' MUHAMMAD ATHER SAEED, J.---This civil petition for leave to appeal has been filed against the judgment of the learned High Court of Sindh dated 15.8.2012 in Constitution Petition No, D- 3638/2010, whereby the learned Sindh High Court while ordering the reinstatement of the petitioner in service also held that it shall be available to the competent authority to impose any minor penalty on the petitioner in accordance with the rules of the organization and also held that since the petitioner is, partly responsible and not free from blemish, in the circumstances, the petitioner was not entitled to back benefits except for the purpose of seniority and counting of the intervening period for pensionary benefits. Leave to appeal was granted by this Court by its order dated 28.12.2012, which reads as under:--- "ORDER ' Khilji Arif Hussain, J.---Petitioner is aggrieved by the Judgment of learned Division Bench of the High Court of Sindh whereby petition was allowed with direction to reinstate the petitioner in service while minor penalty was awarded that the petitioner will not be entitled to back benefits except seniority and counting of the intervening period for pensionary benefits.
' Heard learned ASC at length. Only allegations against the petitioner are that:---
1. He is late comer.
2. Missing from office without intimation.
3. He avails frequent leave.
4. There was report that on immediate L.M. Dated 21st March, 2006 regarding outstanding Annual Inspection Report and AP (Advance Paras) for the year 1997 and for some of the years was marked to him with the instruction to put up the same on priority basis but he failed to do so till 19th April, 2006.
5. He was absent on 20.4.2006."
' The learned High Court while allowing the petition and setting aside the removal order from service of petitioner converting into one of minor penalty not given any reason why the petitioner is liable for ' Leave to appeal is granted, inter alia, to consider whether in the circumstances of the case, the learned High Court can award minor penalty. "
2. Brief facts of the case are that the appellant had joined the respondent-company namely Civil Aviation Authority and was working as a permanent employee on the post of Assistant Account Officer in 1988 in Finance Section at Karachi. On 25.4.2007, a Show-Cause Notice was issued to the appellant, in which it was mentioned that the appellant was a habitual late comer and even during working hours, petitioner used to remain missing from his office without intimation besides availing frequent leaves. It was also mentioned that on 21.3.2006 a letter regarding outstanding AIR (Annual Inspection Reports) and AP (Advance Paras) for the years 1997-98, 1999-2000, 2000-2001, 2001- 2002 and 2002-2003 was marked lo the appellant with the instructions to put up the same on priority but he failed to do so till 19th April, 2006 and on 20th April, 2006 he remained absent. He was asked to show-cause as to why a major penalty of "Dismissal from Service" should not be imposed on him under section 3, sub-section (1)(e) of Removal from Service (Special Powers) Ordinance, 2000.
3. The appellant filed a detailed reply dated 5.5.2007 and the proceedings of the Show-Cause Notice culminated in Order No, HQCAA/2487/2404/2100/HR, dated 10.10.2007, by which the petitioner was awarded the major penalty of dismissal from service. The appellant filed appeal against such dismissal before Secretary, Defence, who was also the Chairman of the Respondent's Board of Directors and his appeal was allowed by Order No, HQCAA/2487/2404/2001/ HRER&RM(OR), dated 20.10.2010 to the extent that the major penalty of dismissal from service was converted into major penalty of compulsory retirement w,e,f, 10.10.2007. Aggrieved by this order, the appellant filed a Writ Petition in the learned High Court of Sindh, which was disposed of by the impugned judgment, hence this appeal by the leave of the Court.
4. We have heard Mr. S. Mahmood Abbas, the learned ASC for the appellant and Mr. Sanaullah Noor Ghouri, learned ASC for the respondents.
5. The main contention of the learned ASC is that the learned High Court of Sindh erred in depriving the appellant of back benefits after reinstating him in his service by holding him partially responsible and not free from blemish without giving any reason in support of this direction. He further submitted that the learned High Court has in the earlier part of the judgment analyzed the Show-Cause Notice and made a list of the charges alleged in the Show-Cause Notice, which is reproduced hereunder:---
1. The petitioner does not take interest in the assigned job.
2. He is late comer.
3. Missing from office without intimation.
4. He avails frequent leave.
5. There was report that on immediate L.M. Dated 21st March, 2006 regarding outstanding Annual Inspection Report and AP (Advance Paras) for the year 1997 and for some of the years was marked to him with the instruction to put up the same on priority basis but he failed to do so till 19th April, 2006.
6. He was absent on 20.4.2006."
' The learned High Court held that as far as Charges No, 1 to 4 are concerned no specific instance of absence or late coming or leaving the place of work has been pointed out and as far as Charge No, 6 is concerned, it is absence for a single day and it is well-settled law that absence without leave of one day does not constitute misconduct, which could warrant imposition of major punishment in employment matters. However, the learned High Court considered the Charge No, 5 to be a specific charge and stated that appellant has not given any explanation as to why he did not comply with it for 16 days. He submitted that the learned High Court has only taken note of paragraph 5 of his reply, whereas they have not considered paragraphs 6, 7 and 8, in which the reasons for delay were explained in which it was also pointed out that after availing leave from 20 to 25.4.2006, he rejoined his duty on 26.4.2006 and complied with the provisions of the above letter on 27th April, 2006. These facts were not denied before the learned High Court by the respondents, but on 27th April, the learned High Court erroneously held that non-compliance of the letter from 03.4.2006 to 19.4.2006 was not properly explained. The learned ASC further filed an affidavit of the petitioner stating that from the date of dismissal from service on 10.10.2007 till his reinstatement by the order of learned. High Court of Sindh at Karachi dated 15.8.2012, he was not gainfully employed during this entire period. He, therefore, prayed that the impugned judgment may be modified to the extent that appellant may be allowed back benefits from the date of his dismissal i,e, 10.10.2007 to the date of his reinstatement i,e, 15.8.2012.
