Benefit extended to one employee is for all employees

PLJ 2013 Islamabad 60

Present: Riaz Ahmad Khan, J.

MUHAMMAD RAFIQUE--Petitioner

versus

MINISTRY OF EDUCATION through Secretary Education, Government of Pakistan, Islamabad, etc.--Respondents

W.P. No. 1508 of 2010, decided on 18.2.2013.

Constitution of Pakistan, 1973--

----Arts. 4 & 25--Allama Iqbal Open University Act, 1974, S. 19--Constitutional Petition--Advance increments on basis of master degree were withdrawn--Notification--Challenge to--No authority to override decisions of university--Case was decided by FST as well as Supreme Court--Civil servants were entitled to benefit, which cannot be denied to them--Question regarding payment of two advance increments to employees, who obtained degree of M.A.--Whether petitioners were party in earlier litigation or not--Validity--Once decision was made by Supreme Court, determining a question of law or enunciating a principle of law, then same is binding on all other Court in Pakistan--As such when a person gets a benefit from judgment of Supreme Court, then all other similarly placed persons would become entitled to relief, irrespective of the facts as to whether they were party in earlier litigation or not--If one benefit was extended to employees on basis of judgment of FST as well as S.C., then refusal of same benefit to other employees was violative of Arts. 4 & 25 of Constitution--Petitions were accepted.     [P. 53] A, B & C

Mr. L.K. Sehraee, Advocate for Petitioner.

Malik Shaukat Nawaz and Sardar Shahid Hanif, Advocates AIOU for Respondents.

Date of hearing: 11.2.2013.

Judgment

This judgment is directed to dispose of instant writ petition as well as six other writ petitions Bearing Nos. 1509, 1510, 1511, 1512, 1513 and 1514 of 2010.

2. Brief facts of the case are that the petitioners of all the seven writ petitions, are permanent employees of Allama Iqbal Open University, Islamabad. This university had come into existence through Allama Iqbal Open University Act, 1974. Under Article 19 of the said act, the Executive Council is the Executive Body of the University. In the year 1986, the Executive Body of the university granted two advance increments to those employees, who completed Master Degree in Educational Planning & Management (EPA). The said decision was notified vide Notification No. F.21-58/86-Reg dated 14-1-1987. The petitioners obtained degree of M.A. Educational Planning & Management and were accordingly granted two advance increments retrospectively w.e.f. 21-12-1986. Lateron, the matter regarding two advance increments was placed before the Finance Committee and again before the Executive Council. The Executive Council confirmed its earlier decision and afresh notification dated 21-12-1993 was issued. The matter again came up before the External Audit Committee and it was held that the matter of two advance increments was not covered under the Federal Government Employees Rules and therefore, a Committee was constituted to scrutinize the cases of pay fixation of the employees. Accordingly, the two advance increments already granted on the basis of Master Degree in Educational Planning & Management were withdrawn and the pay was re-fixed. The Executive Council again confirmed its earlier decision in the year 1999 and a fresh notification was issued. One of the employees namely Muhammad Iqbal challenged the order of withdrawal of the two advance increments before learned Federal Service Tribunal, Islamabad. The appeal was accepted and it was held that the university had full authority to determine terms and conditions and pay of its employees. The Federal Government had no authority to issue directions to the university regarding management of its affairs. Similarly, Finance Division had no authority to override decisions of the university. This order was challenged before the Hon'ble Supreme Court of Pakistan through C.P. No. 673/2004, but the same was dismissed vide judgment dated 11-10-2004. The amount deducted on account of withdrawal of the two advance increments were reimbursed to the said employee. The petitioners following the above said example, applied for refund of the deducted amount, granted on the basis of two advance increments and for the withdrawal of the order, by virtue of which the payment of two advance increments was stopped, but to no effect. The petitioners then filed departmental appeal, which was also not responded. The petitioners then approached the Federal Ombudsman, but the appeal was returned for lack of jurisdiction. The petitioners thereafter, filed present writ petitions for implementations of judgment passed by learned Federal Service Tribunal on 06-2-2004 as well as judgment dated 11-10-2004 passed by the Hon'ble Supreme Court of Pakistan.

3.  Learned counsel for the petitioners submitted that the petitioners' case had already been decided by learned Federal Service Tribunal as well as the Hon'bleSupreme Court of Pakistan. The petitioners are entitled to the same benefit, which can not be denied to them.

