Full Judgment Text & Judicial Ruling

2007 P L C (C.S.) 981

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

HOUSE BUILDING FINANCE CORPORATION and another

Versus

Syed MUHAMMAD ALI GOHAR ZAIDI and others

C.P. L. A. No.528-K of 2005, decided on 10th October, 2005,

(On appeal ffom judgment of Federal Service Tribunal, Karachi dated 17-5-2005 passed in Appeal No.1 154(K) of 1999).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999--‑

----R. 4(1)(b)(v)---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service--Reinstatement---Back-benefits---Entitlement---Service Tribunal ordered reinstatement of employee, but without back- benefits---Supreme Court allowing appeal of employee against withholding of back-benefits, remanded case to Service Tribunal for re-consideration of the matter and assignment of plausible and convincing reasons on question of withholding back-benefits---In post-remand proceedings, no enquiry was conducted by Service Tribunal into question whether employee remained without any job and not doing any lawful business during intervening period, spread over a decade---Service Tribunal neither recorded any oral evidence nor was it recorded on affidavits---Judgment of Service Tribunal, in circumstances suffered from inherent legal defect and was not supported by any material on record .justifying reversal of earlier view of Service Tribunal---Service Tribunal, after remand of case, ought to have called upon parties to adduce evidence, in order to arrive at a definite conclusion whether employee remained totally idle not performing any job and not gainfully employed anywhere else during that period---Such aspect of case was not adverted to at all which had escaped attention of the Service Tribunal---Petition for leave to appeal was converted into appeal and allowed---Impugned judgment was set aside and case was remanded to the Service Tribunal for decision afresh as early as practicable.

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.

Respondent No. 1 in person.

Nemo for Respondents Nos.2 to 4.

Date of hearing: 10th October, 2005.

JUDGMENT

RANA BHAGWANDAS, J.--- Petitioner-management seeks leave to appeal against Federal Service Tribunal judgment dated 17-5-2005 allowing back-benefits to respondent No.1 for the period he remained out of job before his reinstatement.

2. In Civil Appeals Nos.1681 and 1682 of 2003 filed by both the parties against order of reinstatement without back-benefits of the petitioner, this Court vide judgment dated 6-5-2004 allowed the appeal of the respondent in relation to withholding back-benefits thereby setting aside order of the Tribunal depriving him of the back-benefits and directing treatment of intervening period as "leave of the kind due". The appeal was remanded to the Tribunal for re-consideration of the matter and assignment of plausible and convincing reasons on the question of withholding the back-benefits. Appeal of the petitioner-management challenging reinstatement of the respondent was, however, dismissed.

3. From the trend of arguments advanced by Mr. Abdul Mujeeb Pirzada, learned Advocate Supreme Court for the petitioner and not controverted by the respondent, it is evident that, in post-remand proceedings, no enquiry was conducted by the Tribunal into the question whether the respondent remained without any job and not doing any lawful business during the intervening period, .spread over a decade, inasmuch as, neither any oral evidence was recorded by the Tribunal nor was it recorded on affidavits. The judgment of the Tribunal, thus, surfers from inherent legal detect and is not supported by any material on record justifying the reversal of the earlier view of the Tribunal. It is our considered opinion that after the remand of the case, the Tribunal ought to have called upon the parties to adduce in order to arrive at a definite conclusion whether the respondent remained totally idle, not performing any job and not gainfully employed any where else during this period. This aspect of the case was not adverted to at all and escaped the attention of the Tribunal, which can hardly be appreciated.

4. For the aforesaid facts and reasons, the impugned judgment cannot be sustained in law with the consequence that the petition is converted into appeal and allowed. Impugned judgment is set aside and case is remanded to the Tribunal for decision afresh in the light of observations recorded hereinabove.

5. Since the parties have been litigating for more than a decade hopefully the Tribunal shall decide the issue afresh as early as practicable and preferably within a period of six months. No order as to costs.

H.B.T./H-2/SC Case remanded.

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