1. The petitioner has filed this grievance petition under section 49(c) of the I.R.O.,against his illegal retirement on 8-3-2003 instead of 2-7-2003 and for payment of wages and service benefits/ pensionary benefits, emoluments as due on 2-7-2003 with a prayer of cancelling notices dated 8- 3-2003. The petitioner averred in this grievance petition that he filed Case No,4-A(264)/02-L dated 3-7-2002 in this Commission for setting aside the show-cause. Notice dated 5-2-2002 and for the grant of all service benefits to the petitioner as due on 29-6-2002 and restraining the respondents from depriving him from his due service benefits on account of unfair labour practice due to the petitioner's involvement in lawful trade union activities. The petitioner contended that he was illegally suspended vide notice dated 13-4-2002 and a show-cause notice dated 5-2-2002 was received by him on27-5-2002 containing the false and baseless allegations which resulted in his illegal suspension on 13-4-2002. A directive was issued by this Commission in the aforesaid case to redress all the grievances of the petitioner since the latter had applied for his premature retirement. As a result of this direction, the petitioner was exonerated of all the charges against him and was put back on duty post facto treating his suspension period as on duty. It was done by the General Manager through Divisional Superintendent Peshawar. The petitioner further contended that later on he was illegally retired premature on 8-3-2003 by the respondents Nos.4 and of 5 their own and without any request of the petitioner who challenged this retirement before the respondents Nos.4 and 5 vide his applications dated 10-3-2003, 28-4-2003 and 22-5-2003 but without any result from the said respondents. He also moved the General Manager, Pakistan Railways/respondent No,1 for decision of his aforesaid application but the said application is also pending undecided with a mala fide intention resulting in unfair labour practice due to the petitioner's lawful trade union activities. The petitioner also requested for payment of 180 days encashment admissible under the rules as he has not availed the LPR but that too also remained undecided, hence this petition.
2. The respondents contested the petition challenging thereby the jurisdiction of this Commission in view of Article 212 of the Constitution of Islamic Republic of Pakistan as the petitioner being a retired person, there is no question of unfair labour practice and on merits it was contended that the petitioner was taken up for disciplinary proceedings under the relevant Civil Servant Law for corruption and embezzlement where he was liable to be dismissed from service but he illegally approached the N.I.R.C. Which had no jurisdiction in the matter, that the petitioner was suspended in accordance with law but the former Sr. Member N.I.R.C. Without adverting to the request of jurisdiction, observed that some indulgence should be shown to the petitioner and instead of dismissing him under the disciplinary proceedings, he may be prematurely retired as already requested by him and notwithstanding the question of jurisdiction and merits of the case, desire of the Honourable Senior Member N.I.R.C. Was honoured by the Department and it was done in the aforesaid back draw. It was also contended that the petitioner was retired in accordance with his own request as reflected from order dated 21-11-2002 of the Commission. With regard to the applications, it was contended that the same have been turned down by the respondents and the General Manager has already decided that matter which has been implemented. With regards to petitioner's claim for leave encashment, it was contended that there are some recoveries pending against the petitioner and the matter of leave encashment is being dealt with in that perspective. It was contended that the General Manager referred thematter to Financial Advisor and Chief Accounts Officer Pakistan Railways who declined to waive off the Government dues. The petitioner was allowed to submit his replication to the reply of the respondent by the learned former Member of this Commission vide order dated 18-9-2003 and vide order dated 7-1-2004, the respondent was allowed to submit its reply to the replication and on the basis of these pleadings, the former Member had heard the arguments on 3-3-2004, since, with regard to the facts of the case the parties were not at variance. However, due to the conclusion of his contract, he could not decide the matter hence fresh arguments were heard by the undersigned.
3. The petitioner contended in the replication that there were two groups in the Pakistan Railways for checking the passengers, one working under F.A & C.A.O. Pakistan Railways and was called as Accounts Group while the other working under the C.C.M. Pakistan Railways and was called Commercial Group. The petitioner being a clerk under F.A. & C.A.O. Pakistan Railways was appointed as TTE Accounts on 17-10-1973 on tenure basis for five years while he worked as TTE from 1973 to 1981 when he was reverted as UDC as he was shown absent malafidely while working as TTE and being a UDC he was dismissed vide order dated 22-10-1981 which dismissal was converted into removal from service on appeal vide order dated 23-10-1981. All these orders were challenged by the petitioner before the N.I.R.C. Who suspended the operation of these orders on 11-3-1982. During the pendency of that appeal the respondent filed a Writ Petition No,1260 of 1982 against the order of this Commission dated 11-3-1982 challenging the jurisdiction of this Commission in the Lahore High Court where it was decided under agreement by both the parties that the point of jurisdiction shall be decided by the N.I.R.C. Which was decided vide order dated 13-11-1982 and it was held that this Commission has the jurisdiction to decide the matter pending before it. The respondent filed another Writ Petition No,129 of 1983 against the said order wherein it was decided by the High Court that the matter be decided by the N.I.R.C. On the basic nature of duties lastly performed by the petitioner as held in PLD 1981 SC at page 172 wherein it was held that the determination of question whether the person concerned falls within the category of workman or Civil Servant, the occupation or duty of such person at the relevant time is to be considered for such purpose. The petitioner contended that as he was performing the duties as TTE at the relevant time, this Commission has jurisdiction to decide this case and the writ petition was decided accordingly. The petitioner contended that his case before the N.I.R.C. Was decided on 26-7-1987, he was reinstated and ordered to be absorbed in Commercial Group as STE under the CCM Pakistan Railways in terms of the basis of the Chairman Pakistan Railways dated 26-4-1983. The petitioner was granted back- benefits by the N.I.R.C. Which were not given to him, hence he had filed another Case No,7(64) of 1988 in this Commission for back-benefits and seniority. The petitioner was granted promotion as G.I. TTE Accounts in BS-12 w.e.f, 6-1-1984 and as T.T.I. Accounts in BS-14 w.e.f, 27-4-1987 and Pakistan Railways issued Officer Order No,62 dated 15-12-1988 complying with the orders of the N.I.R.C.
