IFTIKHAR MUHAMMAD CHAUDHRY, J.---These appeals have been filed by leave of the Court against the judgments dated 29-5-2001 and 26-6-2001 passed by Federal Service Tribunal, Karachi. Relevant para. From leave granting order is reproduced hereinbelow:-- "7. After hearing Mr. Wasim Sajjad, learned Senior Advocate Supreme Court appearing in support of Civil Petitions Nos. 2140 to 2148 of 2001 and. Mr. Javed Altaf, learned Advocate Supreme Court appearing on behalf of the petitioner PIA Corporation in Civil Petitions Nos.2210 to 2218 of 2001, we are inclined to grant leave to appeal to consider whether the appeals filed by the petitioners in the first set before the Tribunal were not competent for want of making departmental appeals and whether they were reinstated into service on correct premises. Leave to appeal is also granted to consider whether the petitioners in the first set are entitled to back benefits and that the Tribunal was not justified in law in treating the period of their termination as leave without pay. The petitions of the second set are barred by one day each, therefore, leave granted in this set shall be subject to determination of the question of limitation."
2. Relevant facts of the case are that appellants Abdul. Hafeez Abbasi and others joined Pakistan International Airlines Corporation (herenafter referred to as the "PIAC") as its employees in different cadres.
Particulars of their services are reproduced hereinbelow:-- Appeal Number Appellant Status and Date of Appointment Date of Permanent Absorption 928(K) 98 Abdul Hafeez Abbasi Work Officer 8-10-1995 8-10-1995 vide letter dated 11-1-1996 929 (K) 98 Zakir Hussain Traffic Officer 3-5-1995 3-5-1995 vide letter dated 26-11-1995 903 (K) 98 Ajeet Kumar Engineer 13-8-1995 13-8-1995 932 (K) 98 S.Fayaz Ali Shah Law Officer 7-5-1995 7-5-1995 vide letter dated 14-1-1996 933 (K) 98 Javed A. Pechuho Traffic Officer 7-5-1995 7-5-1995 vide letter date 14-1-1996 934 (K) 98 Riaz Ahmed Mangi Traffic Officer 1-4-1996 1-4-1996 935 (K) 98 Shoaib Ahmed Dahri Assistant Manager (Public Relations) 28-5-199528-5-1995 vide letter dated 9-1-1996 and confirmation vide letter dated 15-2-1996 936 (K) 98 Shah Nawaz 8-10-1995 Law Officer 8-10-1995 8-10-1995 vide letter dated 20-5-1996 It so happened that services of above employees were terminated on 20-3-1997 by issuing separate letters to them. Relevant para. Therefrom is reproduced hereinbelow:- "TERMINATION FROM SERVICES On scrutiny, it has been found that your appointment as Works Officer in PIAC service is irregular. It was without inviting applications through advertisement, without competition on merits. Hence void ab initio.
Therefore, your services are terminated forthwith without any stigma. Since your termination is simpliciter, you will be entitled to apply for a position as and when vacancy is advertised on the basis of your qualification and merits.
You will be issued Service Certificate and paid your legal dues on submission of attached Clearance Certificate.
Please arrange to surrender/return the following PIA property/documents to the concerned section against acknowledgerment:
1. PIA I.D. Card 2. Airport Entry Pass.
3. PIA Family Card(s)
4. PIA Passport, if any
5. PIA Uniforms 6. PIA equipment, if any .
This has the approval of competent authority ."
