2004 PLP (C (PLC(CS))

Through this Constitutional petition the petitioners seek a direction to the respondents to make the payment of salaries to them for the period intervening the termination order and that of their reinstatement in service, i.e. the date of their joining.

2. Brief facts of the case are that the petitioners Nos. 1 to 6 were appointed as Goods Exit Tax Clerks while petitioners Nos.7 to 9 were appointed as Naib Qasid in Zila Council, Sahiwal. The petitioners performed their duties honestly and they were regularized accordingly on the recommendations of the Selection Committee of Zila Council, Sahiwal. The Government of Punjab had issued a direction for termination of the employees appointed during ban vide Notification dated 1‑8‑1991 whereupon petitioners were terminated from service. However, later on, the Government of the Punjab, the Local Government and Rural Development Department issued Notification dated 9‑2‑1992 addressed to all the Chairman of Zila Council, Municipal Committees and Town Committees in the Punjab to reinstate all the officials whose services were terminated in consequence of earlier Notification dated 1‑8‑1991. The petitioner also applied for their reinstatement, but their applications were not decided. Hence, the petitioners feeling aggrieved were constrained to file writ petitions bearing Nos. 171 of 1993, 274 of 1993, 3010 of 1993 and 3325 of 1993 in this Court which were accepted and most of the petitioners were reinstated in service w.e.f. 23‑11‑1993 from the date of their joining and the petitioners started their duties according to the satisfaction of their superiors but back‑benefits had not been paid to the petitioner, hence, they filed this writ petition.

3. Learned counsel for the petitioners contends that the petitioners' services were terminated without assigning any reason and this Court having come to the conclusion that the order was illegal and unlawful, the petitioners were entitled to the back‑benefits as well as they were not employed anywhere during the intervening period. It is further contended that the refusal of the respondents to make the payment of salaries to the petitioners as back‑benefit is illegal order and it may be set aside.

4. On the other hand, learned counsel appearing on behalf of the respondents opposes this petition on the ground that the petitioners in the earlier writ petitions had also prayed for the grant of back‑benefits but this Court did not grant the same and second petition on the same subject is not maintainable. It is further contended that respondents are not bound to make the payment of back‑benefits as it was not directed by the Court at the time of setting aside of the termination order. Relies upon 1991 SCMR 2087, 1992 SCMR 2169 and PLD 1990 SC 787 in support of his contentions.

5. I have heard the learned counsel for the parties and also perused the record. The petitioners were admittedly appointed by the respondents and they were terminated from service without holding any inquiry only on the basis of a general Notification dated 1‑8‑1991 issued by the Government of Punjab but subsequently vide Notification dated 9‑2‑1992 the Government of Punjab withdrew the earlier Notification and directed for reinstatement of the employees. The petitioners were not, however, reinstated and they were constrained to file above said writ petitions, in this Court. The stand taken by the respondents was that they were appointed during the ban but this Court declared the said order to be illegal and unlawful being hit by the natural justice and direction was issued for the reinstatement of the petitioners as the orders for their termination from service were passed by the respondents without affording any opportunity of hearing to the petitioners and also without holding any inquiry in spite of the fact that the services of the petitioners were regularized.. Mere non‑mentioning of the payment of back‑benefits in the earlier orders passed by this Court on the Writ petitions filed by the petitioners is not sufficient to disallow the petitioners the back- benefits as the termination orders passed against them were declared as illegal. According to order dated 4‑12‑1993 (Annexure‑E) the petitioners were re‑instated. As the petitioners were reinstated and the orders for termination of their services were declared as illegal the respondents were duty bound to make the payment of back‑benefits to the petitioners as their services were terminated not due to their fault, but the respondents were responsible for their appointments during ban.

6. The contention of the learned counsel for the respondents is that in the earlier writ petition too, said prayer was made, but as the Court did not order for payment of back‑benefits to the petitioners, they are not entitled to receive the same and second writ petition on the same subject is not maintainable. Admittedly the prayer for grant of back‑benefits to the petitioners was not attended to while making orders for their reinstatement in the earlier writ petitions by this Court and if no order was passed for grant of back‑benefits, the same was also not refused specifically. Hence, the second writ petition is maintainable.

7. The case‑law cited by the learned counsel for the respondents is not applicable to the facts and circumstances of the present case. In "General Manager National Radio Telecommunication Corporation, Haripur v. Muhammad Aslam and 2 others" 1992 SCMR 2169), the employee was refused back‑benefits as there was nothing on the record to show that respondent No. 1 was not doing any job after his services were terminated and the services of the said employee were terminated on the basis of misconduct. However, in the case in hand the services of petitioners were terminated not on the bass of misconduct, but they were ousted from service on the basis of general order issued by the Government of Punjab on 1‑8‑1991, which was declared by this Court to be illegal and unlawful and the petitioners were ordered to be reinstated. Learned Counsel for respondents has also placed reliance on "Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore & others" (1991 SCMR 2087) to contend that Hon'ble Supreme Court had laid down the principle, that back‑benefit do not automatically follow the order of reinstatement when the order for removal or dismissal from service had been set aside. I have perused the whole judgment. In the same the Hon'ble Supreme Court held that if the conduct of the workman (employee) was not blameless and this contributed to the loss caused to the management or whose conduct was partly responsible for his removal from his service, is not entitled to the grant of back‑benefits. The same is not applicable to the present case. Rather it remotely supports the case of the petitioners that as they were terminated from service not due to their fault, they are entitled to the grant of tack‑benefits. PLJ 1973 SC 377 relied upon by learned counsel for respondents is also not applicable to the facts and circumstances to the present case.

8. In the light of foregoing discussion, the instant writ petition is accepted and the respondents are directed to make the payment of back- benefits to the petitioners as prayed for within two months from the receipt of this order. M.A.W./M‑182/L Petition accepted.