ORDER SHEET

THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

C.P.No.D-1689 OF 2010.

DATE ORDER WITH SIGNATURE OF JUDGE

PRESENT.

Mr. Justice Aqeel Ahmed Abbasi.

Mr. Justice Habib-ur-Rahman Shaikh.

FOR KATCHA PESHI

Date of Hearing: 17.4.2013.

Date of order: 02.5.2013.

Mr. Faheem Hussain Panhwar, Advocate for the Petitioner.

Mr. Muhammad Arshad S. Pathan, Advocate for Respondents.

O R D E R

AQEEL AHMED ABBASI, J.- Through instant petition the petitioner has sought relief from this Court with the following prayer:

(a) To issue strict directions to the Respondents to make the payment of legitimate salary to the Petitioner from the date he was awarded major punishment of compulsory retirement after fixing his salary on revision of National Pay Scales in 2001, and also after allowing him annual increments admissible to him in every year on 01^st December.

(b) To direct the Respondents to treat the period of compulsory retirement i.e. 22.01.2002 to 26.5.2006, as a duty period and make payment of legitimate salary to the Petitioner, without further delay.

2. Brief facts as recorded in the instant petition are that the Petitioner was serving as Office Superintendent in Mehran University of Engineering & Technology Jamshoro and was proceeded against by the University for charges of having committed forgery and given fake Admissions to two students namely Mohammad Arshad Rafique Memon and Siraj Ahmed Shaikh. Petitioner was served with the charge sheet, inquiry was conducted and he was recommended for inflicting major penalty of compulsory retirement from service. On receipt of such inquiry report, show cause notice was issued to the Petitioner, who replied the same, however, the explanation offered by the Petitioner was found unsatisfactory whereafter the major punishment of compulsory retirement was awarded to the Petitioner. Petitioner preferred departmental appeal against such order before the Chairman Syndicate M.U.E.T. Jamshoro which was dismissed whereafter petitioner filed an appeal under section 4 of the Sindh Services Tribunals Act, 1973, before the Service Tribunal Karachi vide Judgment dated 23.5.2006 allowed the appeal, set-aside the order of dismissal and remanded back the case to the University Authorities for fresh departmental proceedings under the provisions of Removal from Service (Special Powers) Sindh Ordinance IX of 2002. Pursuant to such decision the Petitioner was reinstated in the service, however, the Respondent did not release the salary of the Petitioner for the period of his compulsory retirement and reinstatement into the service hence the Petitioner filed a Constitutional Petition No.D-548 of 2008 before a Division Bench of this Court which was dismissed as not pressed vide order dated 18.3.2010. Petitioner filed a Review against such order which was also dismissed vide order dated 21.9.2010. After fresh inquiry by the Respondent the Petitioner was held responsible for the charges as referred to hereinabove and was reverted from BPS-17 to BPS-16 whereafter he retired after having attained the age of superannuation. Petitioner accepted the aforesaid decision however, felt aggrieved when his legitimate dues and retiring benefits were not paid by the Respondents particularly his salary for the period of compulsory retirement i.e. 22.1.2002 to 26.5.2006 which were treated by the Respondents as leave without pay.

3. Learned counsel for the petitioner has argued that treating the period of compulsory retirement from 21.1.2002 to 26.5.2006 as leave without pay by the Respondents in respect of the petitioner amounts to double jeopardy particularly when the Petitioner was already awarded major punishment by reverting him from BPS-17 TO BPS-16. It has been contended that once the impugned order passed by the Respondent in the earlier round of proceedings was set-aside by the learned Services Tribunal and the matter was remanded back to the Respondent with the direction to conduct fresh inquiry against the Petitioner in accordance with law, therefore, period during which the Petitioner remained as compulsorily retired from services, would not have been treated as leave without pay as non-performance of duty by the petitioner during such period cannot be attributed to the conduct of the Petitioner as he was prevented by sufficient cause from performing his duties. It has been prayed that the salary of the Petitioner during the period of his compulsory retirement and his reinstatement shall be paid to the Petitioner.

