Tariq Parvez, J.--Lengthy round of litigation had finally reached to this Court through Civil Petition for Leave to Appeal No, 1710 of 2010. The petition came up for hearing on 21.12.2012 and the same was converted into appeal, inter alia, on the grounds to consider the following questions as formulated in the leave granting order:--
(a) whether for the period the respondent remained suspended/dismissed from service, he shall be entitled to annual increment?
(b) when the department has considered the respondent on extra-ordinary leave without pay for the period of 456 days; whether, under the law. he could be held entitled for payment of the salary for these days, treating him to be present on duty?
(c) whether the period during which the respondent remained suspended/dismissed from service can be considered while determining his seniority?
2. The respondent, while serving as Zonal Head, Sahiwal Zone of State Life Insurance Corporation of Pakistan was charge sheeted on 28.08.1996 and 10.09.1996 on the charges of misappropriation and embezzlement. He was proceeded against departmentally and was dismissed from service on 08.05.1997. The dismissal order was challenged by filing Writ Petition before the Lahore High. Court, Multan Bench, where dismissal order was suspended on 20.05.1997 and ultimately the said Writ Petition was allowed and dismissal order was quashed by the High Court vide order dated 30.03.1998. The appellant then filed Civil Petition for leave to appeal before this Court, which petition was converted into appeal and allowed and the judgment of the High Court dated 30.03.1998 was set aside with direction to the respondent to seek redressal of his grievance before the competent forum i,e, the Federal Service Tribunal. Consequently, the respondent filed two Service Appeals before the Federal Service Tribunal but both were dismissed on 09.03.1999; the judgment of the Service Tribunal was challenged by the respondent again by two separate Civil Petitions before this Court and this. Court on 15.07.1999 allowed and set aside the order of the Service Tribunal with the observation that the disciplinary proceedings before the Department shall be deemed to be pending and shall be decided afresh after constitution of enquiry committee in accordance with law. The freshly constituted enquiry committee on 02.03.2001 exonerated the respondent from the charges served upon him through the charge sheets mentioned hereinabove. After exoneration the competent authority decided that the period during which the respondent remained dismissed from service i,e, from 08.05.1997 to 02.03.2001 shall be treated as extra ordinary leave without pay.
The above decision of the authority was challenged by the respondent through representations dated 16.01.2001 and 21.04.2002. His representations were not acceded to. However, after about 8/9 years, the respondent filed yet another representation on 01.07.2010 and this time the competent authority vide order dated 27.07.2010 decided that the period from 08.05.1997 to 02.07.1997 (56 days) and from 09.06.1998 to 05.08.1999 (445 days), when the respondent was not in service be treated as extra ordinary leave without pay. This was again challenged by the respondent through Constitutional Petition No, 1829 of 2010, which was disposed of in the terms that the respondent shall file representation which shall be decided by the department within three months. It appears that since no order was passed on the representation, a fresh Writ Petition was filed by the respondent Bearing No, 1318 of 2012 which was disposed of on 20.01.2012 with direction that if the appeal of the respondent is pending, the same shall be deiced within two weeks.
Upon fresh appeal filed on 06.07.2011, the competent authority vide order dated 15.02.2012 decided the appeal and granted relief to the respondent only to the extent that 56 days i,e, w,e,f, 08.05.1997 to 02.07.1997 be treated as spent on duty whereas rest of the relief was declined.
Being not satisfied, the respondent filed yet another Writ Petition Bearing No, 7249/2012, which was subject matter of instant proceedings and on 12.09.2012, the said Writ Petition was allowed with the following relief given to the respondent:--
(a) That the period of 456 days as noted above is liable to be considered as a period spent on duty.
(b) The annual increment for the years 1999 and 2000 may be granted to the petitioner as the same have been granted to other similarly placed employees; and
(c) The petitioner may be considered for proforma promotion w,e,f, the date when his batch mate were promoted with due record to the petitioner's right to seniority; Hence, this appeal by leave of the Court.
