject to establishing before department that he was not gainfully employed during that period--Civil servant was entitled for back benefit as it was department, which on basis of wrong opinion kept him from not performing his duty--Further held--Civil servant was entitled to get back benefits during the period when he had instituted revision petition which was kept pending till decision of criminal as well as civil cases--Therefore from date of filing of revision petition he was entitled to back benefits during period when he remained absent--Appeal was dismissed. [Pp. 848 & 849] C, D, E, I & J
----Entitlement of back benefits--Grant of back benefits to an employee who was reinstated by tribunal or department is a rule and denial of such benefit is an exception on proof of that such a person had remained gainfully employed during such period--Entitlement of back benefits of a person has to be determined on basis of facts of each case independently--When no difficulty as felt by Court or tribunal to grant back benefits when there are admitted facts between parties but when there is a dispute in respect of facts then of course, matter had to be referred to department. [P. 849] F & G
----R. 7.3--Back benefits--Payment of period which civil servant removed from service--Back benefits were not awarded as intervening period was considered as absence--Validity--Question of granting back benefits with regard to period during which he remained absent from duty i.e. period of about 4 months could be based on a disputed fact but as far as the period during which his revision petition was kept pending for decision of criminal as well as civil cases, civil servant cannot be held responsible for same because it was on account of act of department for which he cannot be held responsible in any manner. [P. 849] H
Mr. Jawwad Hassan, Addl. A.G. for Appellant.
Mr. Aftab Alam, ASC for Respondent.
Date of hearing: 25.4.2013.
Iftikhar Muhammad Chaudhry, C.J.--Leave to appeal has been granted by this Court vide order dated 1st March, 2012, to examine the following question:
"Inter alia contends that the learned Service Tribunal could not have exercised discretion to modify the quantum of punishment. Relies on IG (Prisons) NWFP, etc Vs. Syed Jaffar Shah (2009 PLC (CS) 47). Leave is granted inter alia to consider the issue raised.
2. On 13th March, 2012, the leaned Bench, seized of the matter, was required to examine the provisions of Rule 7.3 of the Civil Service Rules (Punjab) in the context of the payment of the entire back benefits for a period of 17 years, 8 months and 29 days during which the respondent stood removed from service and in this behalf, two judgments, titled as Muhammad Hussain and others v. EDO (Education) and others (2007 SCMR 855) and Federation of Pakistan through Secretary, Ministry of Education and others v. Naheed Naushahi, (2010 SCMR 11) were cited. The learned Bench noted that some principles had been laid down in both the above-mentioned judgments but not in a definite way, particularly, when examined in the light of the circumstances of this case, therefore, it was considered appropriate that a rule be enunciated, after considering all the relevant aspects, arising in this and similar cases with further observation that it be placed before a Bench of five learned Judges of this Court for resolving the conflicting judgments.
3. A brief account of the facts of the instant case is that upon a written complaint submitted by one Mst. Sakina Bibi through her husband, a case was registered against the respondent, Constable Tariq Mehmood (No. 7607) and others, vide FIR No. 52/1992 under Sections 109/419/420/468/471, PPC at Police Station Lower Mall,
. Due to registration of the criminal case he was placed under suspension on 06.07.1992 w.e.f. 29.06.1992. Incidentally, the respondent had also been found absent from duty for a period of three months and 26 days w.e.f. 29.6.1992 to 28.07.1992 and 30.08.1992 up till the passing of order dated 26.11.1992, when in pursuance of departmental proceedings, he was dismissed from service under Punjab Police Rules, 1975. Against the order of dismissal from service, respondent preferred an appeal which was dismissed on 21.4.1993. Lahore
4. The respondent had been facing trial before the learned Magistrate in pursuance of the above referred FIR. In the meanwhile, he also filed a Revision Petition before the Inspector General of Police. Revision petition so filed by him was entertained but it was kept pending till the decision of the case arising out of the FIR noted hereinabove, as well as adjudication of a civil suit. It may also be noted that in respect of the same subject matter, a civil suit was also pending in which the respondent was not a party. However, in the criminal case noted hereinabove, the respondent was ultimately acquitted from the criminal charge by the learned Magistrate Section-30, Lahore vide order dated 1.3.2010 not on merits but while disposing of application under Section 249-A, Cr.P.C.
