' SHAHID ANWAR BAJWA, J.--- For reasons to be recorded later on this Constitution Petition was disposed of and respondent No,1 was directed to pay to the petitioner back-benefits in accordance with the order of the Federal Service Tribunal.
2. The facts relevant for decision of this petition are that petitioner at the relevant time was an employee of Pakistan Steel Mills Corporation, respondent No,
1. He was dismissed from service vide order dated 6-6-2002 and his departmental appeal was rejected on 4-7-2002. Being aggrieved by this position he approached the Federal Service Tribunal with Appeal No,559(K)(CE) of 2002 which appeal was allowed vide judgment dated 4-8-2009. The operative part of the judgment reads as under:- "(6) In view of the foregoing, we have no hesitation in setting aside the impugned order dated 6-6- 2002 imposing major penalty of dismissal from service upon appellant by respondent No,5 as well as appellate rejection order dated 4-7-2002 of respondent No,2 and order that the appellant may be reinstated in service. However, the department is free to proceed against the appellant afresh under the law, if it so desires. The fresh proceedings, if held, shall be initiated and completed within a period of 120 days from the receipt of a copy of this judgment and the question of back benefits shall depend upon the outcome of the fresh proceedings. No order as to costs."
3. This judgment was accepted by the respondent No,1, and on 29-10-2009 Statement of Allegations and. Charges under the provisions of the Removal from Service (Special Powers)
Ordinance, 2000 was issued to the petitioner. Allegations were duly replied. On 8-1-2010 a Memorandum was issued. The said Memorandum is in the following words:--- "With reference to statement of Allegation and Charges No,GM/BMR&E/Eng/2009/7164 dated 29.10.2009, Mr. Sarir Muhammad Khan, Manager (P.No,01 661) under posting in A&P Department is informed that the competent authority considering the status of enquiry proceedings which have not been completed due to non-availability of original case file, has decided to close the case without payment of back-benefits/ arrears."
4. The petitioner had submitted affidavit as well as application that during the intervening period he had remained unemployed and therefore claimed back-benefits. Learned counsel for the petitioner submitted that Federal Service Tribunal had given a period of 120 days to the employer for completing disciplinary process and thereafter it was held by the Service Tribunal that question of back benefit would depend upon outcome of fresh proceedings. Learned counsel submitted that this above stated period of 120 days was binding in terms of judgment of Hon'ble Supreme Court in Zarai Taraqiati Bank Ltd., Islamabad and another v. Aftab Ahmed Kolachi and another, Civil Petition No,1024 of 2008 decided by the honourable Supreme Court on 27-.8-2008. In this case Federal Service Tribunal allowed the employer to complete inquiry within a period of three months. Since the inquiry was not completed within that period a writ petition was filed in this Court for seeking quashment of inquiry proceedings pleading that the inquiry was neither initiated nor completed within the stipulated period of four months. This High Court allowed the Bank to complete inquiry but directed it to pay the amount of back benefits to the employee for their failure to hold the enquiry within the time frame given by the Federal Service Tribunal. The Supreme Court dismissed the petition for leave to appeal. Operative para of order of the Supreme Court reads as under:- "(8) On examination of the judgment of the High Court it clearly transpires that the High Court has not debarred the petitioner/bank from conducting the enquiry but has passed directions for completing the enquiry expeditiously preferably Within the period of three months with a further direction to the respondent/employee to cooperate in holding the enquiry. However, since the petitioner/bank could not initiate the enquiry proceedings within the period of four months stipulated by the Federal Service Tribunal in its judgment as a consequence thereof, they have been directed to make payment of back benefits to the petitioner.
(9) The above direction of the High Court is neither perverse nor fallacious, rather absolutely just and proper as the petitioners cannot be permitted to seek premium for the acts of apathy, stoicism and impassivity, displayed by them, no case for grant of leave is, thus made out."