4.  On the other hand, learned counsel for the respondents submitted that the petitioners were not party before the learned Federal Service Tribunal as well as theHon'ble Supreme Court of Pakistan, in the earlier litigation and therefore, are not entitled to the same relief. It was further submitted that the External Audit Committee had raised objection in respect of payment of two advance increments and therefore, the two increments could not be paid to the petitioners. It was further submitted that the Federal Government had the authority to stop payment of two advance increments as the same was not covered by the Federal Government Rules.

5.  I have heard learned counsel for the parties and have also perused the record.

6.  Admittedly, the matter in issue has already been decided by the learned Federal Service Tribunal as well as the Hon'ble Supreme Court of Pakistan. The Hon'bleSupreme Court of Pakistan in judgment dated 11-10-2004 held that:

"It is an established fact that the terms and conditions of service regulated  by the Government are not applicable to Allama Iqbal Open University because such terms and conditions are determined by the executive council thereof. They being the rule making authority have allowed two advance increments to the respondent which they maintain till this date to be valid. Learned counsel for the University stated at the bar that the University being independent in its affairs has rightly allowed two advance increments to the respondent."

As such the question regarding payment of two advance increments to the employees, who obtained degree of M.A. Educational Planning & Management stands settled. It is immaterial as to whether the petitioners were party in the earlier litigation or not. Once a decision is made by the Hon'ble Supreme Court of Pakistan, determining a question of law or enunciating a principle of law, then the same is binding on all other Courts in Pakistan. The judgment of the Hon'ble Supreme Court of Pakistan becomes a guide line and that has to be followed by every one. As such when a person gets a benefit from the judgment of the Hon'ble Supreme Court of Pakistan, then all other similarly placed persons would become entitled to the same relief, irrespective of the fact as to whether they were party in the earlier litigation or not. Even-otherwise, if one benefit has been extended to the employee on the basis of judgment of learned Federal Service Tribunal as well as the Hon'bleSupreme Court of Pakistan, then refusal of the same benefit to other employees similarly placed, is violative of Articles 4 & 25 of the Constitution of Islamic Republic of Pakistan, 1973.

7.  In the circumstances, it is held that the petitioners are entitled to the two advance increments, as already held by learned Federal Service Tribunal as well as theHon'ble Supreme Court of Pakistan. All the seven writ petitions are accordingly accepted.

(R.A.)  Petitions accepted

Reinstatement is inevitable on acquittal of civil servant

PLJ 2015 Tr.C. (Services) 154[Punjab Service Tribunal, Lahore]

Present: Ashtar Abbas, Member-IV

MUHAMMAD ZAFRAN, EX-WARDEN CENTRAL JAIL,RAWALPINDI--Appellant

versus

INSPECTOR GENERAL OF PRISONS PUNJAB, LAHORE and another--Respondents

Appeal No. 2677 of 2012, decided on 11.12.2014.

Switch over procedure--

----Dismissal from service--Prima fice, competent authority committed mistake by switching over from one provision of law to another provision of law.                                     [P. 156] A

No opportunity of Cross-examination--

----When statements of witnesses were being recorded, appellant was present there and he was asked to cross-examine the witnesses--In absence of this, it cannot be said that I.O. carried out full-fledge regular inquiry.    [P. 156] B

Acquittal--

----It is also settled principal of law that once civil servant is acquitted after trial by competent Court of law, department would be wrong in refusing to reinstate him.                       [P. 157] C

Rana Abdul Jabbar, Advocate for Appellant.

Mr. Hussain Ahmad Mughal, D.D.A. & Mr. Ali Waqas, Clerk for Respondent No. 2.

Date of hearing: 11.12.2014.

Judgment

Through this judgment, an appeal filed by Muhammad Zafran, Ex-Warder No. 5220 against orders dated 8.10.2010, 9.2.2011 and 10.5.2012 whereby the appellant was ordered to be dismissed from service is being decided.