5. It may be observed that this Court in the case of Dr. Muhammad Islam v. Govt. of NWFP through Secondary Food, Agriculture, Live Stock and Cooperative Department Peshawar and two others (1998 SCMR 1993) had declared that all acquittals are certainly honourable. There can be no acquittal which may be said to be dis-honourable and the law has not drawn any distinction between these two types of acquittals, Thus, after recording of acquittal, the revision petition so preferred by him was allowed on 13.08.2010. The relevant paras therefrom are reproduced herein below.--
"This order shall dispose of a revision petition preferred by Ex-Constable Tariq Mehmood No. 7607 of Lahore district against the punishment of "dismissal from service" awarded by the SP Headquarters, Lahore vide Order No. 5575-80/ST, dated 26.11.1992 on the charge of his involvement in case FIR No. 52/92 u/S. 419/420/468/471 PPC, P.S. Lower Mall, Lahore and absence from duty for a period of about 04 months. His appeal was rejected by the appellate authority vide Order No. 16150-51/AC, dated 21.04.1993.
2. The undersigned has gone through the revision petition, parawise comments thereon offered by the punishing as well as appellate authorities and other relevant papers minutely. The petitioner has also been heard in person in the Orderly Room on 11.05.2010.
3. Upon perusal of the case file it has transpired that on receipt of instant appeal the case was referred to AIG Legal for opinion as the criminal case is under trial who opined that the innocence of the appellant can not be established prior to the decision of the criminal case, which will be however, decided by the Court after the disposal of civil suit. In the light of legal opinion the then competent authority directed on 13.02.1994 to pend the case till the decision of the Court."
4. The petitioner in his revision petition as well as during the course of personal hearing denied the allegations levelled against him and stated that he was falsely implicated in the above said criminal case. During personal appearance he has adduced a copy of order dated 01.03.2010 by Magistrate Section-30, Lahore, vide which he has been acquitted in case FIR No. 52/92 u/S. 419/420/468/471, PPC, PS Lower Mall, Lahore under section 249-A, Cr.P.C. When asked about his absence from duty, the petitioner stated that he remained absent due to registration of said criminal (case) against him. Now the case has been decided by the competent Court of law and there is no reason to keep it pending further.
5. In the light of his acquittal in the criminal case, a lenient view is taken. The petitioner is reinstated in service with immediate effect and the period of absence/out of service will be treated as leave without pay. No emolument will be paid to him for the period of his absence/out of service."
6. In the opinion of the AIG, back benefits of the period during which the respondent could not join his service could not be established because of the pendency of the decision of the criminal case, which was to be decided by the Court after disposal of the civil suit case to determine the innocence of the respondent. We may observe, at this stage, that this opinion was against the law because the proposition of the law is that a person is innocent unless he is proven guilty by a competent Court of law. Reference may be made to the case of Muhammad Asghar alias Nannah v. State (2010 SCMR 1706).
However, for the redressal of his grievance in respect of grant of back benefits, he approached the Service Tribunal and succeeded in getting the back benefits as prayed for vide impugned judgment dated 20.10.2011. Concluding para therefrom is reproduced herein below:--
"5. The departmental view that according to Rule 7.3 of CSR it is discretion of the competent authority to treat the period of absence either on duty or otherwise. But the discretion has to be used judiciously. After acquittal in the criminal case and his reinstatement by the departmental authority there is no justification for depriving him of the benefits of the period that he remained out of service. Appeal is, therefore, accepted and the impugned orders are set aside. He be paid benefits of the period that he remained out of service."
