S.M. ISHAQ (MEMBER).-The appellant, Muhammad Shoaib, is aggrieved by the order dated 26-2- 1991 whereby the Superintending Engineer (Electricity), Khyber Circle, Peshawar, had treated the period of his absence from duty from 1-8-1985 to 30-9-1990 as without service/financial benefits.
2. The brief facts of the case are that the appellant was appointed Driver in 1978 and posted in Construction Division E, WAPDA, Peshawar. On 24-6-1982 the appellant was placed under suspension on the ground that he illegally installed transformers and worked L.T. Lines in Khyber Agency. He was proceeded against under the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978, and was consequently dismissed from service vide order dated 11-12-1988.
After exhausting the departmental remedy, the appellant came in appeal and the Tribunal vide its judgment dated 26-7-1990 reinstated him into service observing as follows:-- "As a result of the legal infirmities the impugned order is set aside. The appellant is reinstated in service with immediate effect. However, we leave it for the respondents to take proper action, if so desired."
3. Following the above judgment of the Tribunal the respondents reinstated the appellant into service but the Superintending Engineer (Electricity), Khyber Circle,- Peshawar, declared the intervening period of his service i.e. With effect from 1-8-1985 to 30-9-1990 as without service/financial benefits as, according to him, the appellant had remained absent for the entire period. The appellant filed a departmental appeal against this order also on 17-3-1991 which was rejected by the Authority on 14-5-1991 and hence the present appeal before this Tribunal.
4. The learned counsel for the appellant contended that this Tribunal, vide its judgment dated 26- 7-1990, had reinstated the appellant into service and, therefore, he was entitled to the consequential benefits. According to him, the procedural flaws, on the basis of which the Tribunal set aside the impugned order of dismissal, were to be removed by conducting fresh enquiry proceedings and by affording the opportunity of personal hearing to the appellant and thereafter the decision regarding the back benefits had to be made on the basis of fresh enquiry but the respondent-Authority instead of giving him opportunity to explain his position, had forfeited the intervening period of the appellant's service. This action of the respondents was, in no way, justified as it has resulted in a financial loss to the appellant. The learned counsel also contended that the impugned order violates the provision of section 17 of the Civil Servants Act, 1973, which reads as under:-- "Provided further that where a civil servant has, under an order which is later set aside, been dismissed or removed from service or reduced in rank, he shall, on the setting aside of such order, be entitled to such arrears of pay as the authority setting aside such order may determine."
Placing reliance on the above provision the learned counsel maintained that the appellant became entitled to the service benefits when the Tribunal had reinstated him into service and specially because it did not debar the respondents from paying the back benefits. He asserted that the respondents had acted arbitrarily in treating the intervening period i.e. From 1-8-1985 to 30-9- 1990 as without service and thus disallowing the consequential benefits to the appellant. He also maintained that the provisions of FR-54 were wrongly interpreted. The learned counsel also took the plea of the appellant's illness and he referred us to the medical certificates placed on the file.
On the basis of these assertions the learned counsel maintained that the impugned order dated 26-2-1991 may be set aside and the appellant be allowed full back benefits.
5. The Departmental Representative, on the other hand, submitted that the impugned order for forfeiture of the appellant's service for the period from 1-8-1985 to 30-9-1990 is quite valid and was rightly passed under FR-18 wherein it is provided that after five years' continuous absence from duty whether with or without leave a Government servant ceases to be in Government service. He further submitted that Rule 27 of the WAPDA Employees Leave Rules applies to the instant case wherein the same provision has been made. His main emphasis was that the Tribunal in its judgment dated 26-7-1990, had left the matter to the respondents for taking proper action and the respondents, therefore, after considering the provisions of FR-54 and FR-18 read with Rule 27 of the WAPDA Employees Leave Rules had rightly forfeited the service of the appellant. He also maintained that the appellant had remained absent for a long time from 1-8-1985 to 30-9-1990 and if it is assumed that lie was ill during this period, as stated by the appellant, even then it was incumbent upon him to have produced medical certificates duly recommended by a Medical Officer, WAPDA, to the respondent-Authority but he failed to do so. Lastly he submitted that the respondents were justified in passing the impugned order and, therefore, no interference is called for by this Tribunal.
6. We have heard the parties and perused the record. We find that this Tribunal vide its judgment dated 26-7-1990 in Appeal No. 123(P) of 1989, after finding certain infirmities in the procedure, had set aside the impugned order dated 11-12-1988 and reinstated the appellant into service but without allowing any back benefits. In the said appeal before the Tribunal the appellant had in fact raised two-fold contentions. The first was that the order of dismissal from service was passed retrospectively and the other was that neither personal hearing was afforded to him nor any proper enquiry was held. It was, in these circumstances, that the Tribunal set aside the impugned order dated 11-12-1988 vide its judgment, referred to above on technical grounds and directed the appellant's reinstatement into service with immediate effect leaving it open for the respondents to take proper action, if so desired. The contention of the learned counsel that on the setting aside of the order of dismissal by the Service Tribunal the appellant was entitled to the bath 1'cac,fits under section 17 of the Civil Servants Act, 1973, obviously he was not acquitted honourably of the charge but he was is Of no avail to reinstated into service on technical grounds and, therefore the appellant cannot claim that under FRA-54 he was entitled to the back benefits on his reinstatement into service.
7. As regards the other plea of forfeiture of the service of the appellant we are of the view that he did not remain absent wilfully but his absence was mainly due to the disciplinary proceedings against him. The appellant was initially suspended on 29-6-1982 but he was reinstated by order dated 5-9-1983. Again disciplinary proceedings were initiated against him and as a result he was dismissed from service vide order dated 10-12-1988 with retrospective effect which was not valid.
The appellant, however, approached this Tribunal and consequently he was reinstated into service vide order dated 26-7-1990. In our view, therefore, in the present case, no help can be sought from the provisions of FR-18 for forfeiting the services of the appellant as he had remained away, as already stated, mainly on account of the disciplinary proceedings against him and he did not commit any violation not to have resumed his duty. Therefore, the appellant's period of absence will be treated as extraordinary leave without pay. Since the appellant has failed to produce any medical certificate from any authorised medical attendant of the WAPDA Hospital either before us or before the respondent-Authority, his contention that for the period he remained ill should be treated as medical leave is also of no avail to him.
8. In the result the appeal is disposed of accordingly with no order as to costs.