3. The principal contention, of the learned counsel for the appellant-Corporation is that no relief as claimed by the respondent could be granted to him and that the learned High Court in Constitutional jurisdiction has acted in a manner as if it was hearing an appeal.
His submission is that as far as awarding relief of considering the respondent to be on duty for the period he remained under suspension or dismissal, is against the law and facts because when the respondent has not attended the office physically nor he was assigned any duty/job, he cannot be held entitled to any remuneration on the principle 'nor work, no salary' and thus the respondent has been awarded something which was not his entitlement.
The learned counsel submits that similarly, the relief of awarding two increments for two years i,e, 1999-2000 and 2000-2001 have wrongly been granted to the respondent against the fact that in these two years, he had not provided any services to the appellant and thus is not entitled to increment for the period, he has not worked.
The learned counsel has also challenged the relief of giving proforma promotion to the respondent on the ground that when in the year 2002, the cases of batch mates of the respondent were placed before the competent authority for consideration for promotion, the respondent could not be promoted because of non-availability of his three previous ACRs, as during such period he was either under suspension or was dismissed by the order of competent authority, as such, according to the learned counsel, he cannot claim proforma promotion. He has added that, however, when the right of promotion became due to the respondent in the year 2007, he was given promotion but he cannot be given promotion with retrospective effect.
The learned counsel has further argued that on the principle of laches, the learned High Court should have dismissed the case of the respondent at preliminary stage because the order of the competent authority fixing his pay, etc. was passed in the year 2001, which for the first time was challenged by the respondent through filing the Constitutional Petition-before the High Court subject matter of instant proceedings, after a lapse of 9/10 years. He submits that if a party approaches the Court after the period of limitation or whose case is hit by laches, the Court has no jurisdiction to entertain the claim which has become barred by time. His submission is that in view of above, the respondent was not entitled to equitable relief sought after almost 10 years from the High Court.
In support of his submission regarding limitation that the same could not have been condoned by consent of the parties and the question of filing petition with the delay and to be hit by principle of laches, reliance has been placed on Ali Muhammad vs. Muhammad Shari (PLD 1996 SC 292) and Chairman, State Life Insurance Corporation vs. Hamayun Irfan (2010 SCM R 1495).
4. On the other hand, learned counsel appearing for the respondent submits that the question of laches cannot be raised by the appellant for more than one reason because it was never the case of the appellant before the learned Judge in Chambers of the High Court nor in the memo. of the appeal as the same has been raised before this Court for the first time.
He submits that the respondent remained vigilant in pursuing his grievance though by making repealed representation both against his suspension/dismissal and later on, after his reinstatement regarding fixation of his emoluments, etc. He states that the respondent filed Constitutional Petition No, 18629 of 2010 before the High Court, which came up for hearing on 25.03.2010 and it was observed by the learned Single Judge in Chambers of the High Court as under: -- "2. Both the counsels agree that let the petitioner file a representation to the competent authority in this behalf, who shall examine the same and decide the matter fairly, justly and strictly in accordance with law after affording full opportunity of hearing to the petitioner including the right of producing evidence.
3. Disposed of in the above terms with direction that the competent authority shall decide the matter expeditiously within three months of the receipt of such representation."
The learned counsel submits that in view of consent order, the respondent was to file a representation to the competent authority, which was accordingly filed but his representation was not entertained and he was advised by the department itself that he shall file an appeal, as envisaged under Regulation No, 33 of the State Life Employees Service Regulations, 1973; thus, according to the learned counsel, no question of limitation or laches arises when the department .i,e, the appellant itself has been asking the respondent to prefer an appeal pursuant to the consent order referred to hereinabove.
