' ANWAR ZAHEER JAMALI, C.J.--- Through this petition, the petitioner has brought before us his grievance against non-granting of back-benefits by the respondents on his reinstatement in service vide Notification dated 11-7-2001, which reads as under:--- "Karachi dated 11th July, 2001.
' Notification ' No, SO(A-IV) 17(3)/95/84!SSC. Consequent upon his appeal having been up held by the Competent Authority Dr. Irshad Ali Soomro former Director, Production and Processing Sindh Seed Corporation removed from service vide Managing Director, Sindh Seed Corporation's Office Order bearing No, SSC/ESTT/146 dated 10-1-1996 is hereby reinstated in service. They orders of his posting will be issued separately.
' The intervening period from 14-5-1995 to the date of joining of Dr. Irshad Ali Soomro is hereby treated as extraordinary leave without pay."
2. The perusal of documents placed on record along with this petition reveal that after reinstatement in service in terms of the notification reproduced above, the petitioner has agitated his grievance regarding non-awarding of back-benefits by way of filing Appeal No,196 of 2001 before the Sindh Service Tribunal at Karachi, which was dismissed by the judgment of the Tribunal dated 30-12-2005. Against the judgment of the Sindh Service Tribunal a petition for leave to appeal being civil Petition No,97-K of 2006 was preferred by the petitioner before the Honourable Supreme Court of Pakistan, which was disposed of in the following manner:- "By consent of the parties impugned order dated 30-12-2005 of the Sindh Service Tribunal is set aside and the case is remanded to the Sindh Service Tribunal to give definite finding as to whether the petitioner was entitled to back-benefits if he was not gainfully employed during the period he has prayed for back-benefits, after affording opportunity to the parties to place their material in the said respect before the Service Tribunal and decide the appeal afresh deemed to be pending on its file within a period of three months."
3. In terms of the above order of the Honourable Supreme Court of Pakistan, when the case was received by the Tribunal for further proceedings, the petitioner had submitted his affidavit-in- evidence before it, however, before finalization of his case on merits, in view of the judgment of the Honourable Supreme Court of Pakistan in the case of Muhammad Mubeen-us-Salam v. Federation of Pakistan and others PLD 2006 SC 602 it was dismissed vide order dated 23-4-2007, which, according to the petitioner, necessitated agitation of such grievance (non-grant of back-benefits) before this Court in the form of present petition.
4. On notice of this petition, parawise comments on behalf of the respondents No,1 have been filed, wherein the factual aspect of the previous litigation have not been denied, however, the claim of back-benefits has been seriously disputed for various reasons stated therein.
5. Mr. Shabbir Ahmed Awan, learned counsel for the petitioner addressing this Court vehemently argued that for no fault on his part, the petitioner is running from pillar to post for redress of grievance regarding non-payment of back-benefits, which is his legitimate right under the law. He contended that Honourable Supreme Court of Pakistan in its order dated 30-3-2006 had given a clear time frame of three months to the Tribunal for deciding factual controversy as regards grant of back-benefits or otherwise, in the light of its observation, but for no fault of the petitioner such exercise could not be completed by the Tribunal within time, and eventually such proceedings, abated in view of the judgment in the case of Muhammad Mubeen-us-Salam (ibid). He contended that the petitioner has no other alternate, adequate and efficacious remedy available with him in this regard, therefore, he has invoked the jurisdiction of this Court under Article 199 of the Constitution. Learned counsel, however, did not dispute that in the light of judgment of the Honourable Supreme Court of Pakistan dated 30-3-2006, the Tribunal was to hold factual inquiry as to the claim of back-benefits of the petitioner, which exercise has not been completed in the matter. He also did not dispute that this Court in exercise of Constitutional jurisdiction under Article 199 of the Constitution, as a normal course, refuses to entertain such grievances of the parties, which cannot be adjudicated upon or resolved without investigation into the factual controversies, as in the instant case. He also did not dispute that under section 9 of the C.P.C., Civil Courts are the Courts of ultimate jurisdiction and such recourse was available to the petitioner to seek redress in accordance with law. He, however, insisted that in the peculiar facts and circumstances of the case, this petition may be heard and decided by this Court on merits and availability of such alternate remedy shall not be accepted as a bar for deciding this petition on merits. He further averred that the claim of the petitioner as regards the back-benefits of over six years can be allowed by this. Court keeping in view various pronouncements of the superior Courts relating to back-benefits.
6. In support of his submissions, learned counsel placed reliance on the following cases:---
(1) Salauddin and others v. Taj Muhammad Khanzada PLD 1975 SC 244, (2) Muhammad Shafiq and 6 others v. Board of Intermediate and Secondary Education, Faisalabad PLD 2008 SC 1277, (3) Sher Muhammad Shehzad and 22 others v. District health Officer and another 2006 SCMR 421, (4)
Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046, (5)
General Manager/Circle Executive Muslim Commercial Bank Limited and another v. Mehmood Ahmed Butt and others 2002 SCMR 1064, (6) Director, Public Instructions (E. E), Punjab and others v.