2.  Arguments advanced by the learned counsel for the appellant hearad and available record perused.

3.  Annex (A) available in the file is basic order, which was passed by the Superintendent of Central Jail, Rawalpindi on 19.6.2007 on the basis of which the Superintendent of Central Jail, Rawalpindi by invoking the provisions of Punjab Removal from service (Special Powers) Ordinance, 2000, the appellant was dismissed from service on an allegation that he was involved in case FIR No. 411 dated 07.09.2006 under Section 9-C, P.S Sadar Baruni, Rawalpindi for smuggling of narcotic (Charas 1000 grams) between the night 07/08 of September 2006 from Tower No. 5 and the same was recovered by SG Warder Mola Bukhsh and SG Warder UlfatAli. Previously this basic order was assailed by filing an appeal Bearing No. 1968/2008 before this Tribunal and vide order dated 31.12.2008 the then Hon'bleMember-V allowed the appeal in the following fashion:--

“Under the circumstances, the impugned orders passed by the authorities do not sustain. The instant appeal is accepted and the impugned orders are set aside. Consequently, the appellant is reinstated in service. The case is remanded to the competent authority with the direction to decide the same afresh after holding a regular inquiry into the matter and provide the appellant an opportunity of producing defence in accordance with law. The status of intervening period shall be decided by the competent authority at the time of finalization of the inquiry. “

4.  During post remand proceedings, DIG, Prisons Rawalpindi Region, Rawalpindi switched over the proceedings from Punjab Removal from Service (Special Powers) Ordinance, 2000 to the provisions of PEEDA Act, 2006 and vide order dated 08.10.2010 awarded major penalty to the appellant and dismissed him from service with immediate effect. Against this order i.e. dated 08.10.2010, departmental appeal was filed, which was ultimately rejected by the Inspector General of Prisons, Punjab, Lahore on 09.02.2011. Both the above said orders were challenged by filing revision petition, which were not entertained as the appeal of the appellant has already been dismissed by AIG (Security and Discipline) for the office of Inspector General of Prisons, Punjab, Lahore vide missive No. 3160 dated 10.05.2012.

5.  It is admitted fact that initial basic proceedings were taken up by the Superintendent of Central Jail, Rawalpindi under Section 3 of the Punjab Removal from service (Special Powers) Ordinance, 2000, whereby major penalty of dismissal from service was imposed upon the appellant as he was found involved in criminal case FIR No. 411 dated 07.09.2006 under Section 9-C CNSA Police Station Saddar Beruni, Rawalpindi. After post remand proceedings, by the order of this Tribunal dated 31.12.2008 DIG Prisons Rawalpindi Region, Rawalpindi switched over to the provisions of the Section 4 of the PEEDA Act,2006 and by invoking the provisions of PEEDA Act, 2006 appellant was ordered to be dismissed from service with immediate effect. Switching over from one act to another is not appreciate by the Hon'ble Supreme Court of Pakistan in case titled District & Sessions Judges vs Muhammad Nawaz reported in 2003 SCMR 1720. Prima fice, the respondents/competent authority committed mistake by switching over from the one provision of law to another provision of law. It is important to high light that after the remand of the case by the order of this Tribunal, Ch. Azmat Hayat, Superintendent, Sub Jail Chakwal conducted regular inquiry. His report is Annex (L). This report reveals that I.O. recorded the statements of Muhammad Anwar, Assistant Jail, Mola Bakhsh, Warder and Ulfat Hussain, Warder. Report is silent that when statements of witnesses were being recorded, appellant was present there and he was asked to cross-examine the said witnesses. In absence of this, it cannot be said that the I.O. carried out full-fledge regular inquiry. This fact escaped from the notice of the respondents thus they have committed material illegality. It is also important to note that report under Section 173, Cr.P.C. was sent to the competent Court of law for trial of the present appellant/accused in criminal case FIR No. 411 dated 07.09.2006 under Section 9-C CNSA, 1997, P.S Saddar Beruni, Rawalpindi and ultimately vide judgment dated 04.09.2007, learned Additional Sessions Judge, Rawalpindi acquitted the accused Muhammad Zafran from the criminal liability. Nothing is on the record to show that the

police department/prosecution further assailed the judgment of the learned Additional sessions judge mentioned above and the same has been set aside and appellant has been held guilty. In absence of all that, I feel no hesitation to say that the order passed by the learned Additional sessions Judge mentioned above has attained finality. It is also settled principal of law that once civil servant is acquitted after the trial by the competent Court of law, department would be wrong in refusing to reinstate him (2003-TD (Service) 339 is referred). While rejecting the appeal and revision, the appellate as well as revisional authority did not keep in their mind the fact of acquittal of the appellant from the criminal liability hence, they have committed illegality.

6.  In view of what has been discussed above. The appeal is allowed/accepted, impugned orders are set aside and the appellant is reinstated in service with all back benefits.

(R.A.)  Appeal allowed