IJAZ-UL-AHSAN, J.--- The brief facts of the case are that the petitioner was employed with State Life Insurance Corporation of Pakistan and was working as Zonal Head, Sahiwal Zone. He was issued charge-sheet dated 28-8-1996 and 10-9-1996 alleging misconduct. He was dismissed from service vide order dated 8-5-1997.
2. The petitioner filed a constitutional petition before this Court against the order of his dismissal.
The said order was suspended by this Court vide order dated 20-5-1997. The respondent Corporation filed a civil petition for leave to appeal against the order dated 20-5-1997 before the Hon'ble Supreme Court of Pakistan. The apex Court suspended the operation of the order passed by this Court, in consequence of which the petitioner was removed from service. Subsequently, the petitioner filed an appeal before the Federal Service Tribunal ("FST") against the order of his dismissal. The said appeal was dismissed on 9-3-1999. The petitioner challenged the order of the FST before the Hon'ble Supreme Court of Pakistan. Through order dated 15-7-1999 the Hon'ble Supreme Court of Pakistan ordered fresh inquiry into the matter. Simultaneously, the order of the dismissal of the petitioner was also set aside. As a result, the petitioner re-joined his service on 5- 8-1999.
3.
As per orders of the Hon' ble Supreme Court of Pakistan, de novo inquiry was conducted. On completion of the inquiry, the petitioner was exonerated of all charges. The order of exoneration was communicated to the petitioner by the competent authority on 2-3-2001.
4. As a result of his exoneration, the petitioner received his pay fixation sheet dated 23-5-2001 with the following note:- "He remained suspended w,e,f, 8-5-1997 to 2-3-2001. The period of suspension is treated as extra- ordinary leave without pay." (The underlining has been added for emphasis).
5. The petitioner filed a representation against pay fixation as above, particularly the aforementioned note through various departmental appeals/representations. In response, two orders dated 27-9-2001 and 15-10-2001 were passed, whereby the period of his dismissal shown in pay fixation sheet was reduced to 56 days and 465 days.
6. Being dis-satisfied of the aforesaid order, the petitioner filed another departmental representation with the prayer that his period of service shown as extra-ordinary leave should be treated as part of service and le, should be considered eligible for service benefits which had accrued for the period during which. He remained out of service. His representation was partly accepted vide order dated 9-6-2010 insofar as annual increments w,e,f, 1-1-1998 and 1-1-2001 were allowed. However, the department did not pass any order regarding other withheld increments i,e, for the year 1999-2000. Further, he was not considered for due promotion along with his batch-mates.
7. The petitioner again approached this Court for redressal of his grievances. Vide order dated 25- 3-2011 his petition was disposed of with the direction to the petitioner to file another representation before the departmental authority for redressal of his grievances. Accordingly, the petitioner submitted a representation to the competent authority on 29-3-2011. Vide order dated 25-6-2011 the competent authority declined to grant relief, but observed that the petitioner had a right to file departmental appeal under Regulation No,33 of the State Life Employees (Service) Regulations, 1973 before the Appellate Authority.
8. The petitioner filed such appeal. Vide order dated 15-2-2012 the following relief was granted:--- I.The period of 56 days from 8-5-1997 to 2-7-1997 was treated as spent on duty, II. Awarded best performance award as Area Manager relating to the year 1994. However, it may be noted that the other prayers i,e, considering 456 days as period spent on duty, grant of annual increments for the year 1999-2000 and consideration for promotion to next higher posts along with his batch-mates with due regard to his seniority were not granted.
9. The aforesaid order dated 15-2-2012 is assailed through this constitutional petition.
10. The learned counsel for the petitioner submits that it is settled law that no one can be prejudiced in any manner on account of any act or omission of his superior officeRs, He maintains that the impugned order is not sustainable at law, as it does not disclose any legally acceptable reasoning to withhold the relief that the petitioner seeks and is lawfully entitled to. The learned counsel argues that the impugned order also does not fulfil the salutary principles laid down in section 24-A of the General Clauses Act. He points out that the impugned order negates consistent government policy, criteria and rules relating to pro forma promotion and grant of back benefits.
He finally argues that once the order of dismissal was set aside and the petitioner was exonerated of all charges, against him, there was no justification to withhold back-benefits.