Qua the relief of performa promotion given to the respondent w,e,f, the date when his batch mates were promoted, the learned counsel has argued that same is his right because if the respondent was charged and was removed from service or if in the year 2002, his other colleagues were promoted, but because of deficiency of his ACR, his case was not considered, which fault could not be attributed to the respondent and relief in this regard has rightly been granted to him. He also states that the order of the competent authority dated 02.03.2001 exonerating the respondent from the charges levelled against him vide charge sheets dated 28.08.1996 & 10.09.1996, is a clear chit in his favour and would be considered as if he was never suspended nor dismissed and shall assume the position as was held by him, deeming him to be in service w,e,f, the date when the said two charge sheets were served upon him.
5. We have heard the arguments of the learned counsel for the parties and have also gone through different documents, so brought on record. Undisputed facts are that the respondent was issued two charge sheets mentioned in the preceding paras herein above, on the basis of which he was dismissed from service but was reinstated under the order of this Court with the directions that fresh enquiry should be held against him. In the later enquiry, the respondent was exonerated from the charges, which result of the enquiry was duly communicated to him vide letter dated 12.03.2001.
The precise question before this Court is when an employee of the appellant was issued charge sheets, which charges were ultimately not proved and he was exonerated of the charges and that during the period .he remained suspended or was dismissed, shall it adversely effect the service record of the respondent, both in terms of continuation of service and in terms of his right to receive pay and salary, etc.
6. Although the competent authority has held that the respondent be treated on duty for 56 days i,e, w.e.f, 08.05.1997 to 02.07.1997 and that the period from 09.06.1998 to 16.09.1999 (456 days) be treated as extra-ordinary leave but they have denied him salary for such period because he physically remained out of service and, therefore, he was held not entitled to any pay for having done no work. The competent authority has also granted him two annual increments for the years 1999-2000 and 2000-2001 but denied him increments for the years 1999 & 2000, which became due on 01.01.2001. He was also refused proforma promotion because of deficiency, of his ACR for the year 2003.
7. Once an employee is reinstated in service after his exoneration of the charges levelled against him, the period during which he remained either suspended or dismissed cannot be attributed as a fault on his part. His absence during this period was not voluntary on his part but it was due to order of the appellant that he was restrained not to attend his job/duty because on the basis of charge sheets, he, was suspended and later on dismissed. At the moment, his exoneration from the charges would mean that he shall stand restored in service, as if he was never out of service' of the appellant. If the absence of the respondent or non-attending the work was not volunteer act on the part of the respondent and was due to steps taken by the appellant, in no manner the service record of the respondent can be adversely effected nor he can be denied any benefit to which he was entitled, if he had not been suspended nor' dismissed.
8. So far as the question of laches is concerned, apparently the consenting order was passed by the learned Single Judge in Chambers of the High Court on 25.03.2011 where no question of laches was raised and subsequent thereto when the representation was filed by the respondent, he was advised by the department itself that he shall instead C file an appeal and no question of laches was even raised by the departmental authority. Even before this Court except oral arguments in this regard, this question has not been setup specifically in the memo. of appeal.
9. Argument of the learned counsel for the appellant that the order of the High Court is without jurisdiction on the ground that the matter was brought before at beyond the limitation and the High Court should have dismissed the petition in limine, does not appear to be a valid argument; limitation is a bar against a party in pursuing its cause and not bar regarding assumption of jurisdiction by a Court because the Court for justified reasons can condone the time limitation.
Even otherwise, question of limitation is not involved in this case except lathes as raised but since the department has never raised any objection of delay against the respondent in approaching the High Court, it cannot react against the respondent. Even otherwise, perusal of record reveals that the respondent had been pursuing his grievance qua re-fixation of pay and promotion, etc. throughout when he has filed his departmental appeal back in the year 2007 on 20th August.
10. For the above stated reasons, we find no force in this appeal, as such the same is dismissed; however, in para-14 of the impugned judgment it is recorded that the period of 456 days as noted above is liable to be considered as a period "spent on duty" (emphasis provided); the said sentence is modified in the terms that it shall be read as the period of 456 days as noted above is liable to be considered as a period, "remained in service" (emphasis provided).