' SYED AKHTAR NAQI NAQVI (SENIOR MEMBER).--- The petitioner was employed in the L.D.A. Where he was suspended and was served with a show-cause notice. He filed two grievance petitions under section 22-A(8)(g) of the I.R.O., 1969 (since repealed) out of which one petition was aimed at assailing his suspension for indefinite period while the other petition was for cancellation of the charge-sheet. Both these petitions were accepted vide orders dated 26-2-1997. The petitioner contended that on being aggrieved by the aforesaid order, the respondents filed two separate appeals out of which the appeal against the order regarding suspension was dismissed while the other appeal was accepted. The petitioner contended that he did not agitate the matter further and was satisfied with upholding of the order regarding suspension for indefinite period but the respondents filed writ petitions against both the orders even against the one which was passed in their favour. The petitioner contended that the writ petitions were disposed and the respondents were allowed to hold inquiry. The High Court also directed for completion of inquiry proceeding but the order of this Bench in respect of reinstatement of the petitioner was confirmed. It was vide order, dated 13-9-2004. The respondents did not bother to hold an inquiry while in view of the repeated requests of the petitioner, inquiry in respect of the charges has now been dropped by the respondent No,2. The petitioner contended that he remained under suspension from 27-3-1979 to 10-1-2001 and no salary has been paid for this period although the petitioner is entitled for the same and he is entitled for full pay and emoluments for the period of suspension but from 27-3- 1979 till date he has not been paid anything towards that amount. The petitioner contended that not only entitled for seniority but also for promotion to the post on which his juniors have already been promoted but this right is also being declined to him.
2. The petitioner contended that he made several requests for implementation of the order of this Bench but it was refused hence he filed a complaint under section 51 of the I.R.O., 2002 bearing No,7(27)/06-L which was disposed of by this Bench with certain directions, in compliance of which he made a detailed representation for implementation of order, dated 26-2-1997 passed by this Bench and upheld by the Full Bench and High Court. Some other applications were also filed for.
The same relief but of no use hence this petition.
3. The respondents contested the petition inter alia on the ground that the petitioner was enrolled as an Advocate and his date of enrolment for the lower Courts is 21-1-1980 and the High Court is 23-11-1986 and thus, he abandoned the service in the L.D.A. And joined legal profession without an NOC from the competent authority; that the petitioner got his licence suspended on request on 16- 11-2001; that the petitioner attended law college in the year 1976-77 and qualified in LL.B. In January, 1978 while he was appointed as Junior Accountant in L.D.A. On 28-10-1977 and he did not obtain any NOC for continuing his law studies and therefore, he is not entitled to any service benefits from 28- 1-1997 to 16-11-2001. It was contended that the petitioner's claim is hit by laches and limitation and therefore, is an afterthought. It was contended that the learned Full Bench observed that no act of unfair labour practice was committed in issuing a show-cause notice which order was upheld by the High Court hence this petition is not competent and this Commission has no jurisdiction. On merits it was contended that the petitioner himself left the job and did not report for duty until a notice was published in Daily "Khabran" and then he reported for duty.
4. In order to prove his claim the petitioner himself appeared as P.W.1 and deposed the story that has already been given in detail in paras. Nos.1 and 2 of this order, hence the same need not be repeated at this stage. He also produced copy of order, dated 26-2-1997 passed by Agha Salim Khurshid Member NIRC as he then was, Exh.P.1 and Exh.P.2 copy of the order of the Full Bench dated 12-8-1997 Exh.P.3 and Exh.P.4, copy of the order, dated 13-9-2004 passed by the High Court Exh.P.5, copy of office order, dated 8-11-2006 Exh.P.6, copy of applications Exh.P.7 to Exh.P.13, copy of order, dated 7-7-2006 passed by the undersigned Exh.P.14 and copy of applications Exh.P.15 to Exh.P.20. In rebuttal Mr. Zafaruddin Qureshi appeared as R.W.1 and stated that the petitioner absented himself from the office after his suspension and never made a complaint that he was not receiving any suspension allowance. The respondents also produced Exh.R.1 being the enrolment 'slip of the petitioner as an Advocate, copy of his LL. B. Degree Exh.R.2, copy of his arrival report Exh.R.3 and an office order, dated 15-7-2000 Mark "A" and copy of notice Mark "B". With that the evidence of the parties concluded. At the end of trial I heard arguments addressed at the Bar and have perused record.