4. Conversely, learned counsel for the Respondent has vehemently opposed the maintainability of instant petition on the grounds that similar relief was sought by the Petitioner through C.P.No.D-548 of 2008 which was dismissed as not pressed vide order dated 18.3.2010. Per learned counsel the order dated 15.3.2010 which has been impugned through instant petition was filed by the Respondents in the aforesaid petition whereafter the Petitioner being satisfied did not press the aforesaid petition which was disposed of accordingly. Whereafter, per learned counsel, the Petitioner filed a Review Application which was also dismissed vide order dated 21.9.2010. It has been contended by learned counsel for the Respondent that in order to frustrate the effect of order passed by this Court in the aforesaid Constitutional Petition the Petitioner has once again filed instant petition with similar relief whereas the impugned order dated 15.3.2010 has neither been challenged before any competent forum nor through instant petition it has been prayed that the aforesaid order may be set-aside. It has been contended by learned counsel for the Respondent that even on merits Petitioner has no case as in the earlier round of proceedings the order passed by the Respondents was set-aside on technical grounds, without touching the merits of the case, whereas, the learned Tribunal held that proceedings initiated and penalty imposed under University (E & D) Rules in view of promulgation of Removal from Service (Special Powers) Sindh Ordinance IX of 2002, which has over-riding effect, was void, ab initio as such the matter was remanded to the Respondent with the direction to initiate fresh departmental proceedings under the Provisions of Removal from Service (Special Powers) Sindh Ordinance IX of 2002, after providing opportunity of being heard to the Petitioner. Per learned counsel thereafter fresh inquiry was conducted opportunity of being heard was awarded to the Petitioner whereafter, charges against the Petitioner were found to be correct. However, per learned counsel, the Respondents, by taking lenient view awarded punishment to the petitioner by demoting from BPS-17 to BPS-16. It has been contended that the Petitioner was satisfied by such decision as he did not file any appeal against such order, whereafter he was retired from services on attaining age of superannuation and was paid all retiring benefits in accordance with law. It has been further contended by learned counsel for the Respondent that the impugned order dated 15.3.2010 has been passed in compliance of the order dated 25.2.2010 passed by a Division Bench of this Court in C.P. No.D-548 of 2008 whereby suspension period of Petitioner from 20.6.2001 to 21.1.2002 has been treated as duty period whereas, period of compulsory retirement from 22.1.2002 to 26.5.2006 has been treated as leave without pay, and the period from reinstatement to reversion i.e. 27.5.2006 to 12.3.2007 has been treated as duty period. It has been contended by learned counsel for the Respondent that the Petitioner was not Honourably acquitted from the charges on the contrary, his guilt was established and the charges were proved to be correct. However, instead of awarding major punishment i.e. terminating the services of the Petitioner, a lenient view was taken by the Respondent and the petitioner was reverted to BPS -17 to BPS-16, hence the Petitioner cannot claim any back benefits or ask for the salary during the period of his compulsory retirement from 22.1.2002 to 26.5.2006 particularly when he was neither performing his duties nor it has been stated by the Petitioner that during aforesaid period when he was out of service he was not working anywhere to gain financial benefits. In support of his contentions learned counsel has placed reliance on the following reported cases.

