2021 SCMR 461 | MANZOOR ELAHI Versus PRESIDENT UBL

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2021 S C M R 461

2021 S C M R 461

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

MANZOOR ELAHI---Appellant

Versus

PRESIDENT UBL and others---Respondents

Civil Appeal No. 176-L of 2011, decided on 18th January, 2021.

(Against judgment dated 08.06.2010 of Federal Service Tribunal, Lahore passed in M.P. No. 43 of 2008)

Service Tribunals Act (LXX of 1973)---

----S. 5(1)---Service Tribunal, judgment of---Non-implementation of judgment by the employer---Abatement of judgments of the Tribunal in view of the case reported as Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602)---Scope---Service Tribunal vide its judgment dated 07-09-1998 ordered reinstatement in service of appellant-employee---Said judgment was not complied with by the respondent-bank---Subsequently appellant was again dismissed from service after de novo inquiry proceedings without reinstating him into service---Such dismissal order was again challenged by the appellant before the Tribunal---Dismissal order was (again) set aside by the Tribunal vide judgment dated 01-06-2006 and the respondent-Bank was again directed to reinstate the appellant in service in pursuance of earlier judgment of the Tribunal dated 07-09-1998 and proceed further in accordance with the directions issued in the said judgment---Second judgment of the Tribunal was also not implemented by the respondent-Bank on the ground that the judgment of the Tribunal dated 01.06.2006 stood abated in view of the case reported as Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602) [Mubeen-us-Salam's case]---Held, that perusal of 'Mubeen-us-Salam's case' as clarified in the case of Muhammad Idrees v. Agricultural Development Bank of Pakistan (PLD 2007 SC 681) led to the conclusion that the Service Appeal filed by the appellant did not abate because the judgment of the Tribunal was never challenged by the respondent-bank and attained finality and was executable---In allowing the Service Appeal of the appellant, the Tribunal had directed the respondent-Bank to reinstate him in service pursuant to the judgment of the Tribunal dated 07-09-1998 and proceed in accordance with the directions given in the judgment---Conduct of the respondent-Bank had all along been obstructive and showed lack of respect for the judicial system and verdicts of Courts---However at present much water had flown under the bridge since the year 1998 and the appellant had also crossed the age of superannuation since long, therefore, it would be impracticable to seek implementation of the judgment of the Tribunal owing to efflux of time without any fault on the part of the appellant---Delay in delivery of justice to the appellant had occurred on account of changes in law for reasons not attributable to him and on account of no fault on his part---Appellant stated before the Court that he would be satisfied if he was given his dues in accordance with Golden Handshake Scheme/Voluntary Separation Scheme ("GHS/VSS") given by the respondent-Bank to its other employees considering that on the date of his dismissal i.e. 15-07-1997 the appellant had more than 20 years of service to his credit---Supreme Court observed that such stance of the appellant was fair and reasonable and would advance the ends of justice, and consequently directed that the respondent-Bank shall calculate and release the dues of the appellant in accordance with the formula of GHS/VSS offered by it to its employees keeping in view the length of service of the appellant from the date of his employment till the date of his first dismissal on 15-07-1997, and that his case will be considered as if he was never dismissed, and was in service of the Bank and had opted for the GHS/VSS---Appeal was allowed.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 and Muhammad Idrees v. Agricultural Development Bank of Pakistan PLD 2007 SC 681 ref.

Mian Mehmood Hussain, Advocate Supreme Court for Appellant.

Mian M. Zulqarnain, Advocate Supreme Court for Respondents.

Date of hearing: 20th November, 2020.

JUDGMENT

IJAZ UL AHSAN, J.---This appeal with leave of the Court is directed against an order of the Federal Service Tribunal, Lahore ("the Tribunal") dated 08.06.2010. Through the impugned order, a Miscellaneous Petition bearing No.43 of 2008 filed by the Appellant was dismissed for want of jurisdiction.

2. Brief facts giving rise to this appeal are that the Appellant was an employee of the Respondent-Bank. He was dismissed from service vide order dated 15.07.1997. He challenged the order of dismissal before the Tribunal by way of a Service Appeal hearing No. 1105(L)CS of 1997. The appeal was allowed vide judgment dated 07.09.1998 and he was directed to be reinstated into service. Such order was not complied with and the Appellant was again dismissed from service vide order dated 07.12.1999 passed in de novo inquiry proceedings without reinstating him into service. Such dismissal order dated 07.12.1999 was again challenged by the Appellant before the Tribunal. The dismissal order was set aside and the Respondent-Bank was again directed to reinstate the Appellant in service in pursuance of earlier judgment of the Tribunal dated 07.09.1998 and proceed further in accordance with the directions issued in the said judgment. Unfortunately, the second judgment was also not implemented on the ground that the judgment dated 01.06.2006 stood abated in view of the judgment of this Court passed in the case reported as Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602).

3. The Appellant consequently filed a Miscellaneous Petition seeking direction from the Tribunal to the Respondent-Bank for implementation of its judgment dated 01.06.2006. The Tribunal dismissed the MP for want of jurisdiction vide impugned order dated 08.06.2010.