Resulting in acceptance of its jurisdiction. There is a long history of litigation between the petitioner and the respondent which has been narrated in the replication. The petitioner was suspended vide order dated 13-4-2002 and later on a show-cause notice dated 5 of 2002 was issued having been received by the petitioner on 27-5-2002. This was also challenged before this Commission vide Case No,4A(264)/02-L, During the pendency of this case the General Manager Pakistan Railways withdrew the suspension order and show-cause notice and exonerated the petitioner from the allegations and he was put back on duty with post fact effect vide his letter dated 20-2-2003.
4. The petitioner contended that he was retired prematurely after being exonerated from all the allegations. He had requested for his premature retirement w.e.f, 29-6-2002 and as no decision could be taken by the respondent up to 29-6-2002, the petitioner modified his date of premature retirement as 30-6-2003 vide his application dated 17-1-2003 which was admissible under the rules but the respondent with mala fide intention illegally retired the petitioner on 8-3-2003 instead of 30-6-2003 which amounts to a punishment due to his lawful trade union activities. With regard to dismissal of his application, the petitioner contended that he was never informed about it and this is an afterthought and the implementation of the orders of the G.M., Pakistan Railways is not in its true letter and spirit. In the reply to the replication, the respondent has contended that the petitioner has travelled beyond the original petitionand in the garb of replication, he has made absolutely a new case, that terminal benefits of the petitioner have been carefully calculated and paidto him and there is no live cause of action in the field. The respondentalso reiterated its objection regarding jurisdiction of this Commission, and that the petitioner himself moved for his immediate retirement andthere was a specific order by the Member of this Commission to processthe retirement case and inform the Commission accordingly and keeping in view the aforesaid order coupled with other factors including the conclusion of disciplinary proceedings and the petitioner's request for retirement, action was taken strictly in accordance with law and no unfair labour practice was committed anywhere.
5. A lengthy history of litigation between the petitioner and the respondent starting from 1981 has been narrated in the pleading of the parties, however, this case precisely is concerned with regard the matter , in issue and which is a request of premature retirement made by the petitioner vide application dated 16-1-2002 in which he had requested for his retirement w.e.f, 29- 6-2002 on account of his domestic circumstances and on ground of having completed about 39 years of service. The respondent's contention is that disciplinary proceedings were pending against the petitioner under the relevant Civil Servants Laws for corruption and embezzlement whereby he was liable to be dismissed but the petitioner illegally approached this Commission which had no jurisdiction in the matter and confronted with the prospect of dismissal, the petitioner sought his premature retirement and since the former Sr. Member N.I.R.C. Without adverting to the question of jurisdiction observed that some indulgence should be shown to the petitioner and instead of dismissing him under the disciplinary proceedings, he may be prematurely retired as already requested by him and notwithstanding the question of jurisdiction on merits of the case, desire of the learned Sr. Member N.I.R.C. Was complied by the respondent. Irrespective of the correctness or otherwise in the contention of the respondent, I would first observe that the authorities of the respondent were not competent to retire the petitioner from duty of their choice. The petitioner submitted the application on 16-1-2002 for retirement w.e.f, 29-6-2002, that application was not disposed of when the petitioner was served with a show-cause notice dated 13-4-2002. It was incumbent upon the Authorities of the respondent to have rejected the application for premature retirement due to the disciplinary proceedings being taken against the petitioner but during the pendency of that application, the said show-cause notice was issued which was accompanied with a statement of allegations and thereafter the petitioner was put under suspension. At the same time that suspension was withdrawn and the period of his suspension was treated on duty vide order dated 26-2-2003 by the Divisional Superintendent Railways. The petitioner submitted an application on 20-1-2003 requesting to retire him from 30-6-2003 instead of 29-6-2002, however, the respondent Authorities retired the petitioner vide order dated 8-3-2003 with immediate effect.
