JUSTICE (RETD.) GHULAM NABI SOOMRO, CHAIRMAN - This is an appeal under Section 4 of the Sindh Service Tribunals Act, 1973 filed by appei'ant Gul Shabhir Khatian.
2, The facts relevant for the purpose . Of this app6alarethaV4he'appeUant;W^ the Sindh Local Government Academy, Tando Jam in the year 1983,was. proe5^.e.d^^K)svt departmentally . Under the Sindh Givil Seh>ants (E&D)* Rules; '1973-for*mtscdi iudt and was inflicted major penalty of dismissal from service vide order dated 15.11.1983 by the then Director General, Rural Development Department, Government of Sndh. The appellant challenged the above order of dismissal.Before the respondent No. 2 (Secretary, Local Government Department), who vide his order dated 7.5.1994, set aside the order of dismissal of. The appellant and ordered reinstatement of the appellant lo ins original post, after more than 11 years, lt is the case of the appellant that the respondent No. 2 while acting as Appellate Authority and directing reinstatement of the appellant to his original post did not bother to decide about the intervening period of 11 V2 years during which the departmental appeal of the appellant remained pending in his office. Accordingly the appellant again invoked the authority of the respondent No. 2 praying decision on the said intervening period of 11 Vi years inter alia on the ground that he was not at fault for the afore-said period nor as he gainfully employed any where during that period, lt is stated that the respondent No. 2 could not make decision on such representation of the appellant and upon failure to receive, any reply from the respondent, the appellant filed service appear No. 239/2001 before this Tribunal wherein vide order dated' 10.1.2004, this Tribunal directed respondent No. 2 to dispose of the appellant's appeal pending decision before him.
3. That the respondent No. 2 having failed to comply the Tribunal order, on appellant's appeal No. Gul Shabir Khatiau V. t'hicf Secrets.y( \>u. Ot'Sindh L& (Raid. I (iuLihi S'ohi Soomn,-, (. Hainnan.)
239/2001, filed M.A. Before the Tribunal for getting its order implemented. Such* M.A. Was disposed of in view ot Rule 28 of the S.S.T. (Procedure) Rules, 1974 by -.r dated 13.12.2004. However, the respondent No. 2 oy its order dated 11.11.2005 decided the intervening period at Annexure "D", page 44 of the file as follows:- (i)
I I From 30.12.1981 to 14.11.1983 i.e. Period of his suspension to dismissal As spent on duty on fully pay IT) From 15.11.1983 to 6.5.1994 As leave on due i.e. Period of dismissal to basis I J reinstatement
4. Appellant once again challenged the order Annexure 'D1 by filing departmental appeal within a statutory period and consequently fi'ed Service Appeal No. 574/2004 before the Tribunal, wherein this Tribunal while deciding the afote-said appeal on 10.05.2007 remanded the case back to the respondent No. 2 with direction to conduct enquiry, with regard to engagements of the appellant during the period which was decided by the respondent No. 2 'as leave on due basis' as shown above. This Tribunal further directed the respondent No. 2 to disclose reasons for the delay of more than 11 years in disposal of the appellant's departmental appeal. The enquiry was not completed within*90 days the period allowed by the Tribunal but was ended on 6th August, 2007. The appellant, it seems, was all along trying to get his grievance redressed before his retirement but as is said the time and tide wait for none, the date of 14th July, 2007 came* in and the appellant proceeded to his home on attaining, the age of superannuation. That after long last, enquiry report Annexure "F" at page 47 of the file dated 16th August, 2007 came up, the relevant paragraphs of which are reproduced below:-- ln the light of above position and as per available record the officers of Local Government Department and Regulation Wing, S&GAD are responsible for non-finalization of departmental appeal for period of over 13 years, as iiii today no decision has been taken by the Local Government Department for want of advice from Regulation Wing, S&GAD.
