2009 PLP (C (PLC(CS))

JUSTICE (R) TANVIR BASHIR ANSARI (CHAIRMAN).

This appeal is directed against the non-payment of back-benefits from 8-12-2000 (date of removal from service) uptill his order of reinstatement as orders by this Tribunal vide judgment, dated 28-2,-2003.

2. Briefly the facts are that the appellant was employed as Charge Nurse when he was subjected to disciplinary action on the ground of misconduct. The disciplinary action culminated in the order, dated 8-12-2000 of removal from service. The appellant filed Service Appeal No.73(K)(C.S.) of 2001. The said appeal was decided by this Tribunal vide judgment dated 28-2-2003. The impugned order was set aside, the respondents were directed to reinstate the appellant "on the same position from which he was removed from service" and to hold fresh inquiry within four months. The question of back-benefits was to depend upon the result of the de novo inquiry.

3. As per the record the fresh inquiry was conducted. In this context memo. dated 27-6-2003 is important. The relevant extract from the said memo. is-reproduced as under:

"As per inquiry report he is found guilty of misconduct being admitted the charge of misbehaviour with his superiors. Taking a lenient view this time, he has been reinstated in the Government service w.e.f. 26th June, 2003 and is kept under observation for a period of 3 months."

4. The appellant felt aggrieved of the said memo. at least for two reasons; (i) that the charges were not proved against the appellant in the de novo inquiry; and (ii) that it is incorrect to state that the appellant had admitted his guilt as wrongly stated in the said memo.

5. The appellant filed his departmental appeal to claim back-benefits from the date of his original removal from service up to the date of his reinstatement, as the same was to be treated as on duty. The refusal of his claim led to the filing of the present appeal.

6. We have heard the learned counsel for the parties and have extensively perused the record. The original order of removal from service dated 8-12-2000 was squarely set aside by this Tribunal as the disciplinary proceedings culminating in the same was in gross violation of law and principles of natural justice. Consequently, the appellant was directed to be reinstated in service although the respondents were directed to hold a fresh inquiry within four months. According to respondents the fresh inquiry did take place and culminated in the office order, dated 25-6-2003, memo. dated 27-6-2003 and another office order dated 27-6-2003. Although full opportunity was given to the respondents to furnish parawise comments yet neither along with the said comments nor at any relevant time during the course of hearing did the respondents furnish a copy of the second inquiry report. It was a legal obligation of the respondents to have produced the said documents in order to justify their conclusion that misconduct was established against the appellant during the inquiry or that the appellant had admitted the charge of misbehaviour during the same. We also find a request made by the appellant on 8-7-2003 for supply of the inquiry report. Surprisingly, vide memo. dated 18-7-2003 the said request was rejected.

7. There is thus no material on the record which could justify the conclusion of the respondents either that the charges were proved during the inquiry proceedings or the appellant had admitted the charge of misbehaviour.

8. We have also noted that this Tribunal had directed the reinstatement of the appellant in no uncertain terms. Although it is correct that the question of back-benefits was to depend on the report of the fresh inquiry, we have not been supplied either a copy of the fresh inquiry proceedings or a copy of the fresh inquiry report. The appeal is pending since 2003 and even till the date of final hearing of the appeal, the respondents had failed to file the record of proceedings or place the said documents on the record. The failure to provide the same leads to an adverse assumption against the respondents that if the said documents were placed on the record they would have affected adversely the interest of the respondents.

9. We are also fortified in our view by the fact that even after the fresh inquiry the appellant was allowed to be reinstated. In such circumstances, the reinstatement shall be accompanied by an order of full back-benefits for the entire period that an official has been prevented to perform duty in Government service. We are supported in our view by the judgment of this Tribunal reported in Syed Abid Hussain Shah v. Karachi Electric Supply Corporation and another 2004 PLC (C.S.) 1003. The relevant portion is reproduced as under:

"Enquiry proceedings/report.

Non-production before the Tribunal raises strong presumption that either enquiry was not held and if held, was not properly held conversely if produced, would go against the employer." Reliance is also placed on Muhammad Hussain v. E.D.O. Education and others 2007 PLC (C.S.) 560 (Supreme Court of Pakistan) to the effect that grant of service back-benefits to an employee who has been illegally kept away from the employment is the rule and denial of such benefits to such a reinstated employee is an exception upon the proof that such an official had remained gainfully employed during such a period. There is nothing on the record to suggest that the appellant remained gainfully employed till his reinstatement with the respondents.

9. In view of the above, the appeal is accepted and the respondents are directed to pay full benefits to the appellant from the date of his removal from service i.e. 8-12-2000 uptill his reinstatement in service.

10. No order as to costs.

11. Parties be informed. H.B.T./17/FST???????????????????????????????????????????????????????????????????????? Appeal accepted.