11. The learned counsel for the respondents submits that the petitioner had earlier filed a constitutional petition bearing Writ Petition.
' No,1318 of 2012, in which it was prayed that a direction may be issued to the respondents to decide the representation of the petitioner. He submits that the order passed by this Court in Writ Petition No,1318 of 2012 was duly complied with and there is no occasion for him to re-agitate the matter before this Court. He submits that the petitioner did not work from 9-6-1998 to 16-9-1999 (456 days) and cannot be allowed to claim back benefits for the said period. Like-wise, since the petitioner remained dismissed from service from 9-6-1998 to 1-6-1999, the question of granting him annual grade increment for the said period does not arise. He finally argues that the seniority of the petitioner from 1-6-1999 could not be considered for the reason that his ACRs were not available. However, he was considered for promotion in 2007 when the said requirements were fulfilled. He further submits that the pro forma promotion sought by the petitioner cannot be granted.
12. I have heard the learned counsel for the parties, gone through the record and scrutinized the provisions of the State Life Employees Service Regulations, 1973, which have been held by the Hon'ble Supreme Court of Pakistan to be statutary rule's in a judgment reported in 2010 SCMR 1493.
13. The main question requiring determination by this Court is relatively straight forward, i,e, whether an employee, whose services were terminated without just cause and who was exonerated of all charges against him and re-instated from the date of his illegal termination, is entitled to back benefits, salary and statutory promotions. After going through the record and considering the arguments of learned counsel for the parties, in my opinion the answer to the aforenoted question has to be in the affirmative for the following reasons:---
(i) ' The petitioner was dismissed from service on 8-5-1997. After various constitutional petitions, proceedings before the Federal Service Tribunal and the honourable Supreme Court of Pakistan, the order of the petitioner's dismissal was set aside by the honourable Supreme Court of Pakistan vide order dated 15-7-1999 and a fresh inquiry was ordered. The petitioner was allowed to join service on 5-8-1999 and simultaneously as directed by the honourable Supreme Court of Pakistan, a fresh inquiry was undertaken. As a result of the fresh inquiry, he was exonerated of all charges vide order dated 2-3-2001. After his exoneration, the concerned department prepared a salary fixation sheet in which the pay and allowances of the petitioner were calculated. In making such calculations, the concerned department noted that "he remained suspended w,e,f, 8-5-1997 to 2- 3-2001. The period of suspension is treated as extraordinary leave without pay" I have asked the learned counsel for the respondent to justify the conversion of the period during which the petitioner was not allowed to perform duty, into extraordinary leave without pay. He has not been able to show any provision of law or referred to any regulation of the State Life Employees (Service)
Regulations, 1973 amended up to 31-12-1991 that may even remotely suggest any power vesting in the concerned functionaries to convert the period of this nature into extraordinary leave without pay. Further, no reasons have been given by any of the authorities before whom the petitioner filed representations for such conversion;
(ii) Admittedly, the petitioner was exonerated of all charges vide order dated 2-3-2011. The language of the letter through which the petitioner was exonerated of the charges is significant to note. It provides as follows:--- "We are pleased to inform you that the competent authority has exonerated you from the charges/allegations as mentioned in the charge-sheets I & II".
' It may be noted that there is no reference to the period during which the petitioner was not allowed to join duty nor his exoneration was made conditional upon conversion of the period during which he was not allowed to serve into extraordinary leave without pay. The petitioner was exonerated unconditionally from all charges and allegations levelled against him. The net effect of his exoneration would be that he would be deemed never to have been dismissed and to have continued in service of the respondent from the date of dismissal till the date of exoneration i,e, from 8-5-1997 to 2-3-2011.
' The aforesaid salary fixation sheet appears to have been challenged by the petitioner through representations, which resulted in the following reliefs:-
(i) Period of dismissal was reduced to 56 and 445 days;
(ii) Annual increments Were allowed for .1-1-1998 and 1-1-2001, but no further relief regarding increments relating to the years 1999-2000 were given nor was the petitioner considered for promotion along with his batch mates.
