AKIF QAMAR and another vs GENERAL MANAGER (ADMINISTRATION) PASSCO
The petitioners sought leave to appeal against an order of the Federal Service Tribunal that reinstated them in service without back benefits, arguing that the award of back benefits follows automatically once a departmental order is declared without lawful authority. The core legal question was whether back benefits are granted automatically upon reinstatement or require specific pleading and proof of non-employment during the period out of job. The Supreme Court held that back benefits do not follow automatically upon the setting aside of a departmental order, and an employee must specifically plead and demonstrate that they were not gainfully employed or making any earnings during the period they remained out of service. The Court affirmed that in the absence of such pleadings before the original forum, back benefits cannot be presumed or awarded, and dismissed the petitions as they involved individual grievances of fact without any question of law of public importance.
- Whether the award of back benefits follows automatically upon the declaration that a departmental removal order is without lawful authority?
- Is an employee required to plead and prove that they were not gainfully employed during the period out of service to claim back benefits?
- Does a petition seeking back benefits without prior pleadings before the service tribunal raise a question of law of public importance?
' RANA BHAGWANDAS, J.---Petitioners in both cases seek leave to appeal against order of the Federal Service Tribunal reinstating both of them in service without back benefits. Petitioners have been reinstated in service and the question agitated before us in these petitions is that, once the Tribunal found the departmental order to be without lawful authority, award of back benefits would follow automatically whereas the Tribunal has not recorded any reason for, withholding such benefits.
2. We have heard learned counsel for the parties at great length and examined the memo. Of petitions filed by the petitioners as well as the judgment rendered by the Tribunal. It is nowhere pleaded in the appeals of the petitioners before the Tribunal that, during the period they were out of job, they did not do any business or were not gainfully employed anywhere else. Even before the Tribunal, no specific plea was taken that the petitioners being idle and out of job may be awarded the back benefits for the period during which they remained out of job. We are not inclined to agree with the submission of the learned counsel that in the event of declaration of departmental order as contrary to law or without lawful authority back benefits in each case would follow automatically. Learned counsel has cited Pakistan v. Mr. A.V. Issacs PLD 1970 SC 415, Qadeer Ahmad v. Punjab Labour Appellate Tribunal PLD 1990 SC 787 and N.B.P. v. Punjab Labour Appellate Tribunal 1993 SCM R 105 but the position has been reviewed in Abdul Hafeez Abbasi v. Managing Director, Pakistan International Airlines Corporation 2002 SCM R 1034, which fully supports our view as it has been held in this case that an employee has to demonstrate that he has not been making any earning during the period when he remained out of job and to plea such fact before the original forum. In the absence of any specific pleading and the fact that the issue was not expressly agitated before the Tribunal, we are not called upon to presume and record a finding of fact that both the petitioners remained idle, sitting at home and doing nothing during the period when they remained out of job.
3. Even otherwise this being a case of individual grievance and essentially a question of fact, no question of law of public importance is spelt out in the circumstances with the result that both the petitions are without any substance and hereby dismissed.