23/02/2014
2006 P L C (C.S.) 497
[Federal Service Tribunal]
Before Imtiaz Ali Khan and Moazzam Hayat, Members
NASEER AHMAD BALOUCH
Versus
CHAIRMAN, STATE LIFE INSURANCE CORPORATION OF PAKISTAN, KARACHI and 3 others
Appeal No.84(L) of 1999, decided on 7th February, 2003.
(a) Civil Servants Act (LXXI of 1973)---
----S. 17---Service Tribunals Act (LXX of 1973), S.4---Pay---Entitlement---Appeal---Limitation---Employer was not expected to raise plea of limitation in matter of pay---Employer, particularly when it was Government or Government owned Corporation, was always very benevolent towards employees---When an employee claimed pay at enhanced rate after inclusion of increments in his pay, then he had a continuing cause of action---Where there was claim for enhanced pay or for arrears of pay, employee had always acontinuing cause of action and his appeal could not be treated as time-barred---Each and every case had to be decided on its own merits---In case of an employee who was given a clear cut final order that for specific reasons his claim to pay was not tenable, period of limitation would start running from date when that specific order was passed---Such could be a case in which plea of limitation could be taken---In present case, long leave granted to appellant not being without pay, but being with half pay, employers were not justified in saying that appellant was not entitled to annual increments---Said increments would have formed part of his pay till such time he remained in service---Appellant having sustained loss in pay every month, he could not be sacrificed on the altar of limitation---Objection of employer that appeal was time-barred, was repelled, in circumstances.
(b) Civil Servants Act (LXXI of 1973)---
----S. 17---Service Tribunals Act (LXX of 1973), S.4---Appeal---Competency---Objection of employer was that appeal was not competent as appellant had not filed a departmental appeal--Validity---Appellant in his appeal had alleged that he was not granted increments when his salary slip was issued---Salary slip was original order by which increments were refused---Representation of appellant to Deputy General Manager against that, had acquired status of departmental appeal---Objection of employer was without any basis---Appeal was competent in circumstances.
(c) Civil service---
----Annual increments, entitlement to---Civil servant was entitled to earn annual increments during period of leave sanctioned to him---Employee, in the present case, had been allowed leave by competent Authority on half pay which it was not an extraordinary leave without pay---Employee, in circumstances was entitled to annual increments for the period he remained on leave.
2002 PLC (C.S.) 53 ref.
Khadim Hussain Khokhar for Appellant.
Kh. Abdul Rashid for Respondents.
Date of hearing: 7th February, 2003.
JUDGMENT
MOAZZAM HAYAT (MEMBER).---Appellant Naseer Ahmad Balouch, a Senior Officer Assistant in the service of the respondents was granted leave for 696 days from 5-1-1996 to 4-12-1998. After the expiry of his leave he joined his duty. His grievance is that he has not been allowed annual increments which were due to him on 1-1-1998 and 1-1-1999. Having failed in his effort to get the increments from the respondents he has filed the present appeal under section 4 of the Service Tribunals Act, 1973.
2. The appeal has been resisted by the respondents on the ground of limitation as also on merits. It is submitted that since the appellant was on leave and had not performed duty during the period of leave, therefore, he was not entitled to annual increments. A further objection has been taken that the appellant had not filed a departmental appeal against the impugned order, hence, this appeal is not competent.
