' CH. IJAZ AHMED, J.--- We intend to decide the captioned petitions by one consolidated judgment having similar facts and law arising out of the same common impugned judgment, dated 25-5- 2006 wherein the orders of the respondents dated 30-3-2004 were upheld.
2. Detailed facts have already been mentioned in the impugned judgment. However, necessary facts out of which the present petitions arise are that petitioners were appointed as PTC Teachers.
The competent authority had initiated disciplinary proceedings against the petitioners and finally the competent authority awarded major punishment of compulsorily retirements to the petitioners.
Petitioners challenged the orders of their compulsorily retirements by filing representations before the respondents, approaching the learned High Court wherein learned High Court directed the respondents to reinstate them. Respondents were allowed to initiate fresh inquiry proceedings against the petitioners. Respondents reinstated them without back benefits vide order, dated 30-3- 2004 after conducting fresh inquiry in view of the recommendations of the Enquiry Officer.
Petitioners being aggrieved filed representations before the competent authority against the said order. The respondents failed to decide their representations. Petitioners filed appeals before the Service Tribunal which were dismissed vide consolidated judgment dated 4-5-2005 as time- barred. Petitioners being aggrieved filed C.Ps. 11-86 to 1193-L of 2005 which were converted into appeals and allowed. The impugned consolidated judgment, dated 4-5-2005 was set aside. The appeals filed by the petitioners are pending before the Punjab Service Tribunal. The learned Service Tribunal after remand dismissed their appeals vide impugned judgment, dated 25-5-2006. Hence, these petitions.
3. The learned counsel for the petitioners submits as under:-- "Grudging against refusal of the back benefits, consequent upon reinstatement in service by the Punjab Service Tribunal inherently for the reason that the factum of having not remained gainfully employed during the interregnum has remained unspelt out in the memo. Of appeal, captioned petitions have been recoursed contending that the same was specifically asserted in para.15 thereof, which has escaped notice of the Tribunal."
4. The said petitions were fixed before this Court on 2-11-2006. In view of aforesaid contentions of the learned counsel for the petitioners, notice was sent to the respondents. Thereafter the petitions were fixed before this Court on 2-3-2007 which were adjourned on the request of Law Officer who sought adjournment to secure instructions from the department which was allowed and office was directed to relist the petitions in the next week with a right to the parties to supplement the record with further documents if they deem appropriate. It is pertinent to mention here that both the parties have not supplemented the petitions with further documents.
5. The learned Law Officer has supported the impugned judgment. He maintains that learned Service Tribunal was justified to dismiss the appeals as the petitioners had not attached documents with their appeals to who that they were out of job. In support of his contention, he relied upon Mansoor-ul-Haq's case 2004 SCMR 1308.
6. We have considered the submissions made by learned counsel for the parties and have perused the record. It is better and appropriate to reproduce order of reinstatement of the petitioners, para.15 of the appeal before the Service Tribunal to resolve the controversy between the parties:-- "Consequent upon the recommendation of the Enquiry Officer in enquiry against them ordered to be conducted under the E&D Rules, 1999, the following PTC Teachers are hereby reinstated with effect from the dates as mentioned against each:--- Sr.
No.Name with parentage and designation.Date of reinstatement 1.Bashir Ahmed son of Ghulam Muhammad Ex-GPS-176 GB now PTC 176 GB.8-12-2003
2. Abdul Majeed son of Rustam Ali, Ex PTC, GPS 38 GB now PTC, CPS 40 GB.17-2-2004 3.Mukhtar Ahmad son of Shah Muhammad, Ex-PTC GPS 417 GB now PTC GPS 417 GB.7-1-2004
4. Rashid Ahmad son of Lal Din, Ex. PTC GPS 174 GB, now PTC GPS 174 GB.7-1-2004 5.Muhammad Hussain son of Abdul Sattar, Ex PTC GPS 165 GB now GPS 166 GB.17-2-2004 6.Zulfiqar Ali son of Shah Muhammad, Ex GPS 418 GB now PTC GPS 418 GB.8-12-2003 7.Akbar Ali son of Muhammad Sharif Ex PTC GPS 425 GB now PTC GPS 426 GB.12-3-2004 8.Muhammad Hussain son of Sharaf Din Ex PTC CPS 413 GB now PTC CPS 413 GB.7-1-2004 9.Basharat Ali son of Shah Muhammad Ex PTC GPS 417 GB now PTC GPS 417 GB.13-3-2004 10.Akbar Ali son of Muhammad Shafi, Ex PTC GPS 427 GB now PTC CPS 427 GB13-3-2004 ' The intervening period from the date of imposition of penalty i,e, Compulsory retirement to date of reinstatement will be considered on leave of the kind due to them under Revised Leave Rules, 1981.
