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Petitioner: INSPECTOR-GENERAL OF POLICE, PUNJAB VS Respondent: TARIQ MAHMOODHonorable Justice Iftikhar Muhammad ChaudhryJawwad Hassan,Aftab Alam
2015 P L C (C.S.) 366
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, C.J., Tassaduq Hussain Jillani, Amir Hani Muslim, Gulzar Ahmed and Sh. Azmat Saeed, JJ
INSPECTOR-GENERAL OF POLICE, PUNJAB---Appellant
Versus
TARIQ MAHMOOD---Respondent
Civil Appeal No. 52 of 2012, decided on 25th April, 2013.
(On appeal from the judgment dated 20-10-2011 of the Punjab Service Tribunal, Lahore passed in Appeal No.3039 of 2010)
Civil Service Rules (Punjab)---
----R. 7.3---Fundamental Rules, R. 54---Reinstatement in service---Back benefits, entitlement to--- Payment of back benefits on reinstatement in service---Scope---Police official was dismissed from service due to registration of F.I.R. and civil suit filed against him---Police official filed revision petition before the Inspector General of Police, which was kept pending till the decision of F.I.R. case and civil suit by the court---Subsequently police official was acquitted from the F.I.R. case and as a result his revision petition was allowed and he was reinstated in service---Service Tribunal allowed payment of back benefits to the police official for the period during which he remained out of service---Validity---Grant of back benefits to an employee who was reinstated by a Court/Tribunal or the department was a rule and denial of such benefits was an exception on the proof that such person had remained gainfully employed during such period---Entitlement of back benefits of a person had to be determined on the basis of facts of each case independently---Police official could not be held responsible for the period during which his revision petition was kept pending due to the F.I.R. and civil suit, because such pendency was on account of the act of the police department---Revision petition filed by police official was kept pending till the decision of the criminal as well as civil case, which had no relevance because unless he had been found guilty by the Court, he was not debarred from performing his duty---Police official was entitled to back benefits, as it was the police department, which on basis of a wrong opinion kept him away from performing his duty---Police official was entitled to back benefits from the date of filing revision petition till his reinstatement in service---Appeal was dismissed accordingly.
Muhammad Hussain and others v. EDO (Education) and others 2007 SCMR 855; Federation of Pakistan through Secretary, Ministry of Education and others v. Naheed Naushahi 2010 SCMR 11; 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; Muhammad Bashir v. Secretary to the Government of Pakistan 1994 SCMR 1801 and Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 ref.
Jawwad Hassan, Additional A.-G. for Appellant.
Aftab Alam, Advocate Supreme Court for Respondent.
Date of hearing: 25th April, 2013.
JUDGMENT
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) N.-W.F.P., etc. v. Syed Jaffar Shah (2009 PLC (C.S.) 47). Leave is granted inter alia to consider the issue raised."
2. On 13th March, 2012, the learned 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 F.I.R. No.52/1992 under sections 109/419/420/468/471, P.P.C. at Police Station Lower Mall, Lahore. Due to registration of the criminal case he was placed under suspension on 6-7-1992 w.e.f. 29-6-1992. 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 28-7-1992 and 30-8-1992 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.
4. The respondent had been facing trial before the learned Magistrate in pursuance of the above-referred F.I.R. 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 F.I.R. 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 N.-W.F.P. through Secondary Food, Agriculture Live Stock and Cooperative Department Peshawar and 2 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 13-8-2010. 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 F.I.R. No.52/92 under sections 419/420/468/471, P.P.C., Police Station Lower Mall, Lahore and absence from duty for a period of about 4 months. His appeal was rejected by the appellate authority vide order No.16150-51/AC, dated 21-4-1993.
(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 11-5-2010.
(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 13-2-1994 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 1-3-2010 by Magistrate Section-30, Lahore, vide which he has been acquitted in case F.I.R. No.52/92 under sections 419/420/468/471, P.P.C., Police Station 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, Lahore and 2 others (1994 SCMR 1801).
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 26-6-1986 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:--
F.R. 54
7.3 Civil Service Rules (Punjab)
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...
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, 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
(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. 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.
(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 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.
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 (SL No.154), which states, inter alias, that, in accordance with the Supreme Court's judgment in C.A. 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
(Annex)
(Extract of paras,4 and 5 of the Finance Division letter No.F.1(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 corning 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 Mansoor-ul-Haq's lien by stating that the same will be maintained by PACO, a borrowing…
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