1989 PLP 720 (PLC)

(a) Industrial dispute‑‑ ‑‑‑ Retirement from service‑‑Justice to be done to the retiring employee in accordance with law with regard to benefits which had accrued to him on close of his career‑‑Case of retiring officer deserves to be decided after observing all norms, principle of fairplay and proper opportunity to said official to enable him to substantiate his plea‑‑Mere passions should not govern the fate of retiring official at the cost of public exchequer. (b) Industrial dispute‑‑ ‑‑‑ Back benefits‑‑Authority not taking into consideration entire material available on record while deciding question of granting back benefits to appellant‑‑Case was remanded back to Authority for decision afresh in accordance with law within specified time. Appellant in person., JUDGMENT MUHAMMAD AFZAL LONE, J.‑‑The brief facts relevant for the purposes of decision of this I.C.A., are, that at the relevant time the appellant was working as Ward Keeper in the Railway Department. After consideration of his case by the Ministry of Railway, vide Order No. 765‑E/2‑III (E.V.) (Annexure B), dated 28‑6‑1979 issued by the Chief Personnel Officer, the appellant was granted pro forma promotion as under:‑ "(a) Mr. Allauddin Babri may be treated to have been promoted as S.S.K.P., w.e.f. 1‑4‑1963. (b) He may be treated to have been promoted as Jr. D. S. K. P. w.e.f. 2‑10‑1972. (c) He may be allowed arrears of pay on the above basis and granted annual increments accordingly. In view of the above decision Mr. Allauddin Babri should be posted as Jr. D.S.K.P. forthwith against existing vacancy or by reverting junior most officiating person. The matter regarding his promotion for the preceding period may be regularised if vacancies in the relevant posts were available otherwise supernumerary posts as required should be created to admit his claim of back benefits." Due to some litigation to which the appellant was a party this order was not implemented. However, there are indications on the file that the Chief Personnel Officer expressed his concern on the non‑implementation of the order Annexure `B', with the result that the General Manager (Personnel) by his letter No. 756‑E/2‑III (JPO‑VI), dated 10‑8‑1982 wrote to the District Controller of Stores (Shops Depot), Pakistan Railways, Moghalpura as under:‑‑ "The points raised in your notes cited above and the correspondence referred to therein have been considered and it has been decided that the orders of pro forma promotion of Mr. Allauddin Babri issued vide this office letter No. 756‑E/2‑II1 (E.V.), dated 28‑6‑1979 should be implemented forthwith under intimation to this office. This issues with approval of C.P.O."

2. It appears that in the meanwhile the appellant became due for promotion as Senior D.S.K.P. (Grade‑14) and he approached the General Manager (Personnel) in this behalf who acceded to his request. This is obvious from the General Manager's letter No. 756‑E/2‑1I1 (JPO/VI), dated 15th December, 1982 reproduced below:‑‑ "Further to this office letters of even number dated 28‑6‑1979. 9‑12‑1981, 10‑8‑1982, Mr. Muhammad Allauddin Babri, Wardkeeper has also been allowed pro forma promotion as Senior D. S. K. P. (Grade‑14) w.e.f. 7‑3‑1976, pending selection/D.P.S. with all back benefits in respect of payment of arrears and annual increments and posted against an existing vacancy or by reverting the junior‑most officiating Sr.D.S.K.P. Note.‑‑The promotion of Mr. Babri has been made provisionally subject to the condition that his ad hoc promotion and seniority as Sr. D.S.K.P. will be without prejudice to the adjustment of claim of any seniors as and when seniority list of Wardkeepers is prepared according to the orders which may be passed by the Court (N.I.R.C.) which matter is sub judice at present and without prejudice to the decision of the Full Bench N.I.R.C. This has the approval of the General Manager. The above orders should be implemented forthwith under advice to this office."

3. It is discernible from Annexure `F/1' that in consequence of this direction the amount due to the appellant as arrears of pay, was computed and fixed at Rs.1,29,370 by the District Controller of Stores under whom the petitioner was working then. But the amount was not paid to him and the General Manager (Personnel) subsequently issued letter No. 756‑E/2‑III (20‑I), dated 23‑7‑1983 (Annex. `H') which runs as under:‑‑ "Sanction is accorded by Chief Personnel Officer, with the concurrence of EA. & C.A.O. to the creation of the following supernumerary posts for the period given against each to accommodate the abovenamed employee for pro forma promotion for the purpose of fixation of pay in respect of pensionary benefits only: (1) S.S.K.P. NSP‑9 = 1‑4‑1963 to 1‑10‑1972 (2) Jr.D.S.K.P. NLP‑11 = 2‑10‑1972 to 6‑3‑1976 (3) Sr.D.S.K.P. NSP‑14 = 7‑3‑1976 to 30‑12‑1982 This supersedes this office letter of even No. dated 15‑12‑1982."