However, the break in service for the period of EOL, if fallen in respect of any above said teacher, is hereby condoned as provided in letter No,SOR (S&GAD) 16-15/90 dated 17-5-1990."
(It is pertinent to mention here that Bashir Ahmad at serial No,1 and Akbar Ali at serial No,10 are not before this Court.)
Para.15 of the appeal before Service Tribunal "That the appellant has been jobless during this period."
7. Mere reading of the order of the reinstatement of the petitioners clearly shows that petitioners were not found guilty of any misconduct and charges against them were not proved. The detailed litigation and facts are noted by the Service Tribunal in paragraphs 2 to 5 which depict that petitioners were not found guilty in spite of various inquiries conducted against them by the respondents. It is pertinent to mention here that fresh inquiry was ordered into appointment of the petitioners as the appointments of the petitioners were declared genuine by the new Inquiry officer and petitioners were reinstated. This fact was not considered in its true perspective by the learned Service Tribunal in para. 6 of the impugned judgment. It is an admitted fact that there is nothing on record that the petitioners were gainfully employed anywhere during the relevant period and this fact was also not considered by the learned Service Tribunal in para. 6 of the impugned judgment.
Therefore, it would be very unjust and harsh to deprive the petitioners of back benefits for the period for which they remained out of job without any fault from their side. It is a settled law that back benefits in such situation cannot be withheld by the respondents or by the learned Service Tribunal. It is a settled law that grant of service back benefits to an employee who had been illegally kept away from employment was the rule and denial of such benefits to such a reinstated employee was an exception on the proof of such a person having remained gainfully employed during such a period. There are various pronouncements of this Court qua aforesaid proposition of law. See Sher Muhammad Shahzad's case 2006 SCMR 421, Binyamin Masih's case 2005 SCMR 1032, Mehmood Ahmad Butt's case 2002 SCMR 1064 and Mrs. A.V. Isssc' s case PLD 1970 SC 415. The learned Service Tribunal has refused back benefits to the petitioners in view of law laid down by this Court in Mansoor-ul-Haq's case 2004 SCMR 1308 which is distinguished on facts and law wherein PIDC vide order dated 23-6-1986 terminated Mansoorul-Haq's lien by stating that the same will be maintained by PACO, a borrowing organization and not in the PIDC and the said proposal was accepted by the PACO, therefore, the judgment relied by the Law Officer and learned Service Tribunal is distinguished on facts and law. It is a settled law that each and every case is to be decided on its own Muhammad Saleem's case 1994 SCMR 2213. The respondents were allowed vide order, dated 2-3-2007 to supplement the petitions with further documents. As mentioned above, respondents had not supplemented the petitions. The assertions laid down by the petitioners in their appeals in para.15 were not denied by the respondents specifically as depicted from para.5 of the impugned judgment. The Service Tribunal is deemed to be Civil Court and shall have the same powers as are vested in such Court under, the Code of Civil Procedure including the following powers in view of section 5(2) of Punjab service Tribunals Act, 1974:--
(a) Enforcing the attendance of any person and examining him on oath.
(b) Compelling the production of documents, and Issuing commission for the examination of witnesses and documents.
8. The aforesaid provision clearly shows that C.P.C. Is not applicable in stricto senso. However, at the time of deciding the appeals, the learned Service Tribunal may take benefit of principles of C.P.C. As mentioned above the petitioners had taken definite stand in their appeals vide para.15 but the respondents failed to deny the same. It is a settled law that even evasive reply to averment made in the appeal by the respondents would not be considered denial in law. See Sardar Muhammad Arshad Khan's case 1998 PLC (C.S.) 217, Ali Muhammad's case 1994 CLC 1.73 and National Bank of Pakistan's case 1996 CLC 79. It is a settled law that learned Service Tribunal is duty bound to decide the controversy between the parties after judicial application of mind in view of Article 4 read with 5(2) of the Constitution as law laid down by this Court in Gouranga Mohan Sikdar's case PLD 1970 SC 158, Mollah Ejahar Ali's case PLD 1970 SC 173 and Messrs Airport Support Services's case 1998 SCMR 2268. The- learned Service Tribunal has decided the controversy between the parties without judicial application of mind and even without perusing the para,15 of the appeals of the petitioners, therefore, impugned judgment is not sustainable in the eyes of law as the same was decided by the learned Service Tribunal in violation of the law laid down by this.
Court in various pronouncements as mentioned above.
9.. For what has been discussed above, these petitions are converted into appeals and are allowed with no order as to costs.