3. Appellants Abdul Hafeez Abbasi and others challenged above order by filing civil suits before High Court of Sindh. The P.I.A.C. Contended that during pendency of the suits Service. Tribunals Act, 1973 was amended by adding section 2-A, according to which the employees of P.I.A.C. Were treated as civil servants for limited purpose. On promulgation of section 2-A of the Act, P.I.A.C. (appellants) filed applications before the High Court, contending therein that the suits filed by the employees have abated. Such position taken up by employer was controverted by the employees. However, learned High Court vide judgment dated 20-5-1998 declared the suits of the employees as having abated. It may be noted that during pendency of suits before the High Court appellants Abdul Hafeez Abbasi and others continued as employees of the P.I.A.C. On account of interim stay issued in their favour by the Court and when in pursuance of order dated 20-5-1998 stay order operating in their favour was vacated, the P.I.A.C. On 21-5-1998 issued another order stating therein that as suits filed by them have abated, therefore, original order dated 20-3-1997 has become operative and taken effect. Relevant para. Therefrom reads as under: "4. In view of the order, dated 20th May, 1998 of the Hon'ble High Court the termination of your service vide our Letter No, GW 0397005, dated 20-3-1997, has become operative and taken effect. Accordingly, your name stands struck off from the Rolls of the Corporation, and consequently you stand released and relieved from duty with immediate effect."
4. Appellants Abdul Hafeez Abbasi and others within 30 days from the date of passing of order dated 21-5- 1998 passed by PIAC filed appeals before the Federal Service Tribunal on 21-6-1998.
5. Federal Service Tribunal appeals filed by the employees vide impugned judgment. Operative para. Therefrom reads as under: "In view of the above discussion, we are of the considered opinion that the respondents have terminated the appellants without justification, as such, we set aside both the termination orders dated 20-3-1997 and 21-5- 1998 and direct that the appellants be reinstated forthwith in the same position from which they were terminated. The period which they remained out of job be treated as leave without pay."
6. Against impugned judgment Abdul Hafeez Abbasi and others filed petitions which have been converted into Appeals Nos. 2117 to 2125 of 2001 for the relief of back benefits and are being placed in Category "A" where PIAC also filed civil petitions which have been converted into Appeals Nos. 2126 to 2134 of 2001 and 12 of 2001 for setting aside impugned judgment and restoration of the termination order of the employees and are placed in Category "B" for proper reference hereinafter.
7. In our opinion it would be appropriate to take up cases of Category "B" for decision before the cases of Category "A".
8. Learned counsel for appellants contended that appeals filed by the employees were not competent before Federal Service Tribunal as they were filed without exhausting departmental remedy, as such were liable to be dismissed on this score alone. Reliance was placed by him on 1992 SCM R 1789 and 2002 SCM R 82.
9. Learned counsel for Abdul Hafeez Abbasi and others contended that as appellants are not civil servants for the purpose of Civil Servants Act, therefore, they had no statutory right to file departmental proceedings under statutory rules, therefore, in view of the judgment reported in 1997 SCMR 197 no departmental appeal/revision/review for making appeal before FST was competent, therefore, they rightly invoked the jurisdiction of Federal Service Tribunal without filing departmental appeal/representation against termination order of their services.
10. A cursory glance on the facts narrated hereinabove would reveal that appellants Abdul Hafeez Abbasi and others against the termination of their services filed civil suits in the High Court of Sindh. When the suits were pending section 2-A was added in Service Tribunals Act, 1973. According to which the employees of the Corporation owned by the Government, acquired a right to agitate their grievance before the Service Tribunal being civil servants for limited purpose. Therefore, on promulgation of section 2-A in Service Tribunals Act, PIAC itself filed application before trial Court/High Court of Sindh, contending that the suits filed by the employees have abated. Ultimately their such plea was accepted leaving the employees to avail remedy before the Service Tribunal. Now question is whether employees whose suits were abated were bound to follow, strictly procedure laid down under section 4 of the Services Tribunals Act, 1973. A perusal whereof would show that a civil servant under the Civil Servants Act is obliged to file appeal to the department under the Statutory Rules meant for seeking department remedy before invoking jurisdiction of the Service Tribunal, and if such rules have not been framed then he is obliged to appeal to the next higher authority of the department under section 22(2) of the Civil servants Act. But as far as employees of PIAC are concerned they are not civil servants for the purpose of Civil Servants Act under section 2(2) of the Act.
