2007 PLP (C (PLC(CS))

IFTIKHAR MUHAMMAD CHAUDHRY, J.

Listed petitions have been filed for leave to appeal against the judgments, dated 29th July, 2004, 2nd September, 2004 and :7th September, 2004 passed by Federal Service Tribunal, Lahore.

2. Precisely stating facts, necessary for disposal of instant petitions are that the respondents were proceeded against departmentally in pursuance of show-cause notice, wherein it was mentioned that they have failed to achieve the annual target quota of business. The respondents contested the proceedings and offered explanation for not achieving the target quota of business.

3. It may be noted that prior to proceedings, which have given rise to instant petitions, the services of the respondents were terminated for the same reason, as such they approached the Service Tribunal by filing appeals, which were accepted on 7th November, 2000, directing their reinstatement. The petitioner-corporation preferred petitions for leave to appeal before this Court. Similarly, the respondents also filed petitions. Both the sets of petitions were dismissed on 8th March, 2001, as a result whereof the respondents were reinstated into service on 6th February, 2001. In post-reinstatement period, statedly they again could not show their performances during four quarters of the year but before the expiry of the last quarter, they were issued show-cause notices and ultimately their services were terminated. Accordingly, they filed appeals before the Federal Service Tribunal, which have been allowed by means of impugned judgments, whereby they have been reinstated into service without back benefits, as such instant petitions for leave to appeal have been filed by the petitioner-corporation.

4. Learned counsel appearing for petitioner-corporation contended that the Service Tribunal has given relief to the respondents in view of the judgment in the case of Chairman, State Life Insurance Corporation of Pakistan v. Ali Muhammad Bangash (2002 SCMR 936). According to him, this judgment was pronounced in pursuance of compromise between the parties in terms of conditions noted therein, thus it was not applicable. According to him, another judgment of this Court in the case of The Chairman State Life Insurance Corporation of Pakistan and others v. Muhammad Siddique (passed in C.Ps. 1213 to 1215 of 2003 and others) decided on 3rd October 2003, the respondents were held not liable to be reinstated in service as they have failed to achieve the target quota of business under Rule 4(ii), C(1) and (2) of the State Life Employees Service Regulation 1973, on the basis of which performance of the Area Managers is to be reviewed on six monthly basis. Therefore, due to non-achieving the target quota of business, the services of the respondents were rightly terminated.

5. Attention of the learned counsel for petitioner-corporation was drawn towards para-4 of the appointment letter, dealing with the performance standard. According to which, an Area Manager is supposed to achieve the First Year Premium (FYP) in four quarters. Admittedly in the instant cases, before expiry of the 4th quarter, show-cause notices were given to them, alleging therein that they had failed to achieve the requisite quota. Learned counsel was called upon to explain as to how on the basis of assessment/evaluation of the performance of the respondents, before permitting them to complete at least one year, show-cause notices were issued. On this, he sought instructions from Syed Mazhar Kazmi, Assistant General Manger (Legal) and stated that if the respondents are reinstated, enabling them to show performance according to para.4 of the appointment letter during the one year period, the petitioner-corporation has no objection. The respondents, who appeared in person as well as through their Advocates, also conceded to this proposition. However, their claim was that as their services were terminated illegally, therefore, they are entitled to receive the back benefits. In this behalf it may be noted that impugned judgments of the Service Tribunal to this extent is not sustainable because the issue with regard to back benefits was to be adjudged by the Tribunal on the basis of evidence, which was to be produced by the respondents, indicating that when they were out of job, they remained idle and had not been making earnings. It is an admitted position that no such convincing evidence was furnished by the respondents in this behalf, therefore, we are of the opinion that while making directions for the reinstatement of respondents, the Service Tribunal may have left open the question of grant of back benefits, for the decision of department with direction to decide it in the light of evidence which will be produced by them, in view of the judgment of this Court in the case of Abdul Hafeez Abbasi v. Managing Director, Pakistan International Airlines Corporation 2002 SCMR 1034. For convenience, relevant para therefrom is reproduced herein below: "(23) In our considered view benefit of above principle can be extended to an employee if it has been demonstrated by him before the original forum i.e. Federal Service Tribunal that during the pendency of appeal, he had not made any earnings by engaging himself into a profit oriented activity either by accepting an employment or doing some business and such prayer necessarily had to be made in the pleadings. Admittedly in the instant case employees did not mention in the memo. of appeal put up before the Federal Service Tribunal about their engagement in commercial activities during the period when they were out of job. Therefore, Federal Service Tribunal had no jurisdiction to grant them back benefits. Learned counsel stated that in instant appeals, however, they have asserted so and as the appeal is continuation of original proceedings, therefore, such statement of facts made by them be accepted for granting them back benefits. We are afraid that in Civil Appeals the statement so made by the employees about non-making of earnings during the period they remained out of job being statement of fact cannot be accepted. But we may observe that in this behalf even now they can make representation to the competent authority for the redressal of their grievance and if such request is made by them it would be disposed of keeping in view the principle discussed herein above expeditiously as far as possible within a period of three months after receipt of this order." Thus keeping in view the above discussion as well as concession made on behalf of petitioner-corporation, the respondents are directed to be reinstated in service forthwith, enabling them to show their performance according to para-4 of the appointment letter, within a period of one year and in the meantime, they would submit representations for the recovery of back benefits, which will be decided by the competent authority of the petitioner-corporation, after recording evidence, if produced by them, as far as possible within a period of three months. Petitions stand disposed of in above terms. S.A.K./S-95/SC Order accordingly.