ORDER SHEET

IN THE HIGH COURT OF SINDH, AT KARACHI

Constitutional Petition No.D-339 of 2007

             Date                            Order with signature of Judge                                       

Present:

                Mr. Justice Gulzar Ahmed &

                Mr. Justice Malik Muhammad Aqil.

Date of hearing 27.5.09.

Mr. Ansari Abdul Latif, Advocate for the petitioners.

Mr. Khalid Imran Siddiqui, Advocate for respondents 1&2.

Mr. Ashiq Raza, D.A.G.

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GULZAR AHMED, J.:- By this petition, petitioners have claimed payment of all back benefits to them on the facts that they were employed by Pakistan Steel Mill Corporation and were proceeded under Removal from Service (Special Powers) Ordinance, 2000 and ultimately were dismissed from the service. The three petitioners filed separate appeals against the order of their dismissal with the Federal Service Tribunal, who vide its consolidated judgment dated 06.6.2006 allowed the appeals of the petitioners, set aside the impugned orders and directed their reinstatement in service with all back benefits with condition that petitioners will submit affidavits before the competent authority to the effect that they were not gainfully employed elsewhere. In compliance of this judgment, the petitioners were reinstated in service vide respondent’s Memorandum dated 26.7.2006 in respect of petitioner No.3 and two separate Memorandums dated 27.6.2006 in respect of petitioner Nos.1 & 2. However, it was noted in such Memorandums that reinstatement in service is without prejudice to the right of appeal before the Hon’ble Supreme Court of Pakistan.

It appears that the respondents filed three separate Civil Petitions against the judgment of Federal Service Tribunal, which petitions came up for hearing on 19.10.2006 and following the judgment in the case of MUHAMMAD MUBEEN-US-SALAM V/S FEDERATION OF PAKISTAN (PLD 2006 SC 602) the three petitions were abated and disposed off accordingly.

Learned counsel for the petitioners has contended that despite the abatement of the petitions by the Hon’ble Supreme Court of Pakistan, the respondents have continued to employ the petitioners on the dint of judgment of learned Federal Service Tribunal but have not paid their all back benefits despite petitioners having furnished the requisite affidavits as directed by learned Federal Service Tribunal.

On the other hand, learned counsel for the respondents has contended that though the petitioners have been continued in employment by the respondents but they are not entitled to the payment of all back benefits in view of the fact that the judgment of the Federal Service Tribunal has merged into the order of Hon’ble Supreme Court of Pakistan which has nullified the effect of the judgment of learned Federal Service Tribunal and in this respect he has relied upon the case of Muhammad Idrees V/S Agricultural Development Bank of Pakistan (2007 PLD SC 681).

No counter affidavit or para-wise comments have been filed by the respondents disputing the facts alleged in the petition. In the petition it is specifically averred that petitioners have filed requisite affidavits as required by the judgment of learned Federal Service Tribunal for being entitled to the payment of all back benefits. It is obvious from the memorandums that petitioners were reinstated in terms of the judgment of learned Federal Service Tribunal subject to the decision of Hon’ble Supreme Court of Pakistan. Though the decision was given by the Hon’ble Supreme Court of Pakistan on 19.10.2006, by which the three petitions filed by the respondent were abated but the petitioners continued to remain employed with the respondents inasmuch as no order was passed by the respondent against them for availing the remedy by virtue of abatement of petitions of the respondents by Hon’ble Supreme Court of Pakistan. Such position continued until the filing of this petition on 26.2.2007 and it also continued until the matter came up before us for hearing. Nothing was stated by learned counsel for respondents that respondent does not wish to retain the petitioners in employment.

This being the state of factual position, the petitioners having been reinstated in service by dint of judgment of Federal Service Tribunal which also directs payment of all back benefits to the petitioners, we find no reason as to why the petitioners should remain deprived of such benefits, more so when respondents through their conduct have acquiesced in accepting the judgment of learned Federal Service Tribunal which in such eventuality has to be given its full effect. As the facts and circumstances of the present case are different, in our respectful view, the ratio of Muhammad Idrees’s case cited by learned counsel for the respondents will not be applicable.

After hearing the learned counsel for the parties, by a short order dated 27.5.2009, we have allowed this petition. Above are the reasons for the said short order.

               J U D G E

J U D G E