Neither there is any statutory rules or forum created by a statute to entertain such appeals/revisions. In addition to it, as far as Departmental Authorities are concerned they also do not enjoy statutory powers to entertain departmental appeal filed by aggrieved employees being members of the Corporation, which is being run by the Board of Governors, and if the Board of Governors have framed any regulations in this behalf those have not been authenticated by the Federal Government, therefore, in absence of statutory rules employees of PIAC are not obliged to file departmental appeals before approaching Service Tribunal for redressal of their grievance as it has been held by this Court in the case of Syed Aftab Ahmad and others v. K.E.S.C and others (1999 SCM R 197) relevant para. Therefrom reads as under: "5. Reverting to the last ground found favour with the Tribunal, namely, that some of the petitioners had approached the Service Tribunal without filing an appeal or representation or before expiry of 90 days from the date of filing of an appeal or representation, it may be stated that in the absence of any statutory provision or any statutory rule providing a right of appeal or right of filing a representation, the requirement of filing such an appeal or representation provided in section 4 of the Act will not be applicable. The Service Tribunal was supposed to examine this question on the basis of the law or the relevant rules applicable to the employees concerned. Secondly, some of the above petitions have arisen out of Constitutional petitions which were filed in the High Court and which were treated as abated under section 6 of the Act and, therefore, the question of filing departmental appeals/representations in such cases would not arise. In any case, this question is to be examined by the Service Tribunal afresh. We would, therefore, convert civil petitions arisen from the judgments of Service Tribunal into appeals and would set aside the judgments of the Service Tribunal and would remand the cases to it to decide the matters on merits in the light of the observations contained herein. As regards civil petitions in which the High Court has declined Constitutional petitions on the ground that the petitoners should have approached the Service Tribunal, We would uphold the order of the High Court with the observation that in case the petitioners file applications for condonation of delay till the filing of appeals the same may be considered sympathetically and the petitioners may not be knocked out on technical ground."
It may be noted in Gulbat Khan v. Water and Power Development Authority through its Chairman, Lahore and another (1992 SCM R 1789) it was observed that if any appeal, application for review or representation to a departmental authority is provided from the order passed against a civil servant availing of such remedy by him is the condition precedent for filing an appeal before the Tribunal. Such appeal, application for review or representation as the case may be was instituted before the Departmental Authorities. In this very judgment it was also observed that where no right of appeal of representation or review is provided under section 22 of the Civil Servants Act, 1973, the aggrieved person can make a representation to the forum next above the authority which made the order.
It is to be noted that appellant Gulbat Khan being an employee of WAPDA was removed from service in pursuance of show-cause notice issued to him calling upon to explain as to why the penalty imposed upon him be not enhanced to commensurate with the nature of the charges proved against him. He challenged removal order before Federal Service Tribunal after observing formalities of filing departmental appeal and waiting for its decision for 90 days. The Federal Service Tribunal dismissed the appeal being barred by time without going into the merits of the case by expressing opinion that as no appeal before the departmental authority was provided against the order made under rule 12; meaning thereby the time consumed in pursuing that remedy could not be excluded in computing the period of limitation for filing the appeal under section 4 of the Service Tribunals Act. This Court, however, held that "if any appeal, application for review or representation to a departmental authority is provided from the order passed against the civil servant, availing of such remedy by him is the condition precedent for filing an appeal before the Tribunal. Such appeal has to be filed, as laid down under section 4, after expiry of 90 days from the date on which the appeal, application for review or representation, as the case may be, was instituted before the departmental authorities". It would be noteworthy that under section 17 (1-B) of the Pakistan Water and Power Development Authority Act (XXXI of 1958) the service under the Authority has been declared to be Service of Pakistan and every person holding the post under the authority not being a person on deputation shall be deemed to be civil servant for the purpose of Service Tribunals Act, 1973. Admittedly the WAPDA Authority has got its statutory rules like Efficiency and Discipline Rules etc. To deal with the affairs of its employees and under said. Rules statutory forums have been provided to redress grievance of the employees departmentally but PIAC have got no statutory rules or statutory forum to redress grievance of its employees against departmental actions, therefore, they are