SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
PRESENT: 
Mr. Justice Gulzar Ahmed 
Mr. Justice Qazi Faez Isa 
 
CIVIL PETITION NOS.866-L & 867-L OF 2015 
[On appeal against common order dated 06.03.2015 passed by the Lahore High 
Court, Multan Bench, Multan, in W.P.Nos.1712 & 5133 of 2014] 
 
 
Chief Executive MEPCO & others 
[in both cases] 
…Petitioner(s) 
VERSUS 
Muhammad Fazil, etc 
[in both cases] 
…Respondent(s) 
 
 
For the Petitioner(s) 
[in both cases] 
: Rao Muhammad Iqbal, ASC 
Ms. Tasneem Amin, AOR (absent) 
 
  
For Respondent No.1 
[in both cases] 
: Mr. Asad Munir, ASC 
Ch. Akhtar Ali, AOR 
 
  
Date of Hearing 
: 18.04.2019 
 
  
 
  
JUDGMENT 
GULZAR AHMED, J.— The respondent Muhammad Fazil, in both 
petitions, was employed as an Assistant Lineman (BS-5) by the 
petitioner on 16.09.2000 on one-year contract.  This contractual 
employment of the respondent was extended from time to time.  
The President Sports MEPCO wrote a letter to the Executive 
Engineer/Deputy Manager to spare the respondent from duty for 
cricket practice and he was accordingly spared from duty and it 
was done from time to time.  On 18.07.2005, SDO/Assistant 
Manager wrote letter to the respondent to join duty but the 
respondent instead filed an application for medical leave for 112-
days, from 29.06.2005 to 18.10.2005.  This application for medical 
leave apparently was not accepted by the petitioners and 
ultimately the respondent joined service on 16.02.2007 when he 
was dismissed from service for being absent without sanctioned 
leave.  The respondent thereafter served grievance notice on the 
C.P.Nos.866 & 867-L of 2015.doc 
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petitioners and then filed grievance petition in the Punjab Labour 
Court No.9, Multan (Labour Court).  This petition was opposed by 
the petitioners.  After hearing the matter, learned Labour Court 
vide its judgment dated 04.09.2013 accepted the respondent’s 
grievance petition and set aside order of his dismissal but at the 
same time directed holding of inquiry against the respondent.  
Back benefits were not allowed by the Labour Court.  The 
respondent challenged this judgment by filing Labour Appeal 
No.MN-1096 of 2013 before the Punjab Labour Appellate Tribunal 
No.2, Multan (the Tribunal) with the prayer that he be reinstated 
with full back benefits and the order of holding inquiry be set 
aside.  The Tribunal vide its judgment dated 09.12.2013 came to 
the conclusion that the Labour Court ought to have passed order 
of reinstatement of the respondent and allowed the petitioners to 
hold de novo inquiry but as no de novo inquiry was held by them 
in terms of the order of the Labour Court, the respondent’s appeal 
was allowed by setting aside order dated 04.09.2013 directing the 
petitioners to reinstate the respondent in service but without back 
benefits.  Against the judgment dated 09.12.2013 of the Tribunal, 
both the petitioners and respondent filed writ petitions in the 
Lahore High Court, Multan Bench.  The petitioners in its Writ 
Petition No.1712 of 2014 sought setting aside of judgment of the 
Tribunal and dismissal of the grievance petition.  However, the 
respondent in his Writ Petition No.5133 of 2014 prayed for setting 
aside of the judgment of the Tribunal to the extent where it had 
refused him the grant of back benefits.  Both these writ petitions 
were heard by a learned Judge in Chamber of the High Court and 
vide common impugned order dated 06.03.2015 the same were 
disposed of by modifying judgment of the Tribunal by extending all 
back benefits to the respondent.  The petitioners were, however, 
allowed to initiate fresh proceeding, if so, authorized by law. Both 
these petitions for leave to appeal have been filed against the said 
impugned order.   
2. 
 
It is contended by Rao Muhammad Iqbal, learned ASC 
for the petitioners that both the Labour Court as well as the 
Tribunal have concurrently passed order not allowing back 
C.P.Nos.866 & 867-L of 2015.doc 
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benefits to the respondent in exercise of their jurisdiction vested 
under the law and the High Court while exercising writ jurisdiction 
under Article 199 of the Constitution was not competent to upset 
such concurrent judgments and in this respect relied upon the 
case of Muhammad Tufail v. Divisional Forest Officer, Forest 
Division, Lahore & 3 others [1990 SCMR 1708] and Syed 
Kamaluddin Ahmad v. Federal Service Tribunal & others [1992 
SCMR 1348].   
3. 
 
On the other hand, Mr. Asad Munir, learned ASC for 
the respondent has contended that the High Court while dealing 
with the Constitution Petition under Article 199 of the Constitution 
has exercised its discretion in favour of the respondent by granting 
him back benefits and further the High Court has also found that 
the respondent was on sanctioned leave and on this ground 
justified grant of back benefits to the respondent.  
4. 
 