6. The learned ASC for the respondents strongly opposed the arguments of the learned counsel for the appellant and supported the impugned judgment to the extent of not allowing the appellant the back benefits. He also informed the Court that the respondents have treated the period from 10.10.2007 to 15.8.2012 as leave without pay. He further submitted that the learned High Court had correctly observed that the petitioner is also responsible and not free from blemish as he has not offered any satisfactory explanation as to why he failed to comply with the letter mentioned in Charge No,
5. He, therefore, prayed that the appeal being meritless may be dismissed.
7. We have considered the case in the light of the arguments of the learned ASCs and have perused the entire record of the case including the impugned judgment, dismissal order, appellate order, Show-Cause Notice and the reply of the appellant.
8. We are inclined to agree with the learned ASC for the appellant that the learned High Court has not given any reason for holding the appellant partly responsible for the blemish after holding that Charges No, 1 to 4 remained unproved.
9. A perusal of the reply to the Show-Cause Notice by the appellant shows that as far as Charge No, 5 is concerned, he had explained the reasons for the delay in paragraphs No, 5 to 8 of the reply, which read as under:--- "5. Regarding the charge about the noncompliance of the Most Immediate L.M. No, JIAP/ 3419/Audit/1997-03/ AIR-AP/RV, dated 21st March, 2006, it is stated that the subject letter was first marked to D.M. (Disbursement), Mr. Ahmed Shamsul Haq on 22nd March, 2006 to put up on priority basis, but for some unknown reasons the same was re-marked to me on 3rd April, 2006 after lapse of 13 previous days. (This shows how important/immediate this letter was meant to my honourable controlling officer). Copy of the subject letter is enclosed as evidence and for ready reference as annex-2.
6. Besides, my controlling, officer was well aware that I have no experience of Audit work as I have never been assigned any job related to Audit work during my entire service and that during the period from 1st to 20th of every month I have very important & time oriented tasks to be completed promptly e.g:
(a) Closing of Monthly Cash Book.
(b) Closing of Monthly Bank Book.
(c) Closing of Monthly accounts.
(d) Preparation & Submission of monthly Disbursement Accounts to HQCAA. (Copy attached at Annex-3)
(e) Preparation & Submission of monthly Fund Management Report to HQCAA. (Copy attached at Annex-4)
(I) Preparation & Submission of monthly General Sales Tax Return to Controller of Sales Tax & Central Excise. (Copy attached at Annex-5)
(g) Preparation & Submission of Quarterly Income. Tax Return to C.M. Tax, HQCAA for onward submission to Income Tax Deptt. (Copy attached at Annex-6)
(h) Preparation & Submission of Quarterly Accounts to HQCAA. (Copy attached at " Annex-7).
7. However, despite considerable load of routine work I kept trying to accomplish the challenging task of replying AIR (Annual Inspector Report) and ' AP (Advance Paras) as mentioned in the subject L.M. In a very short period as about two weeks had already been lapsed due to the reason best known to my controlling officer. During this unusual, hard nature of task & biased attitude and intimation from my controlling officer I eventually got sick (High Blood pressure & severe headache) and as per doctor's advise I went on leave for six days (from 20th April to 25th April, 2006). Copy of the medical advise and leave application form is attached at annexure-8a-8d.
8. I joined my duties on 26th April, 2006 after availing six days leave on medical ground and submitted the replies of the AIRs and APs of the said L.M. On ,27th April, 2006. (copies are enclosed at annexure-9a-9v).
10. A perusal of the above paragraphs shows that the appellant had admitted his inexperience in audit work and submitted that during the period from 1st to 20th of every month he had to perform a number of tasks, which have to be completed promptly. He has also stated that despite considerable load of work he was taking time out to accomplish the task assigned to him through the letter dated 21.3.2006, which was received by him on 03.4.2006 and has also intimated that he had complied with the provisions of this letter on 27.4.2008. From a perusal of the record it is clear that this explanation was not considered by the competent authority in his dismissal order nor by the appellate authority and the learned High Court has also failed to consider these paragraphs before taking a decision on Charge No,
5. From a perusal of the record we have also noted that at no stage the respondents have rebutted or denied the explanation made in paragraphs 6 to 8 of the reply to the Show Cause Notice dated 5.5.2007. We are, therefore, of the considered view that Charge No, 5 has been properly explained by the appellant and only for cogent reasons this explanation could have been rejected, which the learned High Court has failed to do. We are also of the considered view that once the learned High Court had reinstated the appellant into service, it should have allowed the back benefits unless it was proved that the appellant had obtained a gainful employment during the period of dismissal or was making some earnings. The affidavit of the appellant has also not been countered by the respondents.
11. We are therefore, of the considered opinion that the impugned judgment cannot be sustained on the point of denial of back benefits to the appellant. We, therefore, allow this appeal and modify the impugned judgment to the extent that the learned High Court's decision holding that the appellant is not entitled to back benefits is set aside and the respondents are directed to pay the back benefits to the appellant from the date of his dismissal i,e, 10.1(12007 to 15.8.2012 i,e, the date of reinstatement.
' This appeal is disposed of in the above manner.
High Court Judgment Set Aside/Appeal and Back Benefits Allowed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.