not supposed strictly to follow the provisions of section 4 of Service Tribunals Act, 1973 particularly in respect of filing departmental statutory appeals and its decision/disposal within 90 days. In the second judgment relied upon by the learned counsel for the respondent in the case of Engineer Narain Dass and another v Federation of Pakistan and others (2002 SCM R 82) a Full Bench of this Court disposed of the question of filing of 'departmental appeals before the next higher authouities by placing reliance on Gulbat Khan's case (ibid). In our opinion the case of Gulbat Khan is distinguishable on facts qua the employees of PVC for the reasons noted above. At this juncture it is pertinent to point out that the employees of the Authority, body or organization established under a Federal Law or is owned or controlled by the Federal Government or in which the Federal Government has controlling share or interest have been treated/declared to be in the service of Pakistan only for the limited purposes under section 2-A of the Service Tribunals Act, 1973 namely that every such person shall be deemed to be civil servant for the purpose of the Act, otherwise for all practical purposes employees of such organizations cannot be treated in the service of Pakistan nor they enjoy rights/obligations available to a civil servant under Civil Servants Act, 1973. Admittedly when a civil servant having protection of statutory rules and regulations intends to approach the Service Tribunal he is required to prefer departmental appeal under section 4 but when an employee like members of PIAC who have no statutory rules for controlling the affairs of their services they would not be obliged to approach the departmental authority for the redressal of their grievance, therefore, such employees legally cannot be compelled to do so and they can directly approach the Service Tribunal for the redressal of their grievance because they have been treated civil servants for limited purpose i.e, to seek redressal of their grievance relating to terms and conditions of their services from the Service Tribunal.
It is also to be borne in mind that the Court/Tribunal seized with the matter is competent to interpret the law liberally with the object to extend its benefits largely to the aggrieved persons provided such interpretation has not violated the spirit of the law. Moreover it seems that section 2-A of Service Tribunals Act, 1973 after its promulgation has extended right to all the employees of the category falling within its ambit to have forum of Federal Service Tribunal for redressal of their grievances expeditiously instead of approaching the Civil Courts. Thus while reiterating the conclusions drawn hereinabove, it is held that the employees of PIAC or employees of such other organizations which have no statutory rules governing the affairs of their services of their employees, can without filing departmental appeals, review or representation to the next higher authorities can directly approach the Federal Service Tribunal. As a result of above discussion we are of the opinion that judgments in the Gulbat Khan and Engineer Narain Das and others (ibid) are distinguishable on facts as well as on law.
11. In addition to above conclusion with reference to the facts of instant case without fear of doubt we can say that in the instant case the Departmental Authorities of PIAC had knowledge that employees Abdul Hafeez Abbasi and others have expressed their grievance against the order of H - termination of their services because they contested the suit filed by them, therefore, alternatively plaints filed by them in the High Court can be treated as a departmental appeal without prejudice to the rule laid down hereinabove in view of unreported judgment of this Court in the Muhammad Mushtaq Akbar Abbasi v. House Building Finance Corporation and others (C.A.947 of 1999) wherein memo. of writ petition filed by the petitioner was treated to be a departmental appeal because the Managing Director had opposed the writ petition. It was further observed that such plea could only be raised by a person who has filed a suit or writ petition but in absence of such version on behalf of employee his appeal before Service Tribunal can be treated to be competent even without availing departmental remedy of filing appeal, representation or review because the organization against whose order the employee is aggrieved had got no statutory rules for filing appeal or statutory forum for its disposal.
12. Learned counsel for PIAC next contended that the employees Abdul Hafeez Abbasi and others have not been re-instated in service on the correct principle of law because relationship between them and PIAC is governed by the principle of Master and Servant and if such employees have been removed from service they are estopped to seek relief of reinstatement except praying for compensationin terms of money on account of damages sustained by them due to their removal from service. He further stated that Service Tribunal granted the relief of reinstatement to employees Abdul Hafeez Abbasi and others for violation of principles of natural justice as enshrined in the maxim audi alteram partem which has been recognized by this Court in the case of Mrs. Anisa Rehman v. PIAC and others (1994 SCM R 2232). According to him the principle laid down in Mrs. Anisa Rehman case has been clarified by the Hon'ble author Judge (as he then was) himself in another judgment reported in 1998 SCMR.