5. We have heard both the learned Counsel and perused the record. The Petitioner was issued a charge sheet dated 14.04.2001 which was replied vide letter dated 03.04.2001 however since the explanation given by the Petitioner was not considered reasonable, inquiry was conducted and reported dated 31.12.2001 was prepared. The petitioner was confronted with such inquiry report through a show cause notice dated 29.12.2001, which was replied vide letter dated 04.01.2002. The Authorized Officer did not consider the explanation offered by the Petitioner as reasonable whereafter vide order dated 22.01.2002 the Petitioner was inflicted major penalty and was ordered to be compulsorily retired from services. Being aggrieved by such order of compulsory retirement, the petitioner preferred departmental appeal on 21.02.2002 before the competent authority, which was dismissed vide order dated 02.05.2002. Thereafter, the Petitioner preferred an appeal bearing No.157/2002 before the Sindh Service Tribunal at Karachi, who vide order dated 23.05.2006 allowed the appeal of the Petitioner however, without touching the merits of the case by holding that proceedings initiated and penalty imposed under University (E & D) Rules being illegal and void ab initio, are not sustainable. Both the orders of compulsory retirement in respect of the Petitioner were set aside and the matter was remanded to the Respondents to initiate fresh departmental proceedings strictly under the provisions of the Removal from Service (Special Powers) Sindh Ordinance IX of 2000 after providing full opportunity to the Petitioner and the Petitioner was directed to be reinstated in service to clothe him with the status of University employee only for the purposes of facing fresh disciplinary proceedings under the law. It was also held that intervening period would follow the outcome of the proceedings under the Ordinance IX of 2000. As per contents of petition, the Petitioner was again proceeded under the Removal from Service (Special Powers) Sindh Ordinance IX of 2000 and was issued show cause notice and opportunity was given to the Petitioner who furnished the reply but the competent authority once again found the Petitioner guilty of the charges of misconduct. However, instead of inflicting major penalty of termination/dismissal from service, the Petitioner was penalized vide order dated 15.03.2010 whereby he was reverted from BPS 17 to BPS 16. It is pertinent to not that before filing instant petition, the Petitioner had filed a Constitution Petition No.D-548/2008 before a Division Bench of this Court with the prayer to direct the Respondents to make the payment of legitimate salary to the Petitioner from the date he was awarded major punishment of compulsory retirement after fixing his salary on revision of National Pay Scales in 2001 and also after allowing him annual increments admissible to him in every year on 1st December.

6. Comments were filed on behalf of the Respondents wherein it was stated that the Petitioner was reinstated vide order dated 12.3.2007 with immediate effect and was not reinstated from the date of compulsory retirement as such, the intervening period from 22.01.2002 to 12.03.2007 was to be decided by the competent authority but the Petitioner filed the petition prematurely. It was further stated in the comments filed by the Respondents that the Petitioner received the salary till his retirement whereas case of the Petitioner with regard to his leave period and fixation of pay after reversion could not be decided as the Petitioner intimated the Respondents that he has filed a petition before Chancellor in this regard. Along with aforesaid comments the Respondents also filed order dated 15.3.2010 which, according to the Respondents, was issued pursuant to interim order dated 25.02.2010 passed by this Court in the aforesaid petition. On receiving such comments and the order dated 15.3.2010 the Petitioner did not press aforesaid petition, which was accordingly disposed of as such vide order dated 18.3.2010 whereafter a review was filed by the Petitioner which was also disposed of vide order dated 21.09.2010 in the following terms:-

“Counsel for the Petitioner states that perhaps the Petitioner may avail remedy of filing of fresh proceeding against the order of the University and states that the application may be disposed of.

The listed applications in the above terms stand disposed of. The Petitioner may avail remedy in accordance with law.”

7. After dismissal of the aforesaid petition in the above terms, the Petitioner was obliged to file instant petition on 29.11.2010 with the similar prayer “a” as was made in the aforesaid petition whereas another prayer clause “b” has also been added wherein it has been prayed by the Petitioner that “Respondents may be directed to treat the period of compulsory retirement i.e. 22.1.2002 to 26.05.2006 as a duty period and make payment of legitimate salary to the Petitioner without further delay.” It is pertinent to note that through instant petition same order dated 15.3.2010 issued by the Mehran University of Engineering and Technology Jamshoro has been challenged, which was placed on record by the Respondents in the earlier petition filed by the Petitioner i.e C.P No.D-548/2008 which was disposed of vide order dated 18.03.2010 in the following terms:-

“Learned Counsel for the Respondent files copy of order dated 15.3.2010 alongwith his comments in terms whereof the Petitioner’s grievance have been removed.