5. The petitioner's contention precisely is that he remained suspended for indefinite period and was not given any benefit in the shape of salaries and allowances in spite of the fact that his suspension was set aside and he was reinstated with full back-benefits. The respondent's contention is two-fold; firstly that the petitioner absented himself from the office as he had joined the legal profession with the result that a notice for his attendance in the office was got published in the daily "Khabrain" and secondly back-benefits cannot be claimed through contempt proceedings. In order to establish the respondent's version regarding absence of the petitioner, the respondents produced Zaffaruddin Qureshi Admin. Officer who stated that the petitioner absented himself from the office after his suspension and he never made a complaint that he was not being paid any suspension allowance. The respondent authority could not establish anything more in the negative form and with that the onus of proof shifted towards the petitioner that he had been attending the office even during his suspension. However, neither the petitioner produced any positive evidence in this regard in documentary or oral form nor he produced anybody in support of his claim and so much so that he himself did not utter a single word that he had been attending the office. On the contrary the learned counsel for the petitioner asked the solitary witness produced by the respondents to quote rules under which a suspended employee has to attend the office. In this regard I would refer to Sl. No,104 of the ESTACODE whereby it has been observed that on being placed under suspension, an employee is generally prohibited from leaving the station.
This is desireable where it is felt that, unless he is confined to a particular station he might tamper with the evidence likely to be produced against him, and such prohibition should not be enforced if there is no cause of such apprehension. It was further observed that an employee should simply be required to inform the authority concerned of his movement. I would also refer to Ordinance No,XVII of 2000 quoted as Removal from Service (Special Powers) Ordinance, 2000 under section 4 of which it is provided that a person who has been placed under suspension, the authority may in particular cases and for reasons to be recorded in writing instead of placing such person under suspension, require him to proceed on such leave as may be admissible to him from such date as may be prescribed by the competent authority. If both the aforesaid provisions of law are taken into consideration together, one comes to a conclusion that during suspension an employee cannot abandon the service or remain absent from the office without lawful authority. He has to report to the office, no matter for purpose of attendance. The petitioner was cross-examined on this point particularly when he denied incorrect that he had not made any application for grant of suspension allowance or pay if it was not paid to him. He denied the suggestion incorrect that he did not produce any such thing orally or in writing that he had been attending the office during suspension or that he was not allowed to attend the office or he was directed in this regard otherwise so that he could influence the other colleagues in that connection when he was charge- sheeted. On the contrary the respondents contended that the petitioner absented himself and joined the legal profession. In this regard on the one hand the respondents produced enrolment slip of the petitioner as Advocate Exh.R.1 whereby he was enrolled for the lower Courts w.e.f, 21-1- 1980 and an Advocate for the High Court w.e.f, 23-11-1986. He did his LL.B. Vide degree Exh.R.2 in the year 1978 and submitted his arrival report in the respondent establishment on 14-1-2001 for assuming his duty as Junior Accountant L.D.A. Vide Exh.R.3.
6. The respondent also produced copy of the office order Mark "A" dated 15-7-2000 whereby the petitioner was reinstated in service with immediate effect subject to the final outcome of the Writ Petitions Nos.7376 of 1999 and 7666 of 1999 titled L.D.A. v. Khalid Pervez Sh. Etc. And he was directed to report for duty in the administration Directorate. This letter was not complied with, with the result that a notice was got published in daily Khabrain on 6-9-2001 Mark "B" directing the petitioner to report for duty immediately as he had been reinstated into service. It was also mentioned therein that notice was sent to his residential address through registered post but he did not attend the office intentionally. On the contrary the petitioner did not produce any evidence to rebut the allegation of his absence from the office during suspension.