Ln view of the above position in my opinion the appellant (Mr. Khatian) is not at fault, as no timely decision was taken on his application for back benefits and he is eligible for back beneuts as per rule, for the period during which he remained cut from ' service i.e. w.e.f. 16.11.1983 1o 6.5.1991.
So/- (MUSHTAQ AHMED QURESHI)
'Chief/inquiry Officer, Provincial Transition Wing" it was revealed that the Enquiry Report remained on the paper only and if was' not acted upon. This again compelled the appellant to approach a legal forum and consequently filed the present appeal praying - "(Hi) allow back benefits of Arrears of Salary, refixation of pay, Allowances and Annual Increments fallen due in December, 1983 to December, 1993 to appellant w.e.f. Date of Dismissal (5.11.1983) to Date of Rejoining (16.5H 994) both. Days inclusi ve by treating waiting period of IVA years as period spent on duty;
(iv) declare that appellant is entitled to back benefits for entire 11A years waiting period when he was not gainfully employed and did not earn his livelihood; *
(v) allow appellant Consequential Benefits for said . Intervening period of 11A years."
6. This appeal was admitted to regular hearing on 28.5.2008. Notice of the appeal against respondents undeF Section 13 of the Sindh Service Tribunals (Procedure) Rules, 1974 for filing their written statement was served upon them. Of whom respondent No. 2 filed his written statement which was adopted by the respondent No. 1. Respondent No. 3 (Secretary to Government of Sindh, Finance Department) in spite of sufficient time allowed to him, failed to file his written statement.
7. The case of the respondents as set out in the written statement of the respondent No. 2 is simple denial to he assertions made by the appellant. What is contained additionally in the said written statement is that all orders have been passed under the advice of the Regulation Wing (of S&GA Department) and according to law.
8. We have heard the learned counsel for the parties and perused the record available on the file.
9. Lt was contended by the learned counsel for the appellant that dismissal order passed by the Director General, Rural Development Department was without issuance of show-cause notice, without serving a charge- sheet, without holding any enquiry or providing a chance of personal hearing to the appellant. According to the appellant such enquiry cannot be termed as enquiry envisaged by law, hence, the appellant was entitled to full back benefits for the past period of more than 11 years, during which period the departmental appeal remained pending before the respondent No. 2. Lt was next argued that appellant was not at all at fault, the delay was caused by the respondent No. 2.t Learned counsel also called for our notice to the Report of the Enquiry Officer, lt was urjjed that the Departmental Authorities have repeatedly committed violation of law. As, time and again they have been required by the superior Courts and by the Hon'ble Supreme Court in various pronouncements, that the authority passing an order, must support its order with reasons which should appear as a speaking order, lt was urged that this Tribunal had in its judgment dated 10.5.2007 directed the departmental authority to give his findings on the issues involved. Instead the respondent No. 2 did not comply with the Tribunal order but only repeated the order dated 11.11.2005 which is illegal and is not based on the merits of the case: Reliance in support of the appellant's case has been placed upon a plethora of case-law contained in paras. 27 and 29 of the memo, of appeal. The citations given are about 28 in number.
10. On the other hand, the learned A.A.G, only relied upon written statement of the respohdent No. 2 which has been adopted by the respondent No. 1. He has not been able to controvert any of the above contentions and rightly so, as he had no material to place before the Tribunal either on factual side qr on legal plane. Further more the enquiry report suggested that the appellant was not at fault, fault lay with the officials of the Local Government Department and the S&GA Department (Regulation Wing), lt was also opined that the appellant was eligible for back benefits under the rule.
11. Of the total case-law cited, some of the authorities relied upon are referred herein:- ln the case PLD 1990 SC 787 (Qadeer Ahmed v. Punjab Labour Appellate Tribunal, Lahore), it has been held by the Supreme Court that where an order of dismissal or removal has been set aside unconditionally, found to be without jurisdiction and uncalled for, necessarily the back benefits to be paid.