7. The learned Additional Advocate General, Punjab, in support of his arguments stated that as this Court in the judgment reported as Naheed Naushahi (Supra) had observed that the question of grant of back benefits in terms of monetary benefits has to be decided by the Department keeping in view the facts whether civil servant had been engaged in any job during the period when he was subjected to departmental proceedings or otherwise. Therefore, the Tribunal could not have passed an order in his favour without determining this aspect of the case. Reliance has also been placed by him on the case of Muhammad Bashir v. Secretary to the Government of the Punjab, Education Department,
and 2 others (1994 SCMR. 1801). Lahore
Whereas on the other hand in the case of Muhammad Hussain (ibid) it has been held that grant of service back-benefits to an employee who had been illegally kept away from employment was the rule and denial of such benefits to such a reinstated employee was an exception on the proof of such a person having remained gainfully employed during such a period. Therefore, he prayed that under Rule 7.3 of CSR, Service Tribunal may have not allowed him back benefits in view of the judgment which has been relied upon.
8. Learned counsel for the respondent stated that in view of the facts and circumstances of the case, Service Tribunal had given relief which is in accordance with the law laid down in the case of Muhammad Hussain (ibid).
9. We have carefully examined arguments put forward by both the learned counsel for the parties. It would be appropriate to note that a Full Bench of this Court in the case of Muhammad Bashir (ibid), while taking into consideration facts of the case, namely, the appellant therein was compulsorily retired on 26.06.1986 after completing 25 years of service under Section 12(ii) of Punjab Civil Servants Act, 1974. After having failed to get his grievance redressed from the departmental authorities, he challenged the order of his retirement before Punjab Service Tribunal on two grounds, firstly, that he had not completed 25 years' service qualifying for pension and secondly, that the order of reinstatement had not been made in accordance with public interest. The Tribunal did not attend to the first ground but allowed appeal on the ground that the record of appellant was satisfactory and good. The Tribunal also held that the intervening period during which he remained out of service would be treated as leave without pay and on having taken into consideration Section 16 of Punjab Civil Servants Act, 1974 read with FR 54 held as under:--
"In the present case clause (b) would attract. The Committee shall also take into consideration whether a civil servant has earned any amount by way of salary or as profit on account of his having accepted some employment or been engaged in some profitable business during the intervening period. Similarly, according to proviso (ii) of Section 16 of the Punjab Civil Servants Act, 1974, where an order of removal of a civil servant has been set aside, he shall be entitled to such arrears of pay as the authority setting aside the `order may determine. In the instant case, the Tribunal has not allowed the arrears of pay without assigning any reason. The learned counsel appearing on behalf of the respondents has referred to comments of the Punjab Service Tribunal, which state as under:--
"While hearing the case the appellant Muhammad Bashir had given his comment to forego arrears in case of his re-instatement in service. Consequently in the last para. of the judgment dated 28-3-1992 it is observed that the intervening period during which the appellant remained out of service shall be treated as leave without pay."
At this stage it would be appropriate to place in juxtaposition FR 54 and CSR 7.3 as under:--
7.3 Civil Service Rules (
When the suspension of a Government servant is held to have been unjustifiable or not wholly justifiable; or when a Government servant who has been dismissed, removed or suspended is reinstated, the revising or appellate authority may grant to him for the period of his absence from duty--
(a) if he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and, by an order to be separately recorded any allowance of which he was in receipt prior to his dismissal, removal or suspension; and
(b) if otherwise, such proportion of such pay and allowances as the revising or appellate authority may prescribe. It further provides that in a case falling under clause (a), the period of absence from duty will be treated as a period spent on duty.
In a case falling under clause (b) it will not be treated as a period spent on duty unless the revising or appellate authority so directs: Provided that the amount of arrears payable to the Government servants concerned, whether he is re-instated as a result of a Court judgment or acceptance of his appeal by the departmental authority, shall be reduced by the amount earned by way of salary or as profit on account of his having accepted some employment or been engaged in some profitable business during the period he remained dismissed, removed or suspended, and for the determination of the said amount a committee shall be constituted consisting of two officers of the Administrative Division and a representative of the Finance Division.
