2008 PLP (C (PLC(CS))

JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN).

Appellant while serving as Accountant in Sindh Local Government and Rural Development Academy, Tando Jam was proceeded against departmentally on the allegations of misconduct, shortage of stores and absence from duties on various dates and by order, dated 15-11-1983 he was awarded major penalty of dismissal from service by the Director-General, Rural Development Department, Sindh, Karachi. Against which appellant filed departmental appeal to the Secretary, Government of Sindh, Local Government Department, Karachi, which by order, dated 7-5-1994 was allowed and appellant was reinstated in service. However, the said order was silent so far grant or otherwise of back-benefits, for which appellant submitted an appeal/representation and on getting no response, he earlier filed Appeal No.239 of 2001 before this Tribunal, which with the consent of parties' counsel, was disposed of vide order, dated 10-1-2004 directing the respondent No.2 to decide appellant's pending departmental representation. Since no order was passed on such representation for quite considerable time appellant has earlier filed miscellaneous application in Appeal No.239 of 2001 for implementation of earlier order, the said miscellaneous application was disposed of on 13-12-2004. Finally, by order, dated 11-11-2005 the intervening period of appellant was decided as under: (i) From 30-12-1981 to 14-11-1983 i.e. the period of suspension to pay dismissal As spent on duty on full. (ii) From 15-11-1983 to 6-5-1994 i.e. period of dismissal to reinstatement As leave on due basis. Feeling aggrieved, appellant has filed the instant appeal with a prayer that for the intervening period from 15-11-1983 to 6-5-1994 he may be allowed all the financial and consequential benefits.

2. In support of appeal, learned counsel for the appellant while relying upon (i) PLD 1990 SC 787, (ii) 1999 SCMR 1873, (iii) 2003 SCMR 1108 and (iv) 2006 SCMR 421, argued that appellant's dismissal order was declared as illegal by the Appellate Authority and he was reinstated in service vide order, dated 7-5-1994 and that appellant remained out of job without any fault on his part and that during the intervening period also appellant was not gainfully employed anywhere and in this regard he has already filed an affidavit, therefore, in view of settled principle of law appellant is lawfully entitled to all the back and consequential benefits.

3. In rebuttal learned Assistant Advocate-General while referring the documents placed on the record by respondent No.2, contended that appellant has already been given much more benefit by the department than his entitlement by treating period from dismissal to reinstatement of nearly 10 years as leave of kind due, although appellant was not entitled to the same. She added that appellant was placed under suspension on 26-12-1981 and during suspension period he was supposed to attend the office but he chose to remain absent at his own accord till the date of dismissal from service on 15-11-1983 but that period has already been treated as spent on duty. So far period from date of dismissal till the date of reinstatement on 6-5-1994 the same has been treated as period of leave on due basis, although during that period appellant remained out of country at U.A.E. where he earned his livelihood, thus no injustice has been meted out to appellant, therefore, the relief claimed by appellant is beyond his entitlement and appeal may be dismissed.

4. We have considered the above submissions, perused the case papers and have gone through the case-law referred to by learned counsel for appellant. Perusal of the record reveals that Director-General, Sindh, Local Government and Rural Development Academy, Tando Jam in his letter, dated 31-1-2005 addressed to the Additional Chief Secretary, Local Government Katchi Abadies and Spatial Development Department, Sindh, Karachi, has given full details. In page 2 (para.4) of the letter it has been mentioned that "it is crystal clear that Mr. Gul Shabir Khatian, appellant, avoided the inquiry and did not bother to receive the process of attendance, his explicit and express desire to proceed abroad is a clear proof that he did not want to serve in the Academy". It has also been mentioned that during the period of suspension (from 26-12-1981 to 14-11-1983) appellant remained absent although he was supposed to attend the office daily. In page 3 (para.5) it has been stated "it is pertinent to point out that on 29-1-1982 Mr. Gul Shabir Khatian, Ex-Accountant had applied for extraordinary leave for five (5) years to visit U.A.E. for the purpose of earning livelihood and he had already got visa as pointed out by him (copy enclosed)". This makes it clear that appellant was not in Pakistan during the said period but was abroad for the purpose of earning livelihood.

5. From the contents of above letter it is clear that despite the fact that appellant during the period of his suspension from 26-12-1981 to 14-11-1983 remained absent although he was supposed to attend the office daily, yet the said period has been treated as spent on duty. Besides, it appears that appellant had obtained visa for U.A.E. the copy of which he also produced before the Director-General, Local Government and Rural Development Academy, Tando Jam. However, it is not clear as to when appellant proceeded to U.A.E. and for how much period he remained at U.A.E. and when he returned. It is also not clear whether appellant had in fact proceeded to U.A.E. If appellant was out of Pakistan to earn his livelihood, then naturally, he would not be entitled to the pay/salary for the period he remained abroad. This question requires full-fledged inquiry. Appellant was dismissed from service in November, 1983 which order he challenged in departmental appeal within stipulated period. The said departmental appeal remained pending for over a decade. In any case, this too requires thorough probe at the departmental level.

6. Accordingly, the matter is remanded to respondent No.2 to conduct full-fledged inquiry either himself or through any other officer nominated by him, to determine; whether appellant had ever gone abroad to earn his livelihood, if yes, when and for what period and whether appellant remained idle without any private job for such a long period of over a decade and whether the Visa of U.A.E. obtained by appellant (photstat copy of which he already produced before the D.G. Rural Development Academy, Tando Jam) was materialized. The respondent No.2 should also conduct inquiry, why appellant's departmental appeal remained pending for such a long period of over decade. On conclusion of inquiry, respondent No.2 should pass fresh order in the light of inquiry report. This exercise must be completed within 90 days from the date of receipt of copy of this judgment. Appeal is remanded. Parties are left to bear their own costs.

7. Announced in open Court. H.B.T./9/SST Case remanded.