ASGHAR ALI vs DISTRICT AND SESSIONS JUDGE, BAHAWALNAGAR And Other
The petitioner, a Junior Clerk who was compulsorily retired from service, challenged the orders through a departmental appeal and subsequently before the Punjab Service Tribunal. The Service Tribunal accepted the appeal, set aside the compulsory retirement orders holding them not tenable under the law, and reinstated the petitioner with the intervening period treated as leave of the kind due. Dissatisfied with the denial of back benefits, the petitioner sought leave to appeal before the Supreme Court of Pakistan. The core legal question was whether an employee whose compulsory retirement is declared illegal and without jurisdiction is entitled to back benefits for the period they remained out of service through no fault of their own. The Supreme Court held that leave to appeal should be granted to consider the entitlement to back benefits under such circumstances. The key principle laid down is that where an employee's removal from service is found to be unlawful, the question of their entitlement to back benefits requires consideration by the apex court.
- Whether an employee whose compulsory retirement is held to be illegal and without jurisdiction is entitled to back benefits?
- Can an authority acting as an authorized officer award a major penalty?
- Does the acquisition of a fresh domicile preclude a finding of mala fide intention in public employment cases?
ORDER
SAIDUZZAMAN SIDDIQUI, J.- The petitioner who was employed as Junior Clerk was compulsory retired from the service on 29.6.1994, on the report of Justice a.m. Tiwana that he has been employed in service as a result of recommendation by Additional Sessions Judge, Bahawalnagar.
The departmental appeal filed by the petitioner failed when it was rejected on 22.8.1995. Thereafter the petitioner preferred a service appeal before the Punjab Service Tribunal which has been accepted as follows:- The parties have been heard. There is no ban on acquiring fresh domicile. The appellant had settled in Bahawalnagar and had obtained the domicile certificate 3 years before being appointed as Jr. Clerk. As such any mala fide intention in his part is precluded. More over, in this case the Distt. and Sessions Judge has acted as Authorization Officer as well as Authority. This Tribunal has already held in Appeal No. 15/91 deciding on 8.3.1994, that when the Authority acts as Authorized Officer it can only award minor penalty. This has been the consistent view of this Tribunal as borne out by judgments cited as PLC 1995 (CS) P. 112 and 32. As such the impugned orders dated 29.6.1994 and final order dated 22.8.1995 are not tenable under the law. These orders are, therefore, set-aside with the result that the appellant shall stand reinstated in service with immediate effect. The period intervening between his dismissal and re-instatement shall be treated as leave of the kind due.
The appeal is allowed as above."
2. In seeking leave to appeal, the Learned counsel for the petitioner contended that the petitioner's compulsory retirement from the service having been held to be illegal and without jurisdiction the petitioner was entitled not only to be reinstated in service but also entitled to the payment of the back benefits for the period he remained due on service for no fault of his. Reliance has been placed by the Learned counsel on the case of Noor Muhammad line man Vs. Superintending Engineer (1998 SCM R 257) wherein under similar circumstances leave has been- granted by this Court, We, accordingly, grant leave to appeal in the above case to consider whether in view of the findings of the Learned Service Tribunal that the compulsory retirement of the petitioner was not in accordance with the law, he was entitled to be reinstated in service with all the back benefits.