Sayed Mehar Hussain Shah, Member.--All the above-mentioned appeals have been filed by the appellants, claiming payment of back benefits when he came from East Pakistan to West Pakistan, for the period of waiting for duties in the then West Pakistan.
2. As common questions of facts and law are involved in all the above-mentioned appeals, therefore, we propose to dispose them of by this single/common judgment, treating Appeal No. 196 (K)(CS) 2005 (Abdul Wali Vs. Railways and another) as lead one.
3. Briefly stated facts of the case, relevant for disposal of the above appeal are that the appellant joined Pakistan Eastern Railways w.e.f. 11.08.1960 as Painter under DCO remained so till his absorption w.e.f. 13.01.1979 and by the last was serving as skilled worker in C&W Shop, Mughalpura, Lahore. That while working as such, he retired from service on 28.01.1998 on reaching the age of superannuation. That during service, the appellant, time and again, approached the respondent for payment of pay and allowances for the period w.e.f. 16.12.1971 to 12.01.1978 and all the times, he was assured that he shall be paid all such dues. He was kept waiting for duty w.e.f. 16.12.1971 to 12.01.1978 by the railway administration, when he was absorbed on 13.01.1978 and was finally retired on 28.01.1998. He time and again approached the respondent for payment of such dues w.e.f.
16.12.1971 to 12.01.1978, but was kept on false hopes and finally, the appellant on 05.04.2005, sent his representation, requesting for the said payment, which was not responded to; hence, this appeal.
4. We have heard the learned counsel for the parties and have also gone through the relevant record.
5. Learned counsel for the appellant contended that the appellant, on arrival from East Pakistan, had reported for duty and was taken up by the administration on 13.01.1978 and was then retired from service on attaining the age of sixty years on 28.01.1998. He argued that on 04.01.1973, the President of Pakistan had decided that in case of Central Government servants, who were serving in the Province of East Pakistan at the time of its occupation by the enemy and left East Pakistan on or after 16.12.1971 and had reached West Pakistan, period of their absence from 16.12.1971 upto the date of resumption of duty in West Pakistan shall be treated as spent on duty. He argued that the appellant was entitled to payment of pay and allowances for the intervening period i.e. 16.12.1971 to 12.01.1978 and further pensionary benefits be calculated on the basis of re-fixation of pay of the appellant and relied on 2004 TD (Service) 273 and 2003 TD (Service)
23. He further argued that the respondents withheld the salary of the appellant for the said period, which is legitimate right of the appellant and the respondents, under no circumstances, could withhold it and such action of refusal is arbitrary and relied on 2001 PLC (CS) 991, 2003 PLC (CS) 1376 and 2005 PLC (CS)
4. He also contended that in Civil Appeal No. 552 of 1993 (Muhammad Matiur Rehman Vs. Pakistan Railways) decided on 12.12.1995 in Appeal No. 262 (R)(CS)/2000 (Mumtaz Khan vs. Mumtaz Ahmed), the Hon'ble Supreme Court of Pakistan and this Tribunal had accepted and granted such period by treating the same as spent on duty to the employees of former East Pakistan. He urged that as a rule of consistency, the appellant is also entitled to, the benefits of said judgment and the respondents are bound to make payment to the appellant for the period w.e.f. 16.12.1971 to 12.01.1978 by treating the said period as spent on duty and further pensionary benefits may be recalculated after fixation of pay of the appellant by including the above period and relied on 2005 PLC (CS)
403.
6. Learned counsel for the respondents in Appeal Nos. 196 to 199(K)(CS) 2005 and 79 (K)(CS) 2006, although was not present on the date of hearing, but he was provided an opportunity to submit his written arguments, which was done, wherein it has been argued that the appeal is time barred as according to the appellant, respondent had denied benefits for the period w.e.f. 16.12.1971 to 12.01.1978, thereafter, departmental appeal sent on 05.04.2005, after more than 27 years. It has been contended that the appellant had arrived on 07.01.1977 as per his own declaration and was absorbed in Pakistan Railways, on 13.01.1978 and voluntarily retired from service on 28.01.1998.
7. We have also heard the learned counsel for the respondents in Appeal Nos. 202 to 204 (K)(CS)
2005, who contended that the office has no policy owing to which dues of intervening period i.e. from 16.12.1971 to 29.07.1974 is to be made to a displaced Ex-P.E Railway employee, who was absorbed in Pakistan Railways. That the relevant circular dated 04.01.1973 is about the intervening period, which has been treated as period spent on duty. So far as pay and allowance are concerned, nothing has been indicated.
8. We have carefully considered the arguments of the learned counsel for the Appellant as well as learned counsel for the respondents and have also perused the parawise comments filed on behalf of the Respondents. There is no cavil to the proposition that limitation does not run in respect of financial matters. We rely on PLD 1992 SC 825, 199 SCMR 255, 2000 SCMR 104, 2000 SCMR 181, 2002 PLC (CS) 1388; 2006 PLC (CS) 1124. It is also settled preposition that pay and allowances and other benefits are not bounty of the state, but right of the employee. Office Memorandum dated 04.01.1973 is also clear on the point wherein Government of Pakistan, Ministry of Finance, Planning and Development had clearly stated that, the President has been pleased to decide that, in the case of the Central Government Servants, who were serving in the Province of East Pakistan at the time of its occupation by the enemy, and left East Pakistan on or after 16.12.1971 and have reached West Pakistan, the period of their absence from 16.12.1971 upto the date of resumption of duty in West Pakistan, will be treated as spent on duty." That the period of waiting for duty has already been allowed by the Hon'ble Supreme Court of Pakistan and bench of this Tribunal at Islamabad, as such, appellant is also entitled to the said benefits. Reliance can safely be placed on 1991 PLC (CS) 624 and PLD 1994 SC 348. That the Hon'ble Supreme Court of Pakistan in the case of Hameed Akhtar Niazi has held that benefits of judgment should be extended to those employees who were not party before the Court of law and they may not be asked to approach the Court of law. We rely on 1996 SCMR 1185.
9. In view of the above, we order that the period w.e.f 16.12.1971 to 12.01.1978 be treated as spent on duty and after fixation of pay by including the said period, pensionary benefits be calculated and be paid to the appellant. In view of the above, appeal stands disposed of accordingly. No order as to costs.
10.This judgment shall, mutatis mutandis, apply to Appeal Nos. 197 to 199 (K)(CS) 2005, 202 to 204 (K)(CS) 2005 and 79(K)(CS) 2006.
11.Parties be informed accordingly.