' The petitioner challenged withholding of back benefits, withheld increments and non- consideration' for promotion by way of a constitutional petition. However, the said petition was disposed of on 25-3-2011 with the direction to the petitioner to file another representation before the departmental authority for redressal of his grievance. The said representation was not accepted. However, the petitioner was directed to file a departmental appeal under Regulation No,33 of the State Life (Service) Regulations, 1973 to the Appellate Authority. Vide order dated 15-2- 2012, the Appellate Authority granted two reliefs namely:
(i) The period of 56 days from 8-5-1997 to 2-7-1997 was treated as pent on duty;
(iii) A best performance award for the year 1994 was given to the petitioner;
(x) The other prayers relating to 456 days leave, grant of annual increments for the year 1999-2000 and grant of due seniority and promotion along with his batch mates was not granted. No reasons have been recorded by the competent authority for denial of the said reliefs;
(iii) A perusal of the order dated 15-2-2012 indicates that it is self-contradictory, does not show due application of mind and whatever little reasoning has been attempted therein is legally unsustainable. While the period of 56 days w,e,f, 8-5-1997 to 2-7-1997 was allowed to be treated as days when the petitioner was on duty, the period between 9-6-1998 to 16-9-1999 (456 days), which for all intents and purposes, was of the same nature has been treated differently. I am unable to follow the logic behind the language that since the petitioner,, Siddique Akbar remained out of service, it was. Only logical for the Executive Director (Personnel and General Services) to treat the said period as extraordinary leave without pay as wages without work cannot be, paid. This reasoning, it may be noted, loses sight of the fact that the petitioner did not refuse to work, was not unable to work or had not sought leave so as to entitle the department to unilaterally convert it into extraordinary leave without pay. The petitioner's services were terminated without just cause as was found later. He had to undergo the agony of protracted litigation and approaching different forums for redressal of his grievance. He was not allowed to work despite the fact that he was available to perform services. This situation, where a person is ready and willing to work and is not allowed by the employer to do so, cannot attract the principle of "no work no wages". In case, this principle was to be applied, it would cause grave injustice to the petitioner, who was unlawfully removed from service and prevented from performing his job;
(iv) In support of its findings, the Deputy General Manager (P&GS) ' has relied upon Regulation 10(3) and Regulation 11 of the State Life Employees (Pension)
Regulations, 1986. I am afraid, the said regulations have no nexus or connection with the case of the petitioner and it is a clear case of placing reliance on totally irrelevant and inconsequential regulations to deprive the petitioner of a right that has accrued in his favour by operation of law;
(v) The reason given for disallowing annual grade increments for the year 1999 and the year 2000 is that he remained dismissed from service w,e,f, 1998 to 16-9-1999. The said period was treated as extraordinary leave without pay and therefore, there was no reason to allow the petitioner annual increments for the years during which he was not in service. A plain reading of the said reasoning exposes the inherent flaw in the same. It is clear and obvious that by unconditionally exonerating the petitioner of all charges, he was reinstated w,e,f, the date of his termination from service i,e, 8- 5-1997. Therefore, he would not only be entitled to all his salaries from the date of appointment till the date of his reinstatement but also to the increments and other benefits which were granted to other similarly placed officials of the respondent corporation from time to time including annual grade increments. The fact that from 1998 to 16-9-1999, the petitioner stood dismissed from service, has been-washed away by reason of his reinstatement. Consequently, his absence from duty which in any event was forced, can neither be converted into extraordinary leave without pay nor can he be denied annual grade increments for the year during which he was not in service;
(vi) The reason given by the department for non-consideration of the petitioner for promotion in 2002 was that for the past three years, his ACRs were not available, which was the main ingredient in consideration for promotion. While the procedural requirement may not have been fulfilled, the fact that the petitioner had been reinstated w,e,f, 8-5-1997 entitles him to be considered for pro forma promotion on the same terms and on the same basis as other similarly placed colleagues of the petitioner have been considered/promoted;