4. Leave to appeal was granted by this Court on 24.05.2011 in the following terms:

"Refers to para 14(b) of the judgment of this Court reported as Muhammad Idrees v. Agricultural Development Bank of Pakistan (PLD 2007 SC 681) to contend that the judgment of the Service Tribunal, subject matter of this petition had attained finality and it had to be implemented in letter and spirit. Having heard the learned counsel for the petitioner at some length, leave is granted inter alia to consider the said issue".

5. The learned ASC for the Appellant submits that the judgment of the Tribunal is not sustainable in law in view of the fact that it has been rendered without considering and applying the ratio contained in paragraph 14(b) of the judgment of a larger Bench of this Court in the case reported as Muhammad Idrees v. Agricultural Development Bank of Pakistan (PLD 2007 SC 681). According to the said paragraph, the judgments rendered by the Tribunal, which were not challenged before this Court, had attained finality and were required to be implemented. He maintains that the Tribunal has lost sight of the fact that its judgment dated 01.06.2006 was not implemented, the Respondent-Bank never challenged the same and as such it has attained finality. He further maintains that the Tribunal was obliged to direct the Respondent-Bank for implementation of its judgment dated 01.06.2006. He also maintains that the Tribunal had implemented a judgment in the case of Sher Muhammad v. State Bank of Pakistan directing the Respondent to implement its judgment.

6. The learned ASC for the Respondent-Bank on the other hand has drawn our attention to paragraph 109(d) of the judgment reported as Muhammad Mubeen- us-Salam v. Federation of Pakistan (PLD 2006 SC 602) which reads as follows:

"The cases in which the order of Service Tribunal has been implemented shall remain intact for a period of 90 days or till the filing of appropriate proceedings whichever is earlier."

By relying on said paragraph, the learned ASC submits that since the judgment of the Tribunal was not implemented, the same had abated and consequently could not have been implemented. He maintains that the Respondent-Bank need not have challenged the judgment any further in view of the fact that the same had abated by reasons of the aforesaid judgment of this Court in the case of Muhammad Mubeen-us-Salam (ibid). That being so, it can neither be treated as a past and closed transaction nor is it executable being non existent.

7. The learned ASC for the Respondent-Bank has further made reference to the case of Muhammad Idrees v. Agricultural Development Bank of Pakistan (PLD 2007 SC 681). He drew our attention to a portion of paragraph 8 of the said judgment in which this Court expressed the following view:

"To concede to the prayer that judgments rendered by the learned Service Tribunal implemented or not should be maintained will be totally destructive of the law declared in the said judgment. If abatement is applied only to the petitions or appeals of the employees pending before this court, it will amount to validating the judgments/ orders of the Federal Service Tribunal without even examining them. In fact, while directing abatement in para 109 of the judgment in Mubeen-us Salam this Court was absolutely clear that the proceedings initiated before the learned Federal Service Tribunal from the very inception stood abated."

He has further argued that Muhammad Mubeen-us-Salam's case (ibid) which was decided by a nine Members Bench of this Court was further clarified and explained in the case of Muhammad Idrees (ibid) and there is no ambiguity in the matter that only those cases in which judgments of the Federal Service Tribunal have been implemented were arguably saved, however, those which were not implemented abated including those which were pending in different fora. This clarification is also followed in the case of Zarai Traqiati Bank Limited v. Mushtaq Ahmed Korai (2007 SCMR 1698) where it was held that clause (d) must he read and interpreted in the light of opening part of paragraph 109 attaching finality to the doctrine of past and closed transaction, as by any stretch of reasoning, it cannot be said that all cases acted upon and implemented in entirety would be open for review by the employer. In all probability, the cases mentioned in clause (d) (supra) refer only to those cases against the judgment of the Tribunal which were pending before the Court or were filed in office or were in the pipeline i.e. to be filed before this Court by way of petitions under Article 212(3) of the Constitution.

8. We have heard the learned counsel for the parties and gone through the record. Both parties have consensus on the following points:

i) That the judgment of the Tribunal dated 01.06.2006 directed reinstatement of the Appellant with back benefits;

ii) the said judgment of the Tribunal was not implemented by the Respondent-Bank;

iii) the period of limitation to approach this Court was still available and had not been exhausted; and

iv) the judgment in Muhammad Mubeen-us -Salam's case was announced on 27.06.2006 i.e. before the case of the Appellant was decided by the Tribunal vide its judgment dated 01.06.2006.