Ln case reported as 2003 SCM R 1108 (Director Public Instructions v. Uaqat Ali), Hon'be Supreme Court while refusing leave to appeal, held that a civil servant dismissed from service on the allegation of absence without leave and reinstated in service by the competent authority on the ground that the order of dismissal was not passed in a proper manner. Service Tribunal found the civil servant entitled to the payment of arrears of pay for the period, lt was further held that, if the civil servant was not at fault in any manner, he could not be deprived of his salary for the period during which his departmental appeal could not be decided by the competent authority in time.
Ln another case 2006 SCM R 421 (Sher Muhammad Shahzad v. D.H.O, and another) the Supreme Court while setting aside Tribunal Order, whereby Order of dismissal of civil servant was set aside by Service Tribunal but back benefits were declined by treating intervening period as extraordinary leave, observed that nothing was available on record that they were gainfully employed any where during the relevant period, therefore it would be unjust and harsh to deprive them of back benefits for no fault on their part.
Ln yet another case, reported as 2005 SCMR 103 (Bin Yameen v. Government of Punjab) .Hon'be Supreme Court was pleased to hold that civil servant had suffered a lot without any fault on his part due to the blunder committed by the department which was regrettable spoke volume of inefficiency and good governance of the department concerned. The judgment of the Service Tribunal was modified and the authorities were directed to pay the salary for the concerned period. /
12. The record reveals that the appellant has approached this Tribunal for the fourth time in the last six years demanding the same relief from the departmental authorities since 1994. Lt is surprising to note that the departmental authority/who in this case is respondent No. 2, took more than 11 years In deciding the appellant's appeal. Section 4 of the Sindh Service Tribunals Act, 1973 gives 90 days' time to the departmental authority to decide civil servant's representation/appeal and if no decision is made within that period, the aggrieved civil servant can within 30 days from completion of period of 90 days file an appeal before the Tribunal. This section provides another chance to the civil servant to file appeal before the Tribunal, again within 30 days, upon receipt of the order of the departmental authority. This does not mean that the departmental authority is absolved by law or is conferred an unfettered discretion, not to pass the order/decision.
13. Ln mostly all cases, appeals before this Tribunal are filed when no order is passed, by the departmental authority within the statutory period of 90 days. Legal position is that a civil servant is given two chances of filing an appeal. One, within 30 days, when no order within the stipulated period of 90 days from receipt of the representation is passed by the departmental authority and two, upon communication of the order to the appellant. Time for filing appeal before the Tribunal is same in the second case also, lt is again regrettable and disgusting that such orders are invariably always, in the words, 'case considered and rejected.' This kind of orders, in view, of various Supreme Court Judgments, are but a flagrant violation of the law declared as law by the Hon. Supreme Court. Should such an official investigated as responsible, be not questioned on his slackness to pass a speaking order within the time allowed by law. Should he, who is found responsible, be not asked to compensate the loss caused due to his/their negligence, to the Government.
14. Indeed, the law is settled, that when a civil servant is reinstated after his dismissal by departmental authority then he is entitled to back benefits for intervening period if he was not gainfully employed any where, from the date he was dismissed till his reinstatement, exceptions apart. The law cited in support of the appellant's case fully favours the appellant and is against the respondents.
15. Admittedly, there is nothing on record to show that during the intervening period for which the appellant has been denied his right of back benefits, he was gainfully employed any where in any capacity. The burden to prove that the appellant was employed some where during the intervening period lay upon the respondents. No document is brought on record to Controvert the case of the appellant, ln absence of a proof that the appellant was gainfully employed some where and the delay caused in disposal of the civil servant's representation was not on the part of the civil servant, such civil servant can claim back benefit as a matter of right and not as a charity. < 16. Accordingly, for the facts and the law referred, we allow this appeal. The appellant is awarded back benefits for the period from 15.11.1983 to 6.5.1994 including consequential benefits flowing from the above, according to law. No order as to costs.
17. This appeal was allowed in above terms by a short order dated 26.2.2009. These are the reasons in its support. .