We have heard learned counsel for the parties and 
have also gone through the record of the case.     
5. 
 
We are cognizant that both the Labour Court and the 
Tribunal in their respective judgments have not allowed back 
benefits to the respondent and we understand that such decision 
of the two Courts below was mainly based upon the fact that the 
respondent though alleges to have made application for leave but 
without obtaining its approval went on leave and thus wilfully 
absented himself.  The respondent’s counsel has relied upon the 
leave application of the respondent filed at page 27 of CMA 
No.1933 of 2019, which is a form of application containing name of 
the respondent where he sought medical leave with effect from 
29.06.2005 to 18.10.2005 (112-days) which seems to have been 
recommended by the Assistant Manager (Operation) but ultimately 
there is no order passed by the competent authority sanctioning 
this leave.  We also note that this application is even not signed by 
the respondent as his signature does not appear on the application 
form.  Apart from this document which obviously shows that there 
was no sanction of leave, the respondent on his own admission 
states that he has joined service after availing leave on 16.02.2007 
which is mentioned in the judgment of the Labour Court to be the 
C.P.Nos.866 & 867-L of 2015.doc 
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date on which he came to report for duty after availing leave.  We 
are unable to understand how the leave which respondent has 
initially claimed from 29.06.2005 to 18.10.2005 (112-days) came 
to be extended up to 16.02.2007 for neither the respondent has 
explained this position in his grievance petition nor the Labour 
Court has adverted to this issue and similarly the Tribunal and the 
High Court have also omitted to consider the same.  Be that as it 
may, there was no sanction of leave to the respondent by the 
petitioner and there is no material on record to show that even the 
leave from 29.06.2005 to 18.10.2005 was at all sanctioned to the 
respondent.  The respondent’s very application for grant of leave 
was not signed by him and it also does not contain the order of the 
competent authority sanctioning the same.  Thus, what appears to 
us is that the respondent has remained absent from duty not only 
for the period for which he sought leave but beyond that period, 
therefore, the High Court in its impugned order dated 06.03.2015 
was not justified to hold that the respondent has remained on 
sanctioned leave.  The learned ASC for the respondent has further 
contended that the only principle on which back benefits could be 
denied to the respondent is his gainful employment between the 
period of his dismissal from service to his reinstatement and there 
being no evidence available on the record showing that he was 
gainfully employed, back benefits could not be refused to him.  In 
this respect he has made reference to the case of Sohail Ahmed 
Usmani v. Director General Pakistan Civil Aviation Authority & 
another [2014 SCMR 1843].  It is true that in the cited judgment 
this Court has allowed back benefits on the ground that the 
employee was not gainfully employed during the period of his 
dismissal up to his reinstatement.  However, the employee being 
gainfully employed or not while remaining out of service has not 
always been a reason for granting or non-granting of back benefits 
rather it has been held by this Court in a number of cases that 
where the Court concerned reinstates the employee in service, it is 
not bound to grant back benefits automatically rather it is within 
the discretion of that Court to grant back benefits or not and 
exercise of such discretion could not be interfered with by the High 
C.P.Nos.866 & 867-L of 2015.doc 
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Court in exercise of writ jurisdiction unless it is shown that such 
discretion has been exercised without lawful authority and is of no 
legal effect.  Such discretion has not been interfered with by the 
superior forum.  In this regard, reference is made to the cases of 
Abdul Majid v. Chairman, WAPDA & 2 others [1990 SCMR 1458], 
Muhammad Tufail v. Divisional Forest Officer, Forest Division, 
Lahore & 3 others [1990 SCMR 1708], Humayun Badshah v. Habib 
Bank Limited & 3 others [1996 SCMR 1606] and Syed Kamaluddin 
Ahmed v. Federal Service Tribunal & others [1992 SCMR 1348].  
The further principle is that where the Court or the Tribunal has 
jurisdiction and it determines specific question of fact or even of 
law, unless patent legal defect or material irregularity is pointed 
out, such determination cannot ordinarily be interfered with by the 
High Court while exercising jurisdiction under Article 199 of the 
Constitution.  The very facts of the case amply demonstrate that 
the respondent himself was liable for being proceeded against by 
the department for that he remained on unsanctioned leave not 
only for the period he applied in the purported application but also 
beyond that period.  Both the Labour Court and the Tribunal 
having exercised discretion in not granting back benefits to the 
respondent, such exercise of discretion could not be found to be 
without lawful authority and of no legal effect.  Thus, the 
impugned order of the High Court cannot be sustained in the eye 
of law being in excess of the jurisdiction vested in it, which is liable 
to be set aside.  We, therefore, convert this petition into an appeal 
and partly allow the same by setting aside the impugned order 
dated 06.03.2015 to the extent of granting back benefits to the 
respondent. 
 
 
 
Bench-II 
ISLAMABAD 
18.04.2019 
APPROVED FOR REPORTING 
JUDGE 
 
*Hashmi* 
JUDGE 
 
 