60. Therefore, according to him merely for violation of principle of natural justice the employees Abdul Hafeez Abbasi and others could have not been re-instated because when there is a simpliciter termination of service it carries no stigma with it, as such the employee cannot claim right of hearing or a right of issuing show-cause notice to him before taking action. He further stated that the competent authority always enjoy powers to dispense with the service of an employee without issuing show-cause notice to him. Reliance in this behalf was placed by him on the judgment announced by this Court in Civil Appeals Nos.366 of 2001 to 378 of 2001 etc.
13. Learned counsel appearing for employees Abdul Hafeez Abbasi and others contended that now position of law has been settled namely No adverse order can be passed against an employee even if relationship between him and his employer are governed by the principle of master and servant as it has been held by this Court in the case of Pakistan International Airlines Corporation v. Nasir Jamal Malik and others (2001 SCM R 934). He further contended that in the judgment being relied upon by the learned counsel in (Civil Appeals Nos.366 of 2001 to 378 of 2001 etc.) a Full Bench of this Court has observed that only in the cases of exigencies of service non-issuing of show-cause notice would not be fatal.
14. In view of the controversy under consideration we would like to observe that notwithstanding the fact that the principle of natural justice has been applied for limited purpose in Mrs. Anisa Rehman's case (ibid) as it was clarified subsequently in Habib Bank Limited judgment (ibid) but we are of the firm view that the principle enshrined in maxim audi alteram partem has to applied in all judicial and non-judicial proceedings notwithstanding the fact that right of hearing has not been expressly provided by the statute governing the proceedings. In this behalf in the case of Nasir Jamal Malik after having surveyed number of judgments on the subject it was concluded as follows: "We have considered the arguments, so advanced by both the sides in this behalf. It may be noted that in the judicial history of our country as well as in those countries where identical/corresponding system of administration of justice is invogue the principle enshrined in the maxim audi alteram parterm has been made applicable expressly or impliedly in every instrument governing the proceedings whichmay be statutory or otherwise and if its absence is conspicuous by not making it a part of the instrument governing the proceedings. Though the principle of audi alteram partem is not universally accepted principle but emphasis on its application has always been made on those proceedings where adverse action is being contemplated to be taken against the person/persons who have at least a right to defend such action or during course of time they have acquired a right to negate allegations on basis of which an action adversely affecting their interest is being taken. To strengthen the arguments reference may be made to Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (PLD 1959 SC (Pak.) 45, (ii) Messrs Faridsons Limited, Karachi and another v. Government of Pakistan and another (PLD 1961 SC 537), (iii) Abdur Rehman v.
Collector and Deputy Commissioner, Bhawalnagar and others (PLD 1964 SC461), (iv) Abul A'la Maudoodi v.
Government of West Pakistan (PLD 1964 SC 673), (v) University of Dacca v. Zakir Ahmed (PLD 1965 SC 90), (vi)
Muhammad Yahat v. Province of West Pakistan (PLD 1964 SC 321), (vii) Messrs Eastend Exports, Karachi v. The Chief Controller of Imports and Exports, Rawalpindi and another (PLD 1965 SC 605), (viii) Pakistan and others v. Public At Large and others (PLD 1987 SC 304), (ix) Khaliluz Zaman v. Supreme Appellate Court, Lahore and 4 others (PLD 1994 SC 885}, (x) Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, NA. 158, Naushero Feroze and others (1994 SCM R 1299) and (xi) Faqir Ullah v. Khalil-uz-Zaman and others (1999 SCM R 2203).