7. Keeping this evidence in mind, if the statement of the petitioner who is solitary witness in this case, is examined, it would stand established that the respondent-authority issued a notice to the petitioner asking him to join his service and that is letter Mark "A". That the petitioner himself did not produce any such letter. If it is presumed as correct-then it shall appear that the letter was issued on 15-7-2000 while he reported for duty vide Exh.R.3 on 14-9-2001. It means that he kept on sleeping over the matter and avoiding the compliance of the notice, dated 15-7-2000 Mark "A" and he awaited until a notice Mark "B" was got published on 6-9-2001 in daily Kharian since immediately thereafter on 14-9-2001 he reported for duty vide Exh.R.3. Before that he became a member of the legal fraternity in the year 1980 but he did not seek permission from the department as there is no evidence in this regard. No matter he did not conduct any case as an Advocate but joining legal profession would amount to suspending his own service. He did not even seek permission from respondent authority for appearing at the LL.B. Exam. Or study in any law college. According to him, obtaining an NOC for this purpose was not at all needed. The fact that the petitioner joined the legal profession in the year 1980 without any information to the respondent authority and not attending the office during suspension period after having been served through notice Mark "A" and then publication of notice Mark "B" and joining on 14-9-2001 through Exh.R.3 and not giving' any application for his back-benefits till 15-4-2006 when he submitted his application Exh. P.7, is indicative of the fact that he had absented himself from the ,office. He was already invited vide Mark "A" which is not denied by the petitioner hence this document has taken the 'status of an exhibited document. In spite of that he wrote the first letter for the implementation of the order on 15-4-2006 and thereafter Exh.P.8 to Exh.P.13 he wrote as many as six letters for implementation of the order within a period of two months. It is also indicative of the fact that he had abandoned the service w.e.f, the date of suspension till the date of his arrival on 14-9-2001. The evidence on record establishes that the respondents themselves invited the petitioner for joining service and reinstated him as discussed above. In this duration litigation continued between the two parties and therefore, on the one hand the litigation was pending and on the other hand the petitioner absented himself from attending the office. There is therefore, no question of committing any act of contempt of the orders of this Court on the part of the respondents.
8. With regard to the competence of this petition, as the petitioner has applied for back-benefit through contempt proceedings, the learned counsel for the respondents has referred to an authority of law reported as PLD 1959 SC at page 147 where it was held that an order reinstating an employee cannot be enforced by commitment for contempt proceedings. The relevant portion of the observation of the Honourable Supreme Court is reproduced below:--- "The usual method of enforcing a judgment granting an order of mandamus is by commitment for contempt, but such a mandamus must be of an absolute nature. An order directing the reinstatement of a person in great public department is not one which can be executed on the instant. It involves a great many consideration such as seniority, suitability, salary, and treatment of the period of absence etc. Which are exclusively within the competence of the relevant executive authorities and can only be decided by those authorities after a good deal of examination and care, involving the exercise of discretion and judgment in regard to many complex matters.
Therefore, an order directing the reinstatement of a person cannot be regarded as an absolute order of mandamus, non-compliance with which may peremptorily be visited by a proceeding in contempt."
' A similar view was taken by the Honourable Supreme Court in a judgment reported as 1974 SCMR at page 137 wherein it was held that in such a situation the employee had to refer to the Civil Court for determination of his rights. In a judgment of the Madras High Court India reported as 1968 II LLJ 98 it was held that it is not the duty of the employer to take steps to invite the employee to rejoin but it is the duty of the employee concerned either to claim or inform in writing that he is ready and willing to join service within a reasonable time or to give notice that he be reinstated and in the absence of any of these, the employer is under no legal obligation to take steps to reinstate the employee and that a reasonable time would depend on the facts and circumstances of the case.
The pronouncement of the superior Courts of India are not ignored by the Honourable superior Courts in Pakistan and or rather referred and followed. In the light of these authorities of law about which there is no contradiction, it is established that the respondent has not committed any act of contempt of the order of this bench and therefore, there is no question of its punishment and without punishment the question of back-benefits does not arise. I would refer an authority of law reported 1980 PLC 752(c) in this regard.
9.The result of the above discussion is that the petitioner has not been able to establish by means of a convincing evidence that he remained present on duty during his suspension period and was declined by the respondent authority in matter of compliance of the order of this Bench. He could not therefore, establish that any act of contempt of Court was committed by the respondent authority. The petition is therefore, dismissed with no order as to costs. I may however, make it clear that the petitioner would not be precluded from pursing before the appropriate forum for the recovery of his back-benefits and seniority 'in service etc. File be consigned to record.