4. It is obvious that under the last directive the payment of arrears of his salary, etc. was denied to the appellant and pro forma promotion was allowed merely for the purposes of fixation of his pay for grant of pensionary benefits claiming that refusal to pay the back benefits was unlawful the appellant invoked the writ jurisdiction of this Court but his Writ Petition No. 2138 of 1984 was dismissed by the‑ learned Single Judge on 28‑1‑1985. This dismissal is under challenge in this I.C.A.

5. We have heard the appellant who appeared in person as well as the learned counsel for the Railway at a considerable length and have also perused the Departmental record, placed before us on behalf of the respondent‑Railway.

6. We have given to the matter our anxious consideration. The reasons which prevailed with the learned Single Judge in refusing to grant relief to the appellant was that the appellant who was to retire on 30‑12‑1982, in an interview with the General Manager on 9‑12‑1982 had agreed to forego the arrears of pay. In the opinion of the learned Single Judge it was on the basis of the relinquishment of rights that the General Manager gave a direction for his pro forma promotion without the back benefits. In the impugned order it was further observed that the order dated 15‑12‑1982 as to the payment of back benefits to the appellant, was issued erroneously and he could not be permitted to take benefit out of this error. The decision under appeal seems to have been largely inf7ucaced by the note dated 11‑12‑1982 recorded by the Chief Personnel Office: at pages 54‑55 of the noting part of File No. 756‑E/2‑IIl (Section P.O.I) maintained in Railway Head Quarter Office. It will be advantageous to quote hereunder this note in extenso:‑ Mr. Babri was granted an interview by the G.M. on 9‑12‑1982 in which he explained leis case; threadbare and vehemently complained about the injustice being done to him by the officers of the Stores Department. He drew attention to C.P.O's letter at S.No 40 which had specifically laid down that he should be promoted as S.S.K.P. from 1‑4‑1962 and Junior D.S.K.P. from 2‑10‑1972 but these orders had not been carried out by the Stores Department for the last three years on one pretext or the other. The G.M. has decided that Mr. Babri should be given his due promotion but no arrears of pay will he given. Mr. Babri agreed to forego his claim for arrears of pay. Legal Advisor was asked by the G.M. to draw up a letter to he signed by Mr. Babri in this connection. Mr. Babri should be given promotion according to his seniority, by virtue of which he is likely to be promoted to the post of D.S.K.Por Senior D.S.K.P. He is going to retire by the end of this month and it is, therefore, imperative that immediate action is taken to give him due promotion."

7. From the note aforesaid it is obvious that the consent of the appellant had to be obtained in writing and the legal Advisor of the Railway had to draw up a letter in this behalf. We asked the learned counsel for the Railway Department to substantiate before us that the Legal Advisor had in fact drawn up the letter and that it was signed by the appellant in token of relinquishment of his right to the pay benefits but he was unable to produce any such letter or undertaking signed by the appellant. On the other hand the appellant emphatically denied to have agreed to such arrangement or given any undertaking, in terms of the aforesaid note. Unless such a relinquishment is found in the departmental record, the view taken by the learned Single Judge cannot be upheld.

8. While we intend to ensure that justice is done to the retiring employee in accordance with law and he is not arbitrarily or unjustly denied the benefits which accrued to him on the close of his career, we are not unmindful of the fact that mere passions should not govern the fate of the case at the cost of the public exchequer. We have carefully examined the Departmental file. It is painful to note that the record is replete with confusion and the case does noc appear to have been examined by the authorities below in its true perspective. There are matters and material which were not adverted to by them and also not brought to the notice of the learned Single Judge. The right of retiring official deserves to be decided after observing all norms, principle of fairplay and proper opportunity to the affected person to enable him to substantiate his plea. But the instant case has been dealt with by the Department on somewhat casual approach, seemingly rested on inchoate noting and correspondence between various sections of the Railway Department without giving proper opportunity of hearing to the appellant. In the circumstances of the case, we would refrain from launching an inquiry and. adjudicating upon issues left undetermined by the Tribunals below. Reference in this connection may be made to Sved Azmat All v. Chief Settlement and Rehabilitation Commissioner P L D 1964 S C 260, wherein it is ordained:‑ Where a superior Court calls for the record of judicial or quasi-judicial authorities or Tribunals, which are not subject to its appellate jurisdiction, the superior Court no doubt has the full power to do justice but does not as a rule even in a case where it does interfere, substitute its own decision for the decision of the inferior authority or Tribunal. When a it is felt that questions have been left undecided by such Tribunal or authority or a question has to be decided after the taking of fresh evidence, it is more appropriate to return the case to the authority or Tribunal concerned for a decision in accordance with law, after quashing the order complained against "

9. We are satisfied that while deciding the question of granting back benefits to the appellant, the Railway authorities have not taken into consideration the entire material available on the record. The matter needs thorough re‑examination. For all these reasons this I.C.A. is accepted, the impugned order of the Railway Authorities, is declared to have been passed without lawful authority and of no legal effect. The case is sent back to the Department with the direction that the matter shall be decided afresh expeditiously, preferably within a period of four months, in accordance with law, after giving the appellant an opportunity of to teeing heard. In the circumstances of the case there shall be no order as to costs. AA./M‑1307/L Case remanded.