' IFTIKHAR MUHAMMAD CHAUDHRY, J.-This petition for leave to appeal has been filed against the judgment dated 23rd March, 2002 passed by Punjab Service Tribunal, Lahore whereby Appeal No,2615 of 2000 tiled by the petitioner challenging the order, dated 24th May, 2000 whereby Secretary, Local Government and Rural Development Department, while reinstating the petitioner into service imposed a penalty of stoppage of annual increments for a period of two years, has been dismissed.
2. Precisely stating the facts of the case are that petitioner was proceeded against departmentally on stated allegation of financial irregularities committed by him as Assistant Director Local Government, while executing the development works in the District. The departmental inquiry conducted against him resulted in his compulsory retirement from service under rule 4(1)(b)(i) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, vide order dated 18th May, 1998 passed by the competent authority/Secretary Local Government. Order of compulsory retirement was challenged by the petitioner by filing departmental representation which was partially allowed. Relevant para. From the order dated 24th May, 2000 passed by the Secretary, Local Government and Rural Development Department is reproduced hereinbelow.-- "4. Now, therefore, I Muhammad Humayun Farshori, Secretary, LG & RD/Authority considering the facts available on record by taking lenient view on account of his long service order that the major penalty of compulsory retirement from service imposed upon him vide this departments order of even Number dated 18th May, 1998 is substituted with the following:--
(i) he is reinstated in service with immediate effect and the intervening period i.e, compulsory retirement from service to the date of reinstatement is treated as extraordinary leave with pay and allowance;
(ii) stoppage of annual increment for a period of 2 years as defined under rule 4(1)(a)(ii) of the Punjab Civil Servants (E&D) Rules, 1975.
3. Petitioner feeling dissatisfied from the above departmental order preferred service appeal before the Punjab Service Tribunal, Lahore which has been dismissed by means of impugned judgment.
As such instant petition for leave to appeal has been filed.
4. Learned counsel appearing for petitioner clarified that in the order dated 24th May, 2000 petitioner was reinstated- without pay and allowances and intervening period during compulsory retirement from service up to the date of reinstatement was treated as extraordinary leave but on account of clerical mistake in the copy of the order, which has been placed for our perusal and relevant para. Therefrom has been reproduced hereinabove, the word 'without' has not been mentioned. However, he further stated that as during pendency of the proceedings before the Service Tribunal, petitioner has been retired on account of superannuation, as such presently he is pressing only for relief to the extent of back-benefits for the period during which he remained compulsory retired up to the date of reinstatement. In support of his contention he stated that petitioner had 398 days leave to his credit as per the leave account, therefore, the department may have not treated the period from compulsory retirement to the date of reinstatement as extraordinary leave. In this behalf, he relied upon the judgment of this Court reported in the case of Muhammad Hafeez laved v. Secretary Agriculture, Government of Punjab and another (PLD 1992 SC 31).
5. We have heard learned counsel for petitioner and, have also gone through the record available before us as well as judgment cited by the learned counsel in support of his contentions. A perusal of the said judgment reveals that in the said judgment Justice Rustam S. Sidhwa (as A-he then was) observed that under the proviso of section 16 of the Punjab Civil. Servants Act, 1974, it is necessary for this Court to determine whether the appellant should be entitled to arrears of pay and if so, to what extent. It is unlikely that the appellant remained idle throughout the period of his dismissal. It was suggested that the period of his dismissal may be treated as leave without pay, after adjusting the leave due to him. In this behalf, it may be seen that specific question was not raised by the petitioner before the Service Tribunal because the relevant para. From the impugned judgment reveals to claim back-benefits. Contention was raised to the extent that the petitioner should have pay his pay and allowances if the penalty of compulsory retirement was directed to minor penalty. Therefore, for the first time, this question cannot be allowed to be argued. Even otherwise, the facts of the reported case are distinguishable from the facts of the case in hand, as in that case it was accepted by this Court that the appellant remained idle throughout the period of his dismissal. But in instant case, neither it is argued nor it is proved before the Service Tribunal that petitioner remained idle during this period. In addition to it, as per section 16, second proviso of the. Punjab Civil Servants Act, 1974, on setting aside. The order of the dismissal/removal from service or reduction in rank, it is the discretion of the authority to hold whether an employee is entitled to such arrears of the pay or not. In the instant case, it may be noted that the petitioner has not been reinstated in service unconditionally because competent authority while reinstating him in service on taking' a lenient view, imposed a penalty of stoppage of annual increments for a period, of 2 years and Service Tribunal has kept intact the same penalty. Further- more, learned counsel has not challenged the order of Service Tribunal to that extent as he is seeking leave to appeal only to the extent of back- benefits. In this context, reference can be made to the judgment reported 7 as Qadeer Ahmad v. Punjab Labour Appellate Tribunal, Lahore and another (PLD 1990 SC 787), wherein it has been held that the authority setting aside the dismissal order is authorized to pass such orders as regards back benefits as it considers fit. Reference in this behalf may also be made to the case of The Province of Punjab and others v. Muhammad Anwar (2001 PSC 690).
Relevant para. Therefrom has been reproduced hereinbelow:--- ' It is by the time well-settled that an employee of the Government functionaries claiming back- benefits is required to substantiate through evidence that he had not undertaken any other job during the period when he 'remained' out of service. Reference in this behalf can be made to the case of Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others (1991 SCM R 2087) and to the case of General Manager, National Radio Telecommunication Corporation, Haripur v. Muhammad Aslam and 2 others (1992 SCM R 2169).
' Similarly in another case reported as Abdul Hafeez Abbasi v. Managing Director, Pakistan International Airlines Corporation and others (2002 SCM R 1034) this -principle was again reiterated.
Relevant para. Therefrom is reproduced hereinbelow:--- ' "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 earning during the period when he remained out of the job."
Because in instant case, penalty of stoppage of annual increments for two years has been kept intact and for this reason the competent authority has decided not to grant back-benefits. Besides it there is no evidence on record that the petitioner remained idle during the period of his compulsory retirement and reinstatement into the service, therefore, the order passed by Secretary, Local Government and Rural Development Department, Lahore dated 24th May, 2000 seems to be in consonance with the law laid down by this Court from time to time.
' Thus, for the foregoing reasons, petition is dismissed and leave declined.