It may be noted that in the case of University of Dacca (ibid) question of consideration before this Court was as to whether the principle of Natural justice (audi alteram partem) in the cases of expulsion of student, by University Authorities, for alleged indiscipline, misconduct and rowdyism is applicable. In this context it was held that in all proceedings by whomsoever held, whether judicial or administrative, the principle of natural justice have to be observed if the proceedings might result in consequences affecting the person or property or other right of the parties concerned". This rule applies even though there may be no positive words in the statute of legal document whereby their powers is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness.
As far as services of respondents are concerned though the principle of master and servant is applicable but in the case of Mrs. Anisa Rehman v. PIAC and others (1994 SCM R 2232) it was held that the action of the Corporation violating the principles of natural justicr will be without lawful authority and of no legal effect. It was further held that violation of the maxim could be equated with the violation of the principle of law warranting pressing into service Constitutional jurisdiction. Thus, we are inclined to hold that in the instant cases appellants terminated the services of the respondents in violaton of the principles of natural justice because before passing impugned order no opportunity was given to them to defend themselves against an unilateral adverse action intended to be taken against them.?
It may be observed that as per details of the service of each of the Corporation Act, 1956 the Central Government (Federal Government) may as and when it considers necessary, issue directives to the Corporation on matters of policy and such directives shall be binding on the Corporation if a question arises whether any matter is a matter of policy or not, the decision of the Central Government shall be final. There is no need to undertake discussion on the question that the office of Prime Minister alone does not constitute the Federal Government, therefor, the directives of the Prime Minister for terminating the services of the employees Abdul Hafeez Abbasi and others were not strictly covered under section 5(2) of PIAC Act, 1956.
But even if for the sake of arguments it is presumed that such directions were issued by the Federal Government, even then fact remains whether employer /PIAC inquired from the employees whose services were being terminated to explain their position because according to Corporation their appointments were made against merit in violation of the PIAC Rules and Regulations without providing an opportunity to them to explain their position. In this behalf presumption would be that they were made victims of the Prime Minister's directives alone. Therefore, examining from any angle no conclusion can be formed except that according to the circumstances of the case it was incumbent upon the PIAC Authorities to have issued show-cause notices to the appellant employees before terminating their services. Not conceding but for sake of arguments if it is presumed that the appointments of the employees i.e, Abdul Hafeez Abbasi and others were made in violation of the Rules and Regulation and not on merits but still they had acquired a right after serving the Corporation from 1995 to onwards during course whereof they were confirmed which would means that they had attained status of permanent employees enjoying to remain in service until it is proved against them that their appointment was contrary to Regulations of PIAC.
15. We have noted in number of cases that Departmental Authorities do show haste at the time of making such appointments when directives are issued to them by the persons who are in the helm of affairs without daring to point out to them that the directions are not implementable. Being contrary to law as well prevalent Rules and Regulations. In fact such obedience is demonstrated by the concerned officers of the departments to please the authorities governing the country just to earn their time being pleasures but on the change of regime they do show speed in undoing illegal actions which they themselves have accomplished in the previous regime and due to their such illegal acts the employees who were appointed suffer badly without any fault on their part and then even nobody bothers for their future career. Therefore, we are of the opinion that in such situation besides proceedings against the beneficiaries of so-called illegal appointments the officers who were responsible for implementing illegal directives should also be held equally responsible and severe action should be taken against them so in future it may serve as a deterrent for other like-minded persons. This Court in an identical case declined to grant leave to appeal in the case of Secretary to Government of N.-W.F.P. (1996 SCM R 413) and observed that it is disturbing to note that in this case petitioner No,2 had himself been guilty of making irregular appointment on what has been described "purely temporary basis". The petitioners have now turned around and terminated his service due to irregularity and violation of rule 10(2) (ibid). The premise, to say the least, is utterly untenanble. The case of the petitioners was not that the respondent lacked requisite qualification. The petitioners themselves appointed him on temporary basis in violation of the rules for reasons best known to them. Now they cannot be allowed to take benefit of their lapses in order to terminate the services of the respondent merely because they have themselves committed irregularity in violating the procedure governing the appointments".