9. Admittedly, the Respondent-Bank never challenged the judgment of the Tribunal dated 01.06.2006 before this Court in terms of paragraph 109(d) of Muhammad Mubeen-us-Salam's case. The only question requiring determination by us in the facts and circumstances of the present case is whether the proceedings initiated by the Appellant before the Tribunal stood abated in light of the judgment in the case of Muhammad Mubeen-us-Salam as clarified in the case of Muhammad Idrees (ibid). Perusal of Muhammad Mubeen -us-Salam's case as clarified in the case of Muhammad Idrees leads us to the conclusion that the Service Appeal filed by the Appellant did not abate because the judgment of the Tribunal was never challenged by the Respondent-Bank and attained finality. In. reaching this conclusion, we rely on the following paragraphs of the judgment passed in the case of Muhammad Idrees (ibid) which for ease of reference are reproduced below:

"12. We will like to reiterate here that whatever was said by this Court in the judgment in Mubeen-us-Salam supra applied only to the proceedings in relation to the cases which were pending before this Court, (either at appeal stage or at leave granting stage) and, therefore, the cases in which judgments of the learned Federal Service Tribunal were never assailed before this Court have attained finality.

13. We have noticed another grievance of Syed lftikhar Hussain Gillani that some of the employees, successful before the Service Tribunal, had misunderstood the judgment of this Court and had not recoursed to remedies available to them in law. Therefore, any interpretation contrary to the one made by this Court in the case of State Life Insurance Corporation of Pakistan supra will seriously prejudice the employees. We are inclined to extend time in such cases.

14. This Court accordingly finds and directs as follows:

(a) The cases noted at serial Nos. 89 to 1914 stand abated with the result that the proceedings and judgments rendered by the learned Federal Service Tribunal also stand nullified. The affected/aggrieved parties are allowed a further period of 90 days to have recourse to the available remedies.

(b) The judgments of the learned Federal Service Tribunal rendered on the basis of section 2-A of the Service Tribunals Act, 1973 which were never challenged before this Court have attained finality and shall be implemented by the concerned organizations without dragging the employees into further litigation.

(c) The cases in which the services of the employees were governed by statutory rules are not hit by Mubeen-us-Salam's case."

On the basis of the above, we have no hesitation in holding that by reason of the principles of law laid down in the case of Muhammad Mubeen-us-Salam as explained and clarified in Muhammad Idrees's case, the judgment of the Tribunal rendered in Appellant's case attained finality and was executable.

11. Now the question arises which Court would execute the judgment of the Tribunal which had attained finality, considering that after Muhammad Mubeen-us -Salam's case the Tribunal ceased to have jurisdiction to entertain and decide matters against the Respondent-Bank. In this context, we are minded to direct the Appellant to approach the High Court in its constitutional jurisdiction for implementation of the judgment of the Tribunal. However, considering the fact that he has been running from pillar to post for the past ten years seeking implementation of a judgment which had validly been passed in his favour by a Tribunal which at the relevant time had the jurisdiction to entertain and decide the matter it would be unjust and unfair to relegate him to another round of litigation where he may spend the rest of his life awaiting justice. This state of affairs is unacceptable and abhorrent to the very concept of administration of justice. It would in our opinion be a classic example of the adage "justice delayed is justice denied".

12. We also notice that in allowing the Service Appeal of the Appellant, the Tribunal had directed the Respondent-Bank to reinstate him in service pursuant to the judgment of the Tribunal dated 07.09.1998 and proceed in accordance with the directions given in the judgment. The question of back benefits would depend upon the outcome of de novo inquiry. Keeping in view that much water has flown under the bridges since 1998 and the Appellant has also crossed the age of superannuation, since long it would be impracticable to seek implementation of the judgment of the Tribunal owing to efflux of time without any fault on the part of the Appellant. The delay in delivery of justice to him has occurred on account of changes in law for reasons not attributable to him and on account of no fault on his part.

13. Confronted with this situation, the learned counsel for the Appellant states offered that the Appellant would be satisfied if he was given his dues in accordance with Golden Handshake Scheme/Voluntary Separation Scheme ("GHS/VSS") given by the Respondent-Bank to its other employees considering that on the date of his dismissal i.e. 15.07.1997 the Appellant had more than 20 years of service' to his credit. Although the learned counsel for the Respondent-Bank has reservations in accepting this, we find that the stance taken on behalf of the Appellant is fair and reasonable and would advance the ends of justice. We also find that the conduct of the Respondent-Bank has all along been obstructive and shows lack of respect for the judicial system and verdicts of Courts. We therefore, direct the Respondent-Bank to calculate and release the dues of the Appellant in accordance with the formula of GHS/VSS offered by it to its employees keeping in view the length of service of the Appellant from the date of his employment till the date of his first dismissal on 15.07.1997. His case will be considered as if he was never dismissed, was in service of the Bank on 07.12.1999 and had opted for the GHS/VSS. The aforesaid amount shall be calculated and paid to the Appellant before 15.02.2021 under intimation to the Registrar of this Court which shall be placed before us in Chambers along with a copy of the Cheque/Pay Order and the calculations sheet on the basis of which the Respondent-Bank may have calculated the dues of the Appellant. In case, the aforesaid is not done, the Appellant may move this Court for initiation of proceedings against the top Management of the Respondent-Bank for appropriate proceedings for failure to implement the judgment of this Court.

14. For reasons recorded above, we allow this appeal with costs throughout in the terms noted above.

MWA/M-4/SC Appeal allowed.