When a Government Servant who has been dismissed or removed from service, is reinstated, the revising or appellate authority may grant to him for the period of his absence from duty:
(a) "if he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed or removed and by an order to be separately recorded and allowances of which he was in receipt prior to his dismissal or removal; or
(b) "if otherwise, such proportion of such pay and allowances as the revising or appellate authority may prescribe".
In a case falling under clause (a), the period of absence from duty will be treated as a period spent on duty. In a case falling under Clause (b), it will not be treated as a period spent on duty unless the revising or appellate authority so directs.
In the provisions quoted above, one thing is common namely that on re-instatement either by Court order or by the departmental authority, after acceptance of appeal, the employee would be entitled to back benefits, if it is established that he had not been engaged gainfully during the period when he was out of job.
10. There is yet another provision on this subject i.e. Sl.No. 155, Vol-II, Esta Code, 2007 Edition, the contents whereof are reproduced hereinbelow:--
Reinstatement of Government Servants, on Court decision and Functions of Enquiry Committee.
A. reference is invited to the O.M. from the Law Division No. F. 7(8)-70-Sol(1), dated 12th August, 1970 (SI, No. 154), which states, inter alias, that, in accordance with the Supreme Court's judgment in CA No. 28 of 1969 (West Pakistan v. Mrs. A.V. Issacs), if the dismissal of a Government servant is held to be unlawful, he has to be allowed salary for the period he was kept out of service, reduced by the amount, if any, that he might have earned by way of salary, or as profits, on account of having accepted some employment, or having been engaged in some profitable business, during the above period. Thus, the legal status of Governments' claims for arrears of pay and allowances is no longer the same as had been indicated in para. 3 of this Ministry's Circular D.O.No. F.9(15)-RI (Rwp.)/61 dated 23rd December, 1961 (Annex). Consequently, it is no longer appropriate for the enquiry committee referred to in
Para. 4 of that circular D.O. to consider on merits, in cases in which Government servants are restored to their posts as a result of Court's decisions, as to whether or not, and not to what extent, pay and allowance for the period of their absence from duty should be restored.
(2) It has accordingly been decided that in cases where a Government servant is reinstated retrospectively as a result of a Court's decision, the functions of the enquiry committee to be set up under para.4 of this Ministry's Circular D,O.No. F.9(15)-RI(Rwp)/61 dated 23rd December, 1961 (Annex) would henceforth be as follows:--
(a) The Ministry/Division/Department, as the case may be, may obtain from the Government servant concerned, a solemn declaration, supported by an affidavit, as to the particulars of his employment, or engagement in profitable business, during the period of his absence from duty, and the amount earned by him by way of salary from such employment, or as profits in such business.
(b) After examining such evidence as might be available, and cross-examining, if necessary, the Government servant, the Ministry/ Division/Department, as the case may be, may give their findings as to whether or not the above declaration is, `prima facie' acceptable and on what grounds.
(c) If the declaration is found to be, `prima facie', unacceptable, the Ministry/Division/Department, as the case may be, should refer the case to the committee, which, before giving their finding as to the amount earned by the Government servant during the period of absence from duty, may get the declaration properly verified/scrutinized by any agency they consider appropriate. For example, if the case had been dealt with by the Special Police Establishment at any earlier stage in any connection, this verification/scrutiny may be arranged to be carried out by that Establishment. For purpose of this verification/scrutiny, assistance of the relevant Income-tax authorities may also be sought, if the Government servant concerned be an Income-tax payer.
(d) In case the reinstatement of the Government servant has been ordered by the Court on account of the relevant administrative, action having been found to be defective, the committee should also give their findings:
(i) As to which officers were responsible for that defectiveness of an administrative action; and
(ii) As to whether any, and what part, of the amount payable to the Government servant by way of net salary for the period of his absence from duty, might justifiably be recovered from such officers. The recovery from such officers will, of course, follow departmental proceedings under the Government Servants (Efficiency and Discipline) Rules.