Similarly this Court in another unreported judgment passed in Civil Petition for Leave to Appeal No, 1062 of 1998 observed, that "The petitioner/PIAC is estopped by conduct to urge that the appointment of the respondent against the rules and due to extraneous consideration, and by manoeuvring the said appointment he blocked the career advancement of more experienced employees already working in PIAC.
If they had any grievance in this behalf they would have challenged the appointment of the respondent soon after his appointment, but admittedly no one did so, nor did the PIAC have any complaint against the work and conduct of the respondent. According to the petitioner, this exercise had been taken on the directive dated 4-3-1997, of the Federal Government, requiring review of all cases of irregular and out of turn appointments in the PIAC. The respondent's appointment was made by the special Selection Board and he possessed the requisite educational qualifications. The PIAC had no cause of grievance against him and his services were terminated on the basis of the circular issued by the Prime Minister Secretariat dated 4-3-1997 directing that all irregular appointments during the PPP Government be terminated.
16. Learned counsel for PIAC also contended that service of employees Abdul Hafeez Abbasi and others is governed by the principle of master and servant, therefore, the Tribunal had no jurisdiction to issue orders for their re-instatement and in such situation at the best they would have claimed damages.
17. Learned counsel for employees Abdul Hafeez Abbasi and others, however, contended that as the employees were treated to be civil servants for the purpose of Service Tribunals Act, 1973, therefore, they were entitled for the relief whatever the Federal Service Tribunal can grant them under section 5 of the Act.
18. This very argument has been elaborately dealt with by this Court in the case of Sui Southern Gas Company v. Narain Das (PLD 2001 SC 555). Relevant para. Therefrom is reproduced hereinbelow: "18. Mr. Waseem Sajjad was right in contending that the application of master and servant rule is a common law concept which falls in the realm of contract. Clearly, in view of insertion of section 2-A in the Act, if the services of any person covered by the said enactment were wrongly illegally terminated, his grievance could be appropriately remedied by the appropriate Service Tribunal under section 5 of the Act, which reads thus: "5. Power of Tribunals.---(1) A Tribunal may, on appeal, confirm, set aside, vary or modify the order appealed against.
(2) A Tribunal shall, for the purpose of deciding any appeal, be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908. (Act V of 1908), including the powers of--
(a) enforcing the attendance of any person and examining him on oath;
(b) compelling the production of documents;
(c) issuing commission for the examination of witnesses and documents."
It is, therefore, wrong to contend that on the theory of master and servant relationship the Tribunal is not authorized to reinstate an employee whose services have been illegally terminated. At this juncture, Mr. Fakhruddin G. Ebrahim argued that even if the respondents/employees are permitted to avail the benefit of the Rules they are not entitled to reinstatement in view of rule 21.1 of the Rules, which contemplates termination of services on three months notice in case of permanent employees and, on one month's notice as contemplated under rule 6.1 read with 6.2 and 6.3 in case of temporary employees. Even this plea does not advance the case of the petitioner/Company any further. Messrs Wasim Sajjad and Muhammad Akram Shaikh are quite right in contending that after having elected to apply the constraints of contract/temporary assignment against the respondents/employees, the petitioner-company could not make a U-Turn by placing reliance on Rule 21.1 of the Rules."
In view of above observations of this Court we are of the opinion that the argument so raised by learned counsel for PIAC has no force, as such the same is repelled accordingly.
19. Learned counsel for PIAC also contended that appeal by the employees Abdul Hafeez Abbasi and others was time-barred because sections 2-A was inserted in the Services Tribunals Act with effect from 10th June, 1999, therefore, the employees should have approached the Service Tribunal within 90 days because the suit filed by them has abated in terms of section 6 of Service Tribunals Act, 1973. In this behalf he placed reliance on PLD 1981 SC 249.