3. We have heard the learned counsel for the parties and have also perused the record.
4. It transpires from the record that on 18-12-1998 the appellant had made an appeal in writing to the Deputy General Manager 'P&GS' of the State Life Insurance Corporation of Pakistan. In this appeal it was clearly stated by the appellant that he had unblemished record of service, therefore, he was entitled to annual increments for the period he had remained on leave. His, this plea did not find favour with the respondents and was rejected vide order dated 29-12-1998. The present appeal was filed on 27-1-1999. As the order by which the appellant is aggrieved was passed on 29-12-1998 by which is appeal for grant of increments was rejected, therefore, the period of limitation started running from the date. The present appeal was filed on 27-1-1999 within thirty days from 29-12-1998. There, is, therefore, no force in the contention of the respondents that the appeal is time-barred. Even otherwise in matters of pay employer is not expected to raise plea of limitation. An employer particularly when it is Government or Government owned Corporation is always very benevolent towards the employees. The respondents should not have taken the plea of limitation even if it was available to them which in this case is not available. When an employee claims the pay on enhanced rate after inclusion of increments in his pay then he has a continuing cause of action. Every month he is paid lesser pay to which he thinks he is entitled. That being the factual position we hold that where there is claim for enhanced pay or arrears of pay the employee has always a continuing cause of action and his appeal cannot be treated as time-barred. Each and every case has to be decided on its own merits. The case of an employee who is given a clear-cut final order that for specific reasons his claim to pay was not tenable then the period of limitation may start running from the date when that specific order is passed. That may be case in which plea of limitation may be taken. But in the present case the situation is different. The appellant had proceeded on leave which was duly sanctioned to him. During the period of leave he was allowed half pay. Since the leave granted to the appellant was not without pay but was with pay, therefore, the respondents are not justified in saying that the appellant was not entitled to annual increments. As such the appellant has a continuing cause of action to claim annual increments for the period he remained on leave. These increments would have formed part of his pay till such time he remained in service. As he has sustained loss in pay every month he cannot be sacrificed on the altar of limitation. The objection of the respondents that the appeal is time-barred is repelled.
5. The second legal objection of the respondents is that the appellant is not competent as the appellant had not filed a departmental appeal. It is correct that a departmental appeal is a sine qua non for an appeal in this Tribunals under section 4 of the Service Tribunals Act but we find that the appellant had appealed to the Deputy General Manager
for grant of increments. He had filed this appeal because he was not granted increments when his salary slip was issued. The salary slip was the original order by which the increments were refused. Against that his representation to the Deputy General Manager dated 18-12-1998 acquires the status of departmental appeal. In view of this we find that the objection of the respondents is without any basis. This appeal is competent in the above circumstances.
6. On merits we find that the appellant has a good case. He had proceeded on leave which was duly sanctioned to him. He was also allowed half pay during the period he remained on leave. Since half pay was allowed to the appellant, therefore, the respondents are not allowed to contend that the appellant was not entitled to increments as he had remained on extraordinary leave and in that period he had not performed his duty. The respondents could take up this plea had the appellant been allowed extraordinary leave without pay. But due to the peculiar circumstances of the case the respondents cannot take up the defence that the appellant was on leave, therefore, he was not entitled to the annual increments.
7. The learned counsel for the respondents has maintained that as the appellant had remained on leave, therefore, the respondents had not assessed his work. According to him an employee gets increments subject to the condition that he puts in good service. The learned counsel has maintained that annual increments are allowed on the basis of good performance in service. There is no cavil with this proposition. The respondents have not passed any order that the appellant did not have good service record. We have before us a letter issued by Mr. Ismal Matie, Deputy Manager to the Zonal Accountant of the respondents. This letter is dated 10-3-1999. It is clearly mentioned in this letter that the appellant had 25 years uninterrupted and unblemished service with the respondents. From this letter it is proved that there was never an adverse entry against the appellant with regard to his performance as Senior Officers Assistant. By issuing this letter the respondents had assessed the appellant to be a good employee. In view of this the 'respondents were not justified in refusing increments to the appellant as he had good service record.
8. The learned counsel for the appellant has relied on 2002 PLC (CS) 53 in support of his contention that the appellant is entitled to increments notwithstanding the fact that he had remained on leave for the period from 5-1-1997 to 4-12-1998. In this case the Ministry of Finance had taken up the plea before the Apex Court, that since Irshad Hussain appellant was not on active duty on the crucial dates, therefore, he was not entitled to annual increments. The plea of the Finance Department was held to be illogical, irrational and against the spirit of law. The apex Court has been pleased to hold further that a Civil Servant is entitled to earn annual increments during the period of leave sanctioned to him. This ruling is fully applicable to the present case. The appellant had been allowed leave by the competent authority on half pay. It was not an extraordinary leave without pay. As such on the strength of authority cited above we hold that the appellant is entitled to the annual increments for the period he remained on leave.
9. For the foregoing reasons we accept the appeal and direct the respondents to grant annual increments to the appellant which were due on 1-1-1998 and 1-1-1999.