(3) The above instructions do not apply to cases in which, Government servants are reinstated as a result of acceptance of appeals by departmental appellate authorities, which will continue to be regulated by provisions of FR-54 as hitherto
(Extract of Paras. 4 and 5 of the Finance Division Letter No. F1(15)RI (Rwp)/61, dated 23rd December, 1961 as amended).
(4) If as a result of Court decision, a Government servant restored to his post, the question whether pay and allowances for the period he was under suspension or was removed from service should be decided on merit of each case. For this purpose, it is suggested that in all cases the Ministry or Department concerned should order a departmental enquiry headed by the representative of the Ministry/Department Administratively concerned with their Financial Adviser/Deputy Financial Adviser as a member of the committee. This committee should consider whether, on the merits of the case, Government would be justified in restoring the official concerned, the pay and allowances for the period involved and, if so, whether in full or in part. In coming to a conclusion whether pay and allowances to the individual should or should not be restored, following considerations will have to kept in view:--
(a) Whether the person concerned was acquitted on a purely technical or procedural grounds or whether the actual, allegations against him had been gone into and were found to be incorrect;
(b) Whether the individual during the period he was away from active duty and other sources of income; and so on.
(5) It has further been decided that in cases where the total period involved does not exceed 12 months from the time the individual was suspended or removed from service, the final decision should be taken by the Ministry concerned at the level of Secretary and in all other cases the matter should be referred to the Ministry of Finance for prior concurrence."
In view of the above provisions of F.R, and CSR as well as Esta Code, this Court had been expressing its opinion with regards to the settled law in various pronouncements. Reference may be made to judgments in the cases of Muhammad Hussain (ibid); Naheed Naushahi's case (supra); Sher Muhammad Shahzad v. District Health Officer (2006 SCMR 421); Binyamin Masih v. Government of Punjab through Secretary Education, Lahore (2005 SCMR 1032); General Manager/Circle Executive Muslim Commercial Bank Limited v. Mehmood Ahmed Butt (2002 SCMR 1064); Pakistan through General Manager, P.W.R., v. Mrs. A. V. Issacs (PLD 1970 SC 415).
In the case of Muhammad Hussain (ibid), this Court has clearly settled the law stating that:--
"It is a settled law that grant of service back-benefits to an employee who had been illegally kept away from employment was the rule and denial of such benefits to such a reinstated employee was an exception on the proof of such a person having remained gainfully employed during such a period."
And further that:--
"It is an admitted fact that there is nothing on record that the petitioners were gainfully employed anywhere during the relevant period and this fact was also not considered by the learned Service Tribunal in para 6 of the impugned judgment. Therefore, it would be very unjust and harsh to deprive the petitioners of back-benefits for the period for which they remained out of job without any fault from their side. It is a settled law that back-benefits in such situation cannot be withheld by the respondents or by the learned Service Tribunal."
In the same case, the Supreme Court also distinguished the judgment of this Court in Mansoor-ul-Haq's case, cited above:--
"The learned Service Tribunal has refused back-benefits to the petitioners in view of law laid down by this Court in Mansoor-ul Haq's case 2004 SCMR 1308 which is distinguished on facts and law wherein PIDC vide order dated 23-6-1986 terminated Mansoorul-Haq's lien by stating that the same will be maintained by PACO, a borrowing organization and not in the PIDC and the said proposal was accepted by the PACO, therefore, the judgment relied by the Law Officer and learned Service Tribunal is distinguished on facts and law."
