2017 PLP (C (PLC(CS)N)

FAISAL ZAMAN KHAN, (Member).

This appeal under Section 5 of the Punjab Subordinate Judiciary Service Tribunal Act (No.XII of 1991) (Act) has been filed impugning Notification No.974/RHC/C-I dated 12.11.2014, whereby representation filed by the appellant for grant of back benefits was declined.

2. Succinctly, the facts of the case are that the appellant was appointed as Civil Judge/Judicial Magistrate on 28.04.2004, due to non-submission of declaration of assets, she was terminated from service on 25.06.2005. After availing departmental remedy, appellant approached this Tribunal through Appeal No.05/2006, which was accepted on 08.04.2011 and she was reinstated in service. As regards her back benefits, it was observed that she may approach the respondent with a representation, which shall be decided within a period of two month. As the appellant was a probationer, after her confirmation in 2014, she filed a departmental representation on 25.07.2014 for grant of back benefits, which was declined vide impugned order, therefore, this appeal.

3. Learned counsel for the appellant submits that the representation filed by the appellant was decided without affording an opportunity of hearing to the appellant, which is violative of principle of natural justice, therefore, the impugned order is not sustainable.

4. Learned counsel for the respondent although admits the fact that no opportunity of hearing was afforded to the appellant, yet he supports the impugned notification.

5. Arguments heard. Record perused.

6. From the perusal of the record as well as admission made by the learned counsel for the respondent it is manifest that no opportunity of hearing was afforded to the appellant prior to dismissal of her representation.

7. The golden principle of audi alteram partem contemplates that no person will be condemned unheard. This principle has also been reiterated in Article 10-A of the Constitution of the Islamic Republic of Pakistan which envisages that every person should be given a right of fair trial and due process. If an employee, who has put forth his/her grievance before the competent authority is not given an opportunity of hearing for explaining his/her position, the same negates the afore-noted principle and the rights guaranteed by the Constitution.

8. There is no cavil with the proposition that the latest pronouncement by the Honourable Supreme Court of Pakistan would suggest that in every case an opportunity of hearing is not a sine qua non. In these pronouncements, the Honourable Apex Court has laid down parameters for the application of principle of audi alteram partem. In case titled Justice Khurshid Anwar Bhinder v. Federation of Pakistan and another (PLD 2010 SC 483) while interpreting the above rule the Honourable Court has identified the circumstances where opportunity of hearing is not required, which are reproduced below: "(i) When an authority is vested with wide discretion

(ii) When the maxim 'expressio unius est exclusio alterius' is involved

(iii) Where absence of expectation of hearing exists

(iv) When compulsive necessity so demands

(v) When nothing unfair can be inferred

(vi) When advantage by protracting a proceeding is tried to be reaped

(vii) When an order does not deprive a person of his right or liberty

(viii) In case of arrest, search and seizure in criminal case

(ix) In case of maintaining academic discipline

(x) In case of provisional selection to an academic course

(xi) In case of enormous malpractices in selection process

"

9. This view has been reinforced and followed in judgments reported as Warid Telecom (Pvt.) Limited and 4 others v. Pakistan Telecommunication Authority through Chairman (2015 SCMR 338) and Gen. (R.) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another [PLD 2014 SC 585].

10. In the present case, the above principle enunciated by the Honourable Apex Court is not attracted, as the case of the appellant does not fall within the exceptions enumerated supra. Since a direction was given by this Tribunal that the representation filed by the appellant qua grant of back benefits will be decided in accordance with law, therefore, deciding the same without affording an opportunity of hearing to her would militate the principle of natural justice, fair trial and due process.

11. For what has been discussed above, we find that the impugned notification is not in accordance with law, therefore, the same is set aside. As a sequel to the above, departmental representation filed by the appellant shall be deemed to be pending before the competent authority who shall re-decide the same strictly in accordance with law after affording an opportunity of hearing to the appellant and all other concerned parties.

12. In the above terms, this appeal is accepted. ZC/9/PST Appeal allowed.