2005 PLP 631 (SCMR)

NAZIM HUSSAIN SIDDIQUI, C.J.

This order will dispose of above civil petitions in which common questions of facts and law are involved. In fact, in these matters, petitioners have only impugned paragraph No.28 of judgment of the Federal Service Tribunal dated 5-5-2003 delivered in Appeals Nos.1650 to 1654(K)(CE) of 2001, which reads as under:-- Taking into account the above features of the case, we find legal and factual infirmities with the impugned order and firmly believe that order of termination of service of the appellant is not legally sustainable and does not stand the test of close scrutiny and examination as carried out above. Accordingly, the termination order, dated 7-8-2001 is set aside and the appellant is reinstated into service with effect from the date of his termination from service without back benefits. The intervening period between his termination and reinstatement shall be treated as leave without pay. The respondent department shall be at liberty to institute and complete disciplinary proceedings against the appellant as per law within 6 months of the date of this order under intimation to the Registrar of the Tribunal.

2. It is contended by learned counsel for the petitioners that Tribunal exercised its jurisdiction arbitrarily when it denied consequential benefits to the petitioners, which as a rule ought to have been granted to them after they were reinstated with a finding that order of termination was not legally sustainable. In other words, the contention is that once an employee is reinstated, grant of consequential benefits is a rule and refusal an exception only if it was conclusively proved that the employees remained gainfully employed during such period. In support of his contention, Mr. M.M. Aqil Awan, Advocate Supreme Court relied upon Pakistan v. Mrs. A.V. Issacs PLD 1970 SC 415, Ali Nawaz v. Pakistan Railway 1999 SCMR 1873, General Manager v. Mehmood Ahmed Butt 2002 PLC (C.S.) 982 and House Building Finance Corporation v. Muhammad Ali Gohar Zaidi 2004 PLC (C.S.) 1488.

3. As against above, Mr. Shahanshah Hussain, Advocate Supreme Court, appearing for respondents Nos.2 and 3 submitted that after reinstatement of the petitioners, back-benefits were not allowed to them and the period intervening termination and reinstatement was allowed to be treated as leave without pay and, under the circumstances, view taken by the Tribunal was strictly in accordance with law. He also submitted that the Tribunal allowed the respondents to initiate and complete disciplinary proceedings against the petitioners within six months. He stated that since back-benefits were not allowed, the management did not initiate disciplinary proceedings against the petitioners. He also argued that in the memo. of appeal before the Tribunal the petitioners did not mention that they were unemployed or were not engaged in any profitable activity during the period their services remained terminated. Learned counsel also argued that it is an established legal proposition that an employee, in order to become entitled to back-benefits, has to demonstrate before the original forum that during pendency of appeal, he had not made any earning by engaging himself in any profit oriented activity, either by accepting an employment or doing some business. He submitted that the petitioners had not mentioned in the memo. of appeal filed before the Tribunal about their engagement or commercial activity during the period they remained out of job, as such, the Tribunal was legally justified in not allowing back-benefits for the relevant period.

4. Learned counsel for the petitioners, in rebuttal, submitted that the petitioners filed affidavits before the Tribunal that they remained unemployed and were not engaged in any business activity.

5. As a rule and in the interest of safe administration of justice, question of entitlement of back-benefits has to be agitated before, and determined by, the initial forum. In the instant case, the Tribunal reinstated the petitioners, but did not give them back-benefits. We have examined the affidavits. It is evident that they were not sworn as per rules. Neither date of affidavits nor the date of filing of the same before the Tribunal is given. It appears that they were surreptitiously placed on record.

6. It is not satisfactorily established by the petitioners that during the period of termination of their services they remained unemployed. They cannot take advantage of their own failure. Learned counsel for the respondents referred to Abdul Hafeez Abbasi v. Managing Director, PIA 2002 SCMR 1034 wherein the following was observed:-- (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 the job. Therefore, Federal Service Tribunal had no jurisdiction to grant them back-benefits. Learned counsel stated that in instant appeal, 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 instant 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 a 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 hereinabove expeditiously as far as possible within a period of three months after receipt of this order. (underlining is for emphasis)

7. Under the circumstances, in our view, case for grant of consequential benefits to the petitioners is not made out. No interference is warranted. In consequence, these petitions are dismissed and leave to appeal refused. S.A.K./M-216/S Leave refused.