10. No orders as to costs, Parties shall be informed.
H.B.T./270/FST Appeal accepted
2006 P L C (C.S.) 497
[Federal Service Tribunal]
Before Imtiaz Ali Khan and Moazzam Hayat, Members
NASEER AHMAD BALOUCH
Versus
CHAIRMAN, STATE LIFE INSURANCE CORPORATION OF PAKISTAN, KARACHI and 3 others
Appeal No.84(L) of 1999, decided on 7th February, 2003.
(a) Civil Servants Act (LXXI of 1973)---
----S. 17---Service Tribunals Act (LXX of 1973), S.4---Pay---Entitlement---Appeal---Limitation---Employer was not expected to raise plea of limitation in matter of pay---Employer, particularly when it was Government or Government owned Corporation, was always very benevolent towards employees---When an employee claimed pay at enhanced rate after inclusion of increments in his pay, then he had a continuing cause of action---Where there was claim for enhanced pay or for arrears of pay, employee had always acontinuing cause of action and his appeal could not be treated as time-barred---Each and every case had to be decided on its own merits---In case of an employee who was given a clear cut final order that for specific reasons his claim to pay was not tenable, period of limitation would start running from date when that specific order was passed---Such could be a case in which plea of limitation could be taken---In present case, long leave granted to appellant not being without pay, but being with half pay, employers were not justified in saying that appellant was not entitled to annual increments---Said increments would have formed part of his pay till such time he remained in service---Appellant having sustained loss in pay every month, he could not be sacrificed on the altar of limitation---Objection of employer that appeal was time-barred, was repelled, in circumstances.
(b) Civil Servants Act (LXXI of 1973)---
----S. 17---Service Tribunals Act (LXX of 1973), S.4---Appeal---Competency---Objection of employer was that appeal was not competent as appellant had not filed a departmental appeal--Validity---Appellant in his appeal had alleged that he was not granted increments when his salary slip was issued---Salary slip was original order by which increments were refused---Representation of appellant to Deputy General Manager against that, had acquired status of departmental appeal---Objection of employer was without any basis---Appeal was competent in circumstances.
(c) Civil service---
----Annual increments, entitlement to---Civil servant was entitled to earn annual increments during period of leave sanctioned to him---Employee, in the present case, had been allowed leave by competent Authority on half pay which it was not an extraordinary leave without pay---Employee, in circumstances was entitled to annual increments for the period he remained on leave.
2002 PLC (C.S.) 53 ref.
Khadim Hussain Khokhar for Appellant.
Kh. Abdul Rashid for Respondents.
Date of hearing: 7th February, 2003.
JUDGMENT
MOAZZAM HAYAT (MEMBER).---Appellant Naseer Ahmad Balouch, a Senior Officer Assistant in the service of the respondents was granted leave for 696 days from 5-1-1996 to 4-12-1998. After the expiry of his leave he joined his duty. His grievance is that he has not been allowed annual increments which were due to him on 1-1-1998 and 1-1-1999. Having failed in his effort to get the increments from the respondents he has filed the present appeal under section 4 of the Service Tribunals Act, 1973.
2. The appeal has been resisted by the respondents on the ground of limitation as also on merits. It is submitted that since the appellant was on leave and had not performed duty during the period of leave, therefore, he was not entitled to annual increments. A further objection has been taken that the appellant had not filed a departmental appeal against the impugned order, hence, this appeal is not competent.
