1991 PLP 1502 (SCMR)

AJMAL MIAN, J.‑‑‑Leave to appeal is sought against the judgment dated 8‑2‑1990 passed by the Federal Service Tribunal, Islamabad, hereinafter referred to as the Tribunal, in Appeal No. 442‑R of 1989 filed by the petitioner, dismissing the same. The facts to be noted are that the petitioner was working as an Assistant Foreman in the Pakistan Ordnance Factories, Wah. He was dismissed from service on the ground of remaining absent in spite of refusal to grant leave. He filed Service Appeal No.82(R)/87 which was allowed by the Tribunal by its order dated 14‑9‑1988, the operative portion of the order reads as follows:‑ " .....In these circumstances the appeal is partly accepted and it is directed that the appellant should be reinstated in service. Back benefits will, however, not be allowed to him.

6. As the appeal has been partly accepted on technical grounds, the department will be at liberty to hold a fresh enquiry against the appellant." The petitioner, being aggrieved by the portion of the above order whereby he was declined back benefits, filed a petition for leave to Appeal No.26‑R/89 in this Court, in which reliance was placed on the respondent's letter dated 25‑2‑19,89 whereby the petitioner was reinstated subject to the condition that he would not claim the back benefits as per decision of the Service Tribunal. It was also stated that no action was being taken against him for his previous absence despite the fact that the Tribunal in its aforesaid order permitted the respondent to do so. This Court while dismissing the above petition for leave commented upon the above order as follows:‑ "

5. The Darned counsel brought to our notice the subsequent order passed by `the authority whereby it decided not to proceed with the charges and to end the matter. That order is subsequent to the order of the Tribunal, and independently creates an entitlement for the plaintiff to seek redress against that order like any other departmental order. This petition cannot take into consideration subsequent orders passed by the competent authority for reopening the order competently passed by the Service Tribunal. Section 9 of the Civil Servants Act justifies and the existence of charges protects the order of the Service Tribunal denying the remuneration for the interregnum when there was no legal decision of the competent authority available on the charges." After the above decision, the petitioner approached the Service Tribunal for the back benefits on the ground that, since the charge was not pressed against him, it should be presumed that he was exonerated from the charge and, therefore, was entitled to the back benefits under Fundamental Rule 54 but the Tribunal declined the same by the impugned judgment. We have heard Mr. A.Wahab‑Alkhairi, learned A.S.C. appearing for the petitioner. We are inclined to grant leave to consider the question, whether the factum that the respondent deckled not to press the charge against the petitioner, entitled him to the back benefits under Fundamental Rule

54. Leave is accordingly granted. The appeal shall be prepared on the basis of the present record with the direction to the parties to file additional documents, if any, necessary for the disposal of the appeal. A.A./M‑1393/S ????????????????????????????????????????????????????????????????????????????????? Leave granted.