(vii) It is observed that it was on account of act/omissions of his superior authorities that the petitioner was not allowed to work between 8-5-1997 to 2-3-2001. No one can be punished for an act or omission on the part of his/her employer or superior officers over whose actions he has no power or precedence. Therefore, in the opinion of this Court, it would be irrational to hold the petitioner responsible for his absence from service or failing to perform his duties. He should not and cannot be made to suffer for an act of a higher authority and for no fault on his part, (viii)The denial by the respondents to allow back benefits, promotion and seniority to the petitioner is patently violative of the principal of equality as enshrined in Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. It is not denied by the learned counsel for the respondent that other similarly placed employees of the corporation were granted promotions and increments while the petitioner has been denied the same without just cause. On account of the fact that he had the misfortune of being a victim of an act committed on 8-5-1997 resulting in his dismissal which was subsequently rectified by finding that the order of dismissal was unjust and he was unconditionally exonerated of all charges. Denying the petitioner back benefits, due promotions and increments would add insult the injury, would amount to perpetuation of injustice and would not make amends for the harm and damage done to the petitioner in terms of his dismissal from service which was subsequently found to be unjust. In my opinion, denial to the petitioner of back benefits, increments and promotions offends against the principles of justice. An employee should not be made to suffer for an act that he never did. The petitioner has been exonerated of all charges, he should be deemed to be in service without any break from the date his services were terminated;
(ix) The learned counsel for the respondent has not been able to furnish any good reason, which would have provided justification to deny the petitioner the benefits of his service including back benefits admissible to him under the law, which have been allowed to other similarly placed employees;
(x) It is not the case of the respondents that the petitioner was gainfully employed during the period for which benefits have been denied to him. There is nothing in the record that may suggest that he was denied back benefits on the ground that he was gainfully employed during the period that he was out of the service of the respondents. Even during arguments on this petition this stance was not taken by the learned counsel for the respondents. Therefore, in my opinion, no reason, basis or justification is available anywhere in the record that may provide any lawful basis to sustain the impugned orders;
(xi) In case of "General Manager/Circle Executive Muslim Commercial Bank Limited v. Mahmood Ahmed Butt and another"<.u> (2002 SCM R 1064), the Honourable Supreme Court of Pakistan has held that the grant of service benefits to an employee, who had illegally been kept away from employment was the rule and denial of service benefits to such a reinstated employee was an exception on proof of such person having remained gainfully employed during such a period.
There is nothing on record nor has it been argued that the petitioner was gainfully employed during the period that he was kept away from his job. Consequently, the respondent was under an obligation to follow the rule and not the exception, which in any event was not available in the facts and circumstances of the present case;
(xii) In the case of "Sher Muhammad Shehzad and 22 others v. District Health Officer and another"
(2006 SCM R 421), the honourable apex Court, after recording a finding that the appellants therein were proceeded under the Punjab (Efficiency and Discipline) Rules, 1975, for no default on their part and their services were terminated in an arbitrary manner without providing any reason, went on to hold that:- "The petitioners were made to suffer throughout this period, for no fault on their own. In these circumstances, we fail to understand how their salary can be withheld for the said period when they remained out of service due to whimsical and arbitrary actions of the functionaries. The petitioners have got every right to recover their arreaRs, In this regard, reference may also be made to Pakistan through General Manager, P.W.R., Lahore v. MRs, A.V. Issacs" (PLD 1970 SC 415)" <./>
(xiii) In the case of ?"Binyamin Masih v. Government of Punjab through Secretary, Education, Lahore and 4 others" (2005 SCMR 1032), the honourable Supreme Court of Pakistan examined the question of circumstances where a civil servant remained out of service for no default on his part and such period was treated as leave of the kind due to him by the department. It was observed by the Honourable Court that the authorities could not furnish any justification on the basis whereof the services of the civil servant could be terminated. He had suffered a lot without any default on his part. Therefore, the authorities were directed to pay the salary of the civil servant for the period during which he was out of service; (xiv)ln the case of "Muhammad Hussain and others v. E.D.O. #TBS PLC (Labour) #TBE (Education and others" (2007 SCMR 855), the apex Court examined the question of grant of back benefits to a civil servant, who had been reinstated and came to the conclusion that depriving a civil servant of back benefits for the period for which he remained out of job without any default on.His part would be unjust and harsh. In this regard reference may also be made to Mansoor ul Haq's case 2004 SCMR 1308.
14. The principles of law enunciated in the above judgments of the Honourable Supreme Court of Pakistan are fully attracted to the facts and circumstances of the instant case. For reasons recorded above, this petition is allowed and the petitioner is found entitled to the following benefits which shall be granted to him by the respondents:---
(a) The period of 456 days as noted above is liable to be considered as a period spent on duty;
(b) The annual increments 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 pro forma promotion w,e,f, the date when his batch mates were promoted with due regard to the petitioner's right to seniority. s .