In the case of Sher Muhammad (supra) it was held:--
"...there is nothing on record that the petitioners were gainfully employed anywhere during the relevant period. It would be very unjust and harsh to deprive them of back-benefits for the period for which they remained out of job without any fault from A their side. At the cost of repetition they were proceeded under (Efficiency and Discipline) Rules for no fault on their part and their services were terminated in an arbitrary manner without providing any reason. The departmental authority rejected their appeals simply on the ground that they were appointed against the post of Medical Technician in an erratic manner without noticing that they were selected as Dispensers in BS-6 and the competent authority of its own adjusted them as Medical Technicians in their own pay and scale. It was not their fault that they held the post of Medical Technician. All these aspects have not been considered and the petitioners were made to suffer throughout this period for no fault of their own. In these circumstances we fail to understand how their salary can be withheld for the said period when they remained out of service due to whimsical and arbitrary actions of the functionaries. The petitioners have got every right to recover their arrears. Reliance in this respect is placed on
Pakistan through General Manager, P.W.R., v. Mrs. A.V. Issacs (PLD 1970 SC 415). Accordingly, keeping in view all the aforesaid features of the cases, we convert these petitions into appeals and allow the petitioners all the back-benefits." Lahore
In the case of Binyamin Masih (supra), the Service Tribunal accepted the appeal preferred on behalf of the petitioner therein. However, it refused to grant back-benefits for the period during which the petitioner remained out of service. It was ordered by this Court that the intervening period be treated as leave of the kind due to him. The Supreme Court converted the petition into appeal and accepted the same while modifying the judgment of the Tribunal to the extent that the salary concerning the period from 24-1-1996 to 11-2-2000 would be paid to the petitioner within a period of four weeks under intimation to the Assistant Registrar of this Court at Lahore.
This Court ruled in the Mehmood Ahmed Butt case (supra) that:--
"It may be added that grant of service benefits to an employee who had been illegally kept away from his employment was the rule and denial of service benefits to such a reinstated employee was an exception on the proof of such a person having remained gainfully employed during such a period. The mere fact that the respondent had left the country and had gone abroad without any proof of his being gainfully employed during the period in question, was not sufficient to deprive him of the benefits in issue. Needless also to add that nothing is available with us to hold that the respondent had remained gainfully employed somewhere during the said period."
The Supreme Court directed in its judgment in the Naheed Naushahi case (supra):
"Thus we are of the considered opinion that the Service Tribunal instead of granting relief as it is evident from the concluding paras with regard to the financial back-benefits may have referred the case to the department for establishing a Committee for the purpose as noted above. Before parting with this order it is to be noted that the department shall refer the case of the respondent to the Committee, which will be constituted in view of the above instructions contained in SI.No. 151 of the Code for determining whether she is entitled for the claimed financial benefits or not. However, the department is directed to dispose of the matter in respect of her back-benefits expeditiously but not beyond the period of two months on receipt of this order."
In the case of Muhammad Bashir v. Secretary to the Government of Pakistan (1994 SCMR 1801), leave to appeal was granted to the appellant to consider whether the Service tribunal was justified in refusing back benefits. The brief facts of the case were that:--
"...the appellant was serving as Subject Specialist in
Government Comprehensive School, , when he was retired from service under Section 12(ii) of Punjab Civil Servants Act, 1974, after having completed 25 years' service, on 26-6-1986. The appellant having failed to get his grievance redressed from the Departmental authorities, approached the Punjab Service Tribunal. He challenged the order of his retirement on two grounds; firstly, the appellant had not completed 25 years' service qualifying for pension, and secondly that the order of retirement had not been made in the public interest. The learned Service Tribunal had not attended to Ground No. 1 but allowed the appeal on the ground that the record of the appellant was satisfactory and good. The Character Roll presented in the Court depicts that his service record was quite satisfactory/good. While allowing the appeal the Service Tribunal held that the intervening period, during which the appellant remained out of service, shall be treated as leave without pay." Faisalabad
Citing the provisions of F.R. 54, the Supreme Court held that:--
"In the present case clause (b) would attract. The Committee shall also take into consideration whether a civil servant has earned any amount by way of salary or as profit on account of his having accepted some employment or been engaged in some profitable business during the intervening period. Similarly, according to proviso (ii) of Section 16 of the Punjab Civil Servants Act, 1974, where an order of removal of a civil servant has been set aside, he shall be entitled to such arrears of pay as the authority setting aside the order may determine. In the instant case the Tribunal has not allowed the arrears of pay without assigning any reason."