6. The law with regard to premature retirement is contained in para. 5 of the Finance Division OM.No,0B2/1263--IMP(1) which provides:-- "Subject to the provisions of the Essential Services Maintenance Act, all Government servants shall have the right to retire on a Retiring Pension after completing 25 years qualifying service, provided that a Government servant, who intends to retire before attaining the age of superannuation, shall, at least three months before the date on which he intends to retire, submit a written intimation to the authority which appointed him, indicating the date on which he intends to retire. Such an intimation, once submitted, shall be final and shall not be allowed to be modifiedor withdrawn. (The right given by this paragraph shall not however, be available to Government servants against whom a departmental enquiry is pending)."
' However, there was an amendment in the aforesaid rules and vide OM No,23 281-CV (B) it was decided that 'if the Government servant withdraws his application for premature retirement or modifies the date of retirement, before its acceptance by the competent authority, the application or the date of retirement shall be deemed to have been withdrawn or modified as the case may be. Admittedly the order of premature retirement of the petitioner on his application dated 16-1- 2002 for premature retirement w.e.f, 29-6-2002 had not been, passed by 17-1-2003 when the petitioner made another application requesting the G.M. Pakistan Railways, to retire him w.e.f, 30- 6-2003 instead of 29-6-2002. This indicates that the petitioner, since had not been retired by the time the order dated 8-3-2003 was passed, which modified his date of premature retirement and the respondent was duty bound to accept the modified date as the date of his retirement in view of the aforesaid Office Memorandum recorded in ESTACODE CIVIL ESTABLISHMENT CODE.
7. . There is another aspect of the matter is that the impugned order dated 8-3-2003 indicates that the petitioner was premature retired w.e.f, said date as he had been asking for the same since long. This is a misleading concept, since the petitioner had given a definite date of his retirement initially which was 29-6-2002. The respondent was very much competent to retire the petitioner from that date but instead disciplinary proceedings were started against him. If the respondents had decided to retire the petitioner, it should have been from the date that he applied for or the date that he modified subsequently vide application dated 17-1-2003. The impugned order dated 8-3-2003 would be treated as an order of the petitioner regarding his compulsory retirement which could not be possible without a disciplinary action against him.
8. So far as the respondent's contention that the disciplinary proceedings were under way against the petitioner on charge of corruption and embezzlement and due to indulgence of the learned Sr.
Member of this Commission, he was compulsorily retired; is concerned, it has no way. If this Commission had no jurisdiction, the respondent should have challenged the grievance petition and should have brought to the notice of the Sr. Member about the serious charges of corruption and embezzlement against the petitioner. The respondent was under no obligation to comply with an order and it was as a maximum a suggestion from the learned Member to retire him in view of his application. If the order of the learned Member was to be complied with the petitioner should have been retired w.e.f, 29-6-2002 in time as requested by him. Instead, disciplinary proceedings were initiated against him. This also indicates that in view of the prolonged litigation between the petitioner and the respondent, he was being victimized otherwise, had there been any substance in the allegations, the Department would have concluded the proceedings. On the other hand the Department withdrew the allegations against the petitioner, he was reinstated in service and the period of his suspension was treated on duty. In spite of that the petitioner was not retired according to his request either initial or modified. The action of the respondent Authorities in retirement of the petitioner according to their choice was therefore unwarranted by rules and regulations on the subject.
9. So far as the jurisdiction of this Commission is concerned, there is a prolonged history of litigation between the petitioner and the respondent and the matter went up to the High Court for more than once and it was decided by the High Court in one Writ Petition No,1260 of 1982 vide order dated 30- 11-1982 that the N.I.R.C. Had the jurisdiction to decide the matter pending before it. In another Writ Petition No,129 of 1983 the High Court directed the N.I.R.C. To decide the point of jurisdiction. Had there been no jurisdiction vested in the Commission, such directions could not have been given.
With regard to use for unfair labour practice, the application dated 17-1-2003 submitted by the petitioner regarding modification in his date of retirement would reveal that the petitioner told the respondent that he had fulfilled his commitment and had withdrawn his case from the N.I.R.C.
Lahore on 19-12-2002 and even then his case had not yet been decided due to which his pensionary benefits were decreased day by day. It indicates that due to the prolonged litigation between the two he was being victimized. Instead of accepting his application for his premature retirement w.e.f, 29-6-2002, he was being put to suspension and statement of allegations was being served and when he was asked to withdraw the cases from N.I.R.C. The said suspension and charge of corruption were withdrawn. In this view the Commission has the jurisdiction to adjudicate upon the matter.
10. The upshot of the above discussion is that the petitioner was entitled to his premature retirement w.e.f, 30-6-2003 instead of 29-6-2002 and his premature voluntarily retirement w.e.f, 8- 3-2003 given by the impugned order is unlawful and unwarranted by any rules and regulations being mala fide on account of unfair labour practice due to the petitioner's trade union activities and the same is therefore, liable to be set aside and therefore I . The petitioner shall be considered having been premature retired w.e.f, 30-6-2003. So far as the question of waiving off the claim of Rs,38970/- the petitioner's contention cannot be accepted as correct because it will have to be seenwhether the G.M was competent to waive off the said amount and if so was it actually waived off or whether it was refused as averred by the respondent. For this purpose the petitioner may move the concerned Department and the latter is directed to dispose of this issue. . File be consigned to the record.