This service appeal is directed against order/letter dated 20.04.2016 whereby the representation preferred by the appellant for grant of back benefits was dismissed.
2. The facts of the case are not in dispute and may be stated as under. The appellant while working as a civil judge was terminated from service on 10.11.2003. The petitioner preferred an appeal (Service Appeal No,16 of 2003) against his termination, which was allowed by this Tribunal through judgment dated 16.05.2014 and the appellant was accordingly reinstated in service. The appellant thereafter filed a representation before the competent authority for grant of back benefits from the date of dismissal to his date of reinstatement. Since appellant remained gainfully employed throughout the intervening period, he also filed an affidavit along with other supporting material demonstrating the amount earned by him. His representation for the grant of back benefits was, however, declined on 20.04.2016, hence this appeal.
3. The operative part of this Tribunal's order dated 16.05.2014 passed in Service Appeal No,16 of 2003 reads as under: For the above reasons we allow this appeal and set aside the order dated 10.11.2003 regarding dispensing with the services of appellant. The appellant is ordered to be reinstated in service. The entitlement of the appellant to claim back benefits, however shall be decided by the learned Authority because no civil servant can claim salary and other benefits without performing the duty therefore learned Authority will determine as to whether appellant is engaged in gainful employment during the intervening period. Needless to say that the learned Authority may probe into allegation of misconduct against the appellant if deemed appropriate. The appellant would continue to be treated as probationer on assumption of duties and acceptance of his appeal in no way would relieve him of conditions for confirmation in accordance with relevant law and rules.
4. There appears to be no dispute on the legal position that the IA appellant is entitled to the back benefits including salary during the time he remained out of service on account of his dismissal which was termed as wrongful by this Tribunal in the afore-mentioned judgment. The only question that requires determination is what should be the quantum of salary given that the appellant remained engaged in gainful employment. The answer to this query can be found in judgment reported as Pakistan through General Manager, P.W.R Lahore v. Mrs. A.V. Issacs PLD 1970 SC 415 at 438, the operative part whereof reads as under: The next question that arises is as to what is to happen in cases where a person is dismissed from service but subsequently the dismissal is held to be unlawful, Should a Government Servant be entitled to recover his pay for the full period he was kept out of service? It seems to me that if the dismissal was wrongful then it was due to no fault of the servant that he was prevented from serving the State. If he is to be treated by virtue of the declaration given by the Court as being still in service, then I see no reason why he should not also given any way of consequential relief the salary for the period as if he was actually rendering service. This is the basis on which arrears of pay were allowed to Suraj Narain Anand by the Federal Court. If during this period he has accepted other employment or engaged in other profitable business, then any amount earned by way of salary from such employment or as profit of such business would, of course, have to be set off against the salary due for two reasons. Firstly, because a Government servant cannot without the permission of Government serve any other master or engage in any other business and secondly, because on general principles too, a person cannot be allowed to reap a doubt advantage.
4. The ratio laid down in the afore-mentioned judgment unambiguously brings out the fact that the appellant is entitled to the salary minus the amount that he earned during the period intervening from his dismissal from service and reinstatement. It appears that this aspect of the matter was not considered by the authority while rejecting the representation of the appellant.
5. This appeal is accordingly allowed and order/letter dated 20.04.2016 is set aside. In the result, the representation filed by the appellant shall be deemed to be pending before the competent authority which shall decide the same afresh after taking into consideration the documents submitted by the appellant along with his affidavit.