20. On the other hand learned counsel stated that maintainability of appeals filed.By employees was not objected to before the Federal Service Tribunal on limitation, therefore, this objection at this stage now is not available to PIAC. It was also his contention that the appeals were filed by the employees before the Service Tribunal within 30 days of passing of order of abatement by learned High Court.
21. Normally the objection not raised before the forum whose order has been assailed before this Court is not entertained unless it has been shown that the adjudication of such question is necessary as it involves question of public importance or decision of such point goes to the root of the case. As far as question of limitation is concerned it is normally considered a mixed question of facts and law and is required to be decided at the first instance by the Court seized with the matter keeping in view the material available on record because the appreciation of facts is not undertaken by this Court in exercise of its Constitutional jurisdiction. Since in the instant case question of limitation was not taken up before the Federal Service Tribunal, therefore, we are not inclined to entertain this argument.
22. Learned counsel for employees Abdul Hafeez and others stated that the Service Tribunal though has reinstated them but without allowing back benefits i.e, the salary of the period during which they remained out of job on account of illegal order passed by PIAC, as such they were entitled for back benefits as well.
It may be seen that it is a settled proposition of law that an employee can get back benefits on the eve of his reinstatement by a judicial forum or departmental authority if he succeeds in establishing that he had not been making earnings during the period when he remained out of the job. In this behalf reference may be made to the case of Pakistan through General Manager, P.W.R., Lahore v. Mrs. A.V. Issacs (PLD 1970 SC 415). In this case it has been observed that "if the dismissal of a Government servant be 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 there is no reason why he should not also be given by 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 profits 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 double advantage." This principle was again reiterated in the case of Qedeer Ahmad v. Punjab Labour Appellate Tribunal, Lahore and on other (PLD 1990 SC 787).
23. In our considered view benefit of above principle can be extended to an employee if it has been demonstrated by him before the original forum i.e, Federal Service Tribunal that during the pendency of appeal he had not made any earnings by engaging himself into a profit oriented activity either by accepting an employment or doing some business and such prayer necessarily had to be made in the pleadings. Admittedly in the instant case employees did not mention in the memo. Of appeal put up before the Federal Service Tribunal about their engagement in commercial activities during the period when they were out of the job. Therefore, Federal Service Tribunal had no jurisdiction to grant them back benefits.
Learned counsel stated that in instant appeals, however, they have asserted so and as the appeal is continuation of original proceedings, therefore, such statement of facts made by them be accepted for granting them back benefits. We are afraid that in instant Civil Appeals the statement so made by the employees about non-making of earnings during the period they remained out of job being statement of fact cannot be accepted. But we may observe that in this behalf even now they can make a representation to the competent Authority for the redressal of their grievance and if such request is made by them it would be disposed of keeping in view the principle discussed hereinabove expeditiously as far as possible within a period of three months after receipt of this order.
24. Learned counsel for employees Abdul Hafeez Abbasi and others stated that the employer/PIAC despite impugned judgment passed by Federal Service Tribunal in their favour had not taken them on duty and they have been deprived from salary of this period as well. Therefore, he stated that direction be made to PIAC to re-instate them from the date of passing of judgment by the Federal Service Tribunal because no stay was obtained by them.
25. We are inclined to accede to the request so made by the learned counsel because after passing of judgment dated 29-5-2001 by Federal Service Tribunal PIAC had an obligation to honour it and re-instate the employees. Abdul Hafeez Abbasi and others or if PIAC had any reservation in not implementing the judgment then a stay order should have been obtained by them from this court. Admittedly no stay order was obtained by PIAC, therefore, the judgment of Federal Service Tribunal remained operative, As such we direct that the employees be reinstated with effect from the date of passing of the impugned judgment by FST with all back benefits.
26. As we have decided cases on merits, therefore, appeals filed by PIAC are treated within time.
Thus, for the foregoing reasons Appeals Nos.2126 to 2134 of 2001/12/02 falling in Category B filed by PIAC are dismissed. Whereas Appeals Nos. 2117 to 2125 of 2001 of Category A are disposed of with the observations made hereinabove. No order as to costs.
…and 37 more citing cases