The Counsel for the Petitioner, in view of the foregoing, does not press this petition.

The petition is accordingly disposed.”

Disposal of the above petition in the aforesaid manner reflects that the Petitioner was satisfied with the order dated 15.3.2010 which has been duly impugned through instant petition as no grievance was expressed by the Petitioner. Similarly the review filed by the Petitioner was also disposed of at the instance of the Petitioner, who undertook to avail the remedy by filing fresh proceedings against the order dated 15.03.2010 issued by the University. However, record shows that the Petitioner did not file any proceedings before the competent authority against said order and has chosen to file instant constitution petition. It appears that the grievances of the Petitioner with regard to his retiring benefits pursuant to orders passed by this Court in C.P No.D-548/2008 have been settled by the Respondents vide order dated 15.3.2010 whereas only grievance of the Petitioner relates to his claim of the salary of the period during which he remained compulsorily retired from services pursuant to order dated 22.01.2002 passed by the Respondents.

8. Admittedly, the Petitioner has not filed any representation/appeal before the competent authority against the impugned order dated 15.3.2010 with regard to his aforesaid claim. Moreover, the aforesaid intervening period in terms of the order passed by the learned Sindh Service Tribunal at Karachi was dependent upon the outcome of the proceedings under the Ordinance IX of 2000, whereas the competent authority vide impugned order dated 15.3.2010 appears to have decided such aspect of the matter by holding the intervening period i.e 22.1.2002 to 26.5.2006 as leave without pay. It may be further observed that in the instant matter the Petitioner was never absolved with the charges of misconduct whereas in the earlier round of proceedings the matter was decided without touching the merit of the case and the case was remanded back to the Respondents with the directions to conduct fresh inquiry and proceed against the Petitioner in terms of Removal from Service (Special Powers) Sindh Ordinance IX of 2000 whereafter, having complied with all the codal formalities and by providing complete opportunity of being heard to the Petitioner, the competent authority was pleased to once again hold the Petitioner guilty of charges of misconduct, however, by taking lenient view, the Petitioner was reverted from BPS-17 to PBS-16. In view of hereinabove facts the claim of the Petitioner asking for the back benefits for the period during which he remained compulsorily retired from service, particularly when the Petitioner is not honourably acquitted from the charges, appears to be misconceived in fact and law. Moreover, the Petitioner has not challenged the aforesaid order by filing appropriate proceedings before the competent authority and has also chosen not to press the earlier petition wherein similar relief was sought. No reasonable cause has been shown by the Counsel for the Petitioner to demonstrate that under what circumstances the Petitioner was prevented from filing appropriate proceedings against the impugned order dated 15.03.2010 before the proper forum within stipulated period.

9. In the case of Dr. Muhammad Muzafar Vs. Federation of Pakistan, Ministry of Port and Shipping through Secretary and 3 others, reported as 2012 PLC (C.S) 205 a Division Bench of this Court declined the similar request of the Petitioner, in spite of the fact that he was reinstated into service, on the ground that since reinstatement of the Petitioner was contingent, which was accepted by the Petitioner and was not challenged before the competent forum therefore, his subsequent request for the back benefits was declined.

10. In the case of Pakistan Automobile Corporation Limited through Chairman vs. Mansoor-Ul-Haq and 2 others, reported as 2004 PLC (C.S) 1151 the Honourable Supreme Court declined the back benefits on the ground that where plea of back benefits was not supported by the documentary evidence to the effect that when employee was out of service he did not work anywhere to gain financial benefits, therefore, the claim of back benefits was declined to the employee.

11. In view of hereinabove, we are of the opinion that the Petitioner has failed to make out a case requiring this Court to exercise its extraordinary constitutional jurisdiction under Article 199 of the Constitution, whereas no substantial legal ground has been raised by the Petitioner, nor any illegality in the impugned order has been pointed out, which may require any interference by this Court.

Accordingly, we do not find any merit in the instant petition which is hereby dismissed, however, with no orders as to costs.

JUDGE