Liaqat Ali Khan 2003 PLD SC 598, (7) Shershah Industries Ltd. v. The Government of Sindh and 4 others PLD 1982 Kar.
653.
' He also relied upon the judgment of Federal Service Tribunal, dated 17-5-2005 in the case of Syed Muhammad Ali Goher Mehdi v. House Building Finance Corporation and others.
7. Mr. Muhammad Yousuf Leghari, Advocate General, Sindh for respondents Nos.1 and 2 vehemently contended that the petitioner was out of country for a period of over 4 and 1/2 years during which he must have been engaged in some gainful business or service but hiding this fact now he is trying to claim back-benefits of over six years from respondents for which he is neither legally nor morally entitled. He further contended that in their parawise comments respondents have narrated in detail the conduct of the petitioner, which disentitles him for grant of any discretionary relief from this Court under Article 199 of the Constitution. Challenging the maintainability of this petition, Mr. Leghari placed reliance on the case of Arabian Sea enterprises Ltd. v. Government of Sindh and others 2007 CLC 1215. He concluded his submission with the request that this petition shall be dismissed with costs.
8. Mr. Mansoorul Haq Ansari, learned counsel for respondent No,4 in this petition made specific reference to paras.6 and 7 of the judgment of Sindh Service Tribunal dated 30-12-2005 in Appeal No,196 of 2001 Re: Dr. Irshad Ali Soomro v. Government of Sindh and others to show that besides legal position, on the basis of admitted facts petitioner is not entitled for any claim of back- benefits for the period spreading over more than five years. For convenience sake the two paragraphs referred by him from the judgment of Sindh Service Tribunal are reproduced as under:-- "(6) Perusal of the record reveals that Notification of cancellation of leave dated 14-5-1995 issued by the Secretariat of the. Governor of Sindh was never served upon appellant. Therefore, he had rightly availed leave w.e.f, 14-5-1995 to 9-11-1995 (180 days), which was earlier granted to him subject to title. However, appellant's contention raised in his departmental appeal that in November, 1995 he again applied for extension of leave for three months is not born out from the record made available before us. He has neither produced the copy of said application nor the order/Notification whereby the leave was extended. It may be stated that in his memo. Of appeal, appellant has no where stated that he had ever applied for extension of leave for three months.
According to appellant he returned from abroad in February, 1996 when he acquired knowledge about the punitive order. Be that as it may, appellant was supposed to file departmental appeal immediately on acquiring such knowledge in February, 1996 but he un-necessary waited for about 4 and half years and filed departmental appeal on 14-7-2000, therefore, by no stretch of imagination he can get premium of his long silence. Appellant's contention that since he had been victim of the personal enmity of the then Minister for Agriculture Mr. Murad Ali Shah who remained in power till October, 1999 it was not possible for him to get the justice, is nothing but a lame excuse.
The explanation/contention is neither convincing nor plausible and is thus not believable. We may observe here that appellant was simply allowed 180 days leave but he had gone abroad although he was not allowed ex-Pakistan leave, therefore, his proceeding abroad without permission amounts to misconduct', but since the departmental appellate authority by exercising his powers reinstated appellant on the sole ground that disciplinary proceedings initiated against appellant were not proper, as such, no further action against appellant is called for.
(7) Contention of appellant's learned counsel that since the impugned order of removal from service has been declared as illegal and void and appellant has been reinstated in service, therefore, he cannot be deprived of the salary during which he remained out of job for no fault on his part, has no force in the circumstances of the case. Admittedly, as observed earlier, appellant was supposed to resume his duties on 10-11-1995 after expiry of 180 days leave, but he failed. His contention that he had applied for extension of leave for three months is not borne out from the record. Besides, appellant filed departmental appeal after inordinate delay of 4 and half years from the date of acquiring knowledge of passing of original impugned order. Besides, appellant either in his departmental appeal or in the memo of instant appeal has no where mentioned that during the period he was out of service, he had not made any earnings by engaging himself in any employment or business. As per dictum laid down in a case of Abdul Hafeez Abbasi v. Managing Director, PIAC 2002 SCMR 1034, such prayer/assertion necessarily had to be made in the pleadings.
In another case of Pakistan Automobile Corporation Limited v. Mansoor-ul-Haque and others 2004 PLC (C.S.) 1151, the Honourable Supreme Court disallowed the back-benefits awarded to respondent No,1 (Mansoor-ul-Haque) by the Federal Service Tribunal on the sole ground that the same were not supported by documentary evidence to the effect that when respondent No,1 was out of service, he did not work anywhere to gain financial benefits. Therefore, keeping in view the dictum laid down by Honourable apex Court, appellant by no stretch of imagination is entitled to salary for the period from 11-11-1995 to 10-7-2001 i,e, for the period he remained out of job."