3. We have heard the learned counsel for the parties and have also perused the record.
4. It transpires from the record that on 18-12-1998 the appellant had made an appeal in writing to the Deputy General Manager 'P&GS' of the State Life Insurance Corporation of Pakistan. In this appeal it was clearly stated by the appellant that he had unblemished record of service, therefore, he was entitled to annual increments for the period he had remained on leave. His, this plea did not find favour with the respondents and was rejected vide order dated 29-12-1998. The present appeal was filed on 27-1-1999. As the order by which the appellant is aggrieved was passed on 29-12-1998 by which is appeal for grant of increments was rejected, therefore, the period of limitation started running from the date. The present appeal was filed on 27-1-1999 within thirty days from 29-12-1998. There, is, therefore, no force in the contention of the respondents that the appeal is time-barred. Even otherwise in matters of pay employer is not expected to raise plea of limitation. An employer particularly when it is Government or Government owned Corporation is always very benevolent towards the employees. The respondents should not have taken the plea of limitation even if it was available to them which in this case is not available. When an employee claims the pay on enhanced rate after inclusion of increments in his pay then he has a continuing cause of action. Every month he is paid lesser pay to which he thinks he is entitled. That being the factual position we hold that where there is claim for enhanced pay or arrears of pay the employee has always a continuing cause of action and his appeal cannot be treated as time-barred. Each and every case has to be decided on its own merits. The case of an employee who is given a clear-cut final order that for specific reasons his claim to pay was not tenable then the period of limitation may start running from the date when that specific order is passed. That may be case in which plea of limitation may be taken. But in the present case the situation is different. The appellant had proceeded on leave which was duly sanctioned to him. During the period of leave he was allowed half pay. Since the leave granted to the appellant was not without pay but was with pay, therefore, the respondents are not justified in saying that the appellant was not entitled to annual increments. As such the appellant has a continuing cause of action to claim annual increments for the period he remained on leave. These increments would have formed part of his pay till such time he remained in service. As he has sustained loss in pay every month he cannot be sacrificed on the altar of limitation. The objection of the respondents that the appeal is time-barred is repelled.
5. The second legal objection of the respondents is that the appellant is not competent as the appellant had not filed a departmental appeal. It is correct that a departmental appeal is a sine qua non for an appeal in this Tribunals under section 4 of the Service Tribunals Act but we find that the appellant had appealed to the Deputy General Manager
for grant of increments. He had filed this appeal because he was not granted increments when his salary slip was issued. The salary slip was the original order by which the increments were refused. Against that his representation to the Deputy General Manager dated 18-12-1998 acquires the status of departmental appeal. In view of this we find that the objection of the respondents is without any basis. This appeal is competent in the above circumstances.
6. On merits we find that the appellant has a good case. He had proceeded on leave which was duly sanctioned to him. He was also allowed half pay during the period he remained on leave. Since half pay was allowed to the appellant, therefore, the respondents are not allowed to contend that the appellant was not entitled to increments as he had remained on extraordinary leave and in that period he had not performed his duty. The respondents could take up this plea had the appellant been allowed extraordinary leave without pay. But due to the peculiar circumstances of the case the respondents cannot take up the defence that the appellant was on leave, therefore, he was not entitled to the annual increments.
7. The learned counsel for the respondents has maintained that as the appellant had remained on leave, therefore, the respondents had not assessed his work. According to him an employee gets increments subject to the condition that he puts in good service. The learned counsel has maintained that annual increments are allowed on the basis of good performance in service. There is no cavil with this proposition. The respondents have not passed any order that the appellant did not have good service record. We have before us a letter issued by Mr. Ismal Matie, Deputy Manager to the Zonal Accountant of the respondents. This letter is dated 10-3-1999. It is clearly mentioned in this letter that the appellant had 25 years uninterrupted and unblemished service with the respondents. From this letter it is proved that there was never an adverse entry against the appellant with regard to his performance as Senior Officers Assistant. By issuing this letter the respondents had assessed the appellant to be a good employee. In view of this the 'respondents were not justified in refusing increments to the appellant as he had good service record.
8. The learned counsel for the appellant has relied on 2002 PLC (CS) 53 in support of his contention that the appellant is entitled to increments notwithstanding the fact that he had remained on leave for the period from 5-1-1997 to 4-12-1998. In this case the Ministry of Finance had taken up the plea before the Apex Court, that since Irshad Hussain appellant was not on active duty on the crucial dates, therefore, he was not entitled to annual increments. The plea of the Finance Department was held to be illogical, irrational and against the spirit of law. The apex Court has been pleased to hold further that a Civil Servant is entitled to earn annual increments during the period of leave sanctioned to him. This ruling is fully applicable to the present case. The appellant had been allowed leave by the competent authority on half pay. It was not an extraordinary leave without pay. As such on the strength of authority cited above we hold that the appellant is entitled to the annual increments for the period he remained on leave.
9. For the foregoing reasons we accept the appeal and direct the respondents to grant annual increments to the appellant which were due on 1-1-1998 and 1-1-1999.
10. No orders as to costs, Parties shall be informed.
H.B.T./270/FST Appeal accepted