' Learned counsel also relied upon judgment of this Court in the case of Salma Munawar v. Pakistan Railways and others C.P. No,D-2663 of 2009. This judgment was passed on 19-5-2010 by Division Bench of this Court of which one of use (Shahid Anwar Bajwa, J) was a member. It was ordered that since the inquiry had not been concluded within the time frame allowed employee was entitled to grant of back benefits. The petition was allowed.
5. Mr. M.G. Dastagir, learned counsel for the respondents submitted that judgment of the Federal Service Tribunal is without, jurisdiction and therefore it was not obligation of the respondent No,1 to implement that judgment. Learned counsel relied upon Executive Council, Allama Iqbal Open University and others v Dr. M. Tufail Ilashmi and others 2010 SCM R 1484. Learned counsel also referred to the comments filed by Steel Mills, where it was stated that on 5-5-2010 petitioner submitted application in which he had prayed to forgo his claim for back-benefits and consequently management stopped all further contemplated actions.
6. We have considered the contentions made by the learned counsel and have gone through the record. As far as contention of Mr. M.G. Dastagir that the petitioner has submitted application on 5- 5-2010 and as a consequence thereof all further legal actions were stopped, it is substantially belied by order dated 8-1-2010 by which petitioner was informed that enquiry proceedings could not be finalized/completed due to non-availability of the original record and consequently it was decided to close the case without payment of back benefits. Thus, the reason for closure of the case by the competent authority was that inquiry could not be completed. This competent authority did and stated in January, 2010 much beyond the period of four month granted to it by the Federal Service Tribunal. In this order the competent authority has not, as it could not have, referred to application if any submitted by the petitioner on 5-5-2010. It is quite amazing and surprising that the competent authority decided to close the inquiry and then chose itself not to give back-benefits. This the competent authority could not have done because back-benefits were an entitlement in terms of order of the Federal Service Tribunal which order has been accepted and implemented by the employer in the .Sense of not challenging it, issuing statement of allegation, ordering inquiry and then 17 months later closing the inquiry.
7. Mr. M. G. Dastagir, relied upon Dr. Tufail Hashmi's case to contend that Service Tribunal did not have jurisdiction and therefore order passed by Service Tribunal was an order without jurisdiction.
In Dr. Tufail Hashmi's case the Hon'ble Supreme Court laid down that where there are no statutory rules, even if action is taken under the Removal from Service (Special Powers) Ordinance, the employee of the corporation could not invoke jurisdiction of the Federal Service Tribunal. Judgment in Dr. Tufail Hashmi's case was delivered on April 13, 2010 and learned counsel was not able to point out any para from judgment where the honourable Supreme Court has set at naught judgments of the Federal Service Tribunal which had not been challenged and, much more so in this case, which have been accepted and implemented by the employer.
8. In Muhammad Idrees v. Agricultural Development Bank of Pakistan, PLD 1997 SC 681 the honourable Supreme Court has held that under the doctrine of defacto all the judgments of Federal Service Tribunal which have not been challenged by the employer remain valid and effective. The Supreme Court in the case of Begum Syeda Azra Masood v. Begum Noshaba Moeen and others, 2007 SCM R 914 has held that "a void order is only a type of an illegal order and if it has created certain circumstance an aggrieved person must get rid of it. Therefore contention of the learned counsel that since subsequently it was held by the Supreme Court that Federal Service Tribunal did not have jurisdiction in respect of cases of corporation employees who had been proceeded under RSO therefore, the order of the Service Tribunal was without jurisdiction and therefore no legal consequence could flow from it is misconceived. An order without jurisdiction albite in view of subsequent pronouncement of the Supreme Court in another case, when the order was passed it was willingly and gladly accepted by the respondent No,1 and respondent No,1 did not take any step to get this order set aside by the next higher forum. As has been held by the Supreme Court in Pir Bux's case PLD 1987 SC 145 the parties are bound by the order which are not challenged by them notwithstanding subsequent contrary declaration of law by the Supreme Court.
9. The above are our reasons for the short order by which this Constitution Petition was allowed and the respondent No,1 was directed to pay back-benefits in accordance with the orders of the Federal Service Tribunal.