9. Further, making reference to the judgment of the Honourable Supreme Court of Pakistan dated 30-3-2006, whereby the above-referred judgment of the Sindh Service Tribunal was set aside, learned counsel contended that the consent of the parties for reinvestigation of the claim of petitioner regarding back-benefits by the Sindh Service Tribunal will not dilute the effect of such findings of fact recorded by the Sindh Service Tribunal, and in any case when the Honourable Supreme Court of Pakistan has declined the relief of 'Nick-benefits to the petitioner, without holding of inquiry of facts by the Sindh Service Tribunal in this regard, this Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution will not be justified in granting such relief, which is not possible without investigation into the disputed question of facts. He contended that it un-believable that a highly qualified person, like the petitioner, will stay abroad for a period of 4 and 1/2 years without engaging himself in some profitable business venture or service. He, therefore, urged that in case the petitioner is adamant to pursue his illegitimate demand of back- benefits then he has to approach the proper forum where such factual investigation could be conducted to find out the genuineness otherwise of his claim. In support of his submission, learned counsel placed reliance upon the judgments in the cases of Gul Sher Khatyan v. Chief Secretary, Government of Sindh 2007 SLJ 1311 and Abdul Wahab and 2 others v. Secretary, Home Department, Government of Sindh Karachi 2007 SLJ 345
10. We have carefully considered t1 e submissions of the learned counsel and perused the whole material, available on record, which reveals that now the short controversy involved before us is whether the claim of the petitioner regarding back-benefits could be entertained and granted by this Court in the exercise of its jurisdiction under Article 199 of the Constitution, without holding inquiry into the disputed questions of fact relating to this issue. In this regard the order of the Honourable Supreme Court of Pakistan dated 30-3-2006 is quite relevant, which gives a clear view of the matter that the Honourable Supreme Court of Pakistan had not deemed it just, equitable and proper to award the claim of back-benefits to the petitioner without holding of a proper inquiry to this effect by the Sindh Service Tribunal. This admitted position of the case leaves us in no doubt to hold that the petitioner is not entitled for grant of back-benefits in a routine manner as claimed by him without first, determination of the fact that during the relevant period he was not gainfully employed or engaged any else. Mere filing of affidavit in evidence by the petitioner before the Sindh Service Tribunal without being subjected to cross-examination, is of no avail. Thus, the position as it stands today is that no factual inquiry has been conducted before any forum as to the genuineness of the of the back-benefits of the petitioner. The reference of Mr. Manzoorul Haq Ansari as to the observation of the Sindh Service Tribuna paras.6 and 7 in its judgment dated 30- 12-2005 is of no avail for the simple reason that such view was not accepted/approved by the Honourable Supreme Court of Pakistan, when with the consent of parties such order was set aside and case was remanded to the Sindh Service Tribunal to give definite finding as to whether the petitioner was entitled to back-benefits if he was not gainfully employed during the period and for this purpose due opportunity was to be afforded to the parties to place their material before the Sindh Service Tribunal. It has not been denied by learned counsel for the petitioner that no mathematical formula can be applied for grant of back-benefits to a party and for this purpose each case is to be decided on its own peculiar facts and circumstances. In the present petition it is an admitted position that the petitioner has preferred the departmental appeal after 4 and 1/2 years of his termination of service vide office order dated 10-1-1996. Not only this but neither in his departmental appeal nor even in his appeal before Sindh Service Tribunal anywhere the petitioner has stated about his claim as averred now that he was not gainfully engaged during the intervening period. The cases referred by Mr. Shabbir Ahmad Awan are also of no help to the case of the petitioner for the reason that in view of the specific observation of the Honourable Supreme Court of Pakistan in its order dated 30-3-2006 a factual inquiry is to be conducted and a definite finding is to be recorded by some competent forum as to the claim of back-benefits of the petitioner or otherwise. Indeed, the availability of alternate remedy is not an absolute bar for this Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution, but such issue is to be decided by the Court looking to the peculiar facts and circumstances of each case. In the instant petition the investigation as to the claim of back-benefits of petitioner is primarily a question of fact to be decided after affording full opportunity to both the parties to lead their evidence or to produce documents, therefore, we are not inclined to consider such aspect of the matter in our Constitutional jurisdiction. Moreover, the jurisdiction of this Court under Article 199 of the Constitution is purely discretionary in nature and we do not find any circumstances in favour of the petitioner, who admittedly remained mum for a 4 and 1/2 years after his removal from service vide office order dated 10-1-1996, to grant him any such relief in the matter contrary to the spirit of Supreme Court order.
11. The up-shot of the above discussion is that this petition is dismissed in limine. However, it is left open for the petitioner to agitate his grievance before any proper forum.
12. Foregoing are the reasons for the short order passed in this petition today.