In the case of Trustees of The Port of Karachi v. Muhammad Saleem (1994 SCMR 2213) the Court has held that the while the entitlement of a reinstated employee to get the back benefits is to be determined on the basis of the facts of each case independently.
In the impugned judgment in this case, the Service Tribunal had held that the appellant had given his comment to forego arrears (back benefits) in case of his re-instatement in service. Consequently, it was observed by the tribunal that the intervening period during which the appellant remained out of service shall be treated as leave without pay. However, the Supreme Court held that this concession of the appellant had not been incorporated in the impugned judgment of the Service Tribunal and that there was also no reference to that back benefits are not allowed in view of the concession of the appellant. Therefore, it was held that these comments cannot be taken into consideration. In view of these facts and circumstances, the appeal was accepted, and the case remanded to the official respondents for deciding the matter in accordance with law. The Committee was ordered to decide the appellant's entitlement of arrears of pay and adjustment, if any, in accordance with Rule F.R. 54 and Civil Services Laws.
11. The crux of the above case law is that the grant of back benefits to an employee who was reinstated by a Court/Tribunal or the department is a rule and denial of such benefit is an exception on the proof of that such a person had remained gainfully employed during such period. The entitlement of back benefits of a person has to be determined on the basis of facts of each case independently. There would be cases at times when no difficulty is felt by the Court or Tribunal to grant the back benefits when there are admitted facts between the parties but when there is a dispute in respect of the facts then of course, the matter had to be referred to the Department.
12. In the instant case the respondent was dismissed from service was awarded to him vide order dated 26.11.1992 but later on reinstated on 13.08.2010, however, the back benefits were not awarded to him as the intervening period was considered as absence/out of service. The case of the respondent is to be considered at the touchstone of the principles of granting back benefits as deduced from the judgments cited above. It is to be observed that as far as the question of granting back benefits to the respondent with regard to the period during which he remained absent from duty i.e. period of about 4 months could be based on a disputed fact but as far as the period during which his Revision Petition was kept pending for decision of the criminal as well as civil cases are concerned, the respondent cannot be held responsible for the same because it was on account of the act of the Department for which he cannot be held responsible in any manner, therefore, in view of such admitted facts and following the principles as laid down in both the above said judgments as well as in the case of Muhammad Bashir (supra), we are of the opinion that minus the period during which he remained absent from duty i.e. four months, he is entitled to back benefits subject to establishing before the department in terms of Rule 7.3 of CSR that he was not gainfully employed during this period. As far as rest of the period is concerned, he is entitled for back benefits, as it was the Department, which on the basis of a wrong opinion kept him away from not performing his duty, as it is evident from the order dated 13.08.2010 passed by the Revisional Authority, which has already been reproduced hereinabove.
12. For the foregoing reasons, we are of the opinion that there is no conflict in the judgments, which has been cited in the subsequent leave granting order dated 13.3.2012, the principles of both the cases are common, as it has been observed hereinabove. In the cases of such like nature, the Department should have decided the cases, depending upon the facts of each case and as far as the instant case is concerned, the respondent is entitled to get back benefits during the period when he had instituted a revision petition, which was kept pending till the decision of the criminal as well as civil cases, which have no relevance as unless he had been found guilty by the Court, he was not debarred from performing his duty. Therefore, from the date of filing of the revision petition and till its decision he is entitled for back benefits as far as the question of giving him back benefits during the period when he remained absent, it is for the Department to conduct an inquiry and independently decide whether he is entitled for the same or not.
13. Thus, the appeal is dismissed with costs.
(R.A.) Appeal dismissed