' QAZI MUHAMMAD HUSSAIN SIDDIQUI, MEMBER.---The Appellant had been serving the Respondent No.1 Organization since January 1989. While he was on duty on 20-7-1995, he was arrested in a murder case. He was acquitted by the Court on 10-5-2000 in the murder case and on 18-10-2000 in another case under the Arms Ordinance. During the intervening period, he remained in custody.
After his acquittal in the said cases, when he was released from the jail, he approached the Respondents vide his application dated 16-11-2000 for allowing him to join his duty, but he was not allowed to do so vide letter dated 19-1-2001 of the Manager, PIA Planetaria. He then made an application dated 25-1-2001 for fresh appointment, but he received no reply thereof, as such, he served the Respondents with a grievance notice dated 22-2-2001 through his Advocate, which was replied by the Manager, PIA Planetaria vide letter dated 19-3-2001, declining the request of Appellant to allow him to join his duty.
2. Being aggrieved by the refusal of the Respondents to take him on duty, the Appellant filed the appeal before the Tribunal on 7-4-2001 under section 4 of the Service Tribunals Act of 1973, stating that being a workman his services were governed under the Labour Laws and praying to direct the Respondents to reinstate him in service with all back-benefits.
3. In the written comments filed on behalf of the Respondents, it was stated that the appeal was time-barred and it was not maintainable as no right, guaranteed to the Appellant under any law,, had been violated/breached. It was stated that the Respondent No.1 whose employee the Appellant was, had no statutory rules; hence, there was relationship of "Master" and "Servant" between the Respondents and the Appellant, as such, the remedy of the Appellant was to have claimed damages in ease of his wrongful termination from service. Appellant's assertion of being a workman was denied and it was stated that the Appellant had never reported for duty nor submitted any leave application or intimation in respect of his absence, therefore, he ceased to be in the employment of Respondent No. 1.d It was stated that the application dated 25-1-2000 of the Appellant for fresh appointment itself showed that he had accepted the fact that he had ceased to be in the employment of the Respondent No.
1. It was further stated that the Appellant has been holding a sensitive job of Security Guard and his remaining absent for five years and due to his involvement in criminal case under dubious circumstances, he could not have been considered for. The job. The Respondents prayed that in the circumstances and for the reasons, they urged the appeal was liable to be dismissed.
4. We have heard the learned counsel for the parties and perused the record of the case as well as the authorities cited by both sides.
5. The learned Counsel for the Appellant stated that since the Appellant was arrested while he was on duty and that fact was within the knowledge of the Respondents no action could have been taken against the Appellant without show-cause notice having been issued to him. In support of his contention, he cited PLD 2004 SC 384. The Learned Counsel for the Appellant cited another authority of 'Service Tribunal Lahore reported in 1982 PLC (C.S.)
172. The Appellant wherein was arrested in a criminal case and he was dismissed by the competent authority without waiting for the result of judicial verdict. The Appellant in that case was, subsequently, acquitted by the Court. It was held that the competent authority was under obligation to satisfy itself regarding plea raised by the Appellant for holding independent inquiry. It was further held that the verdict of judicial Court was binding on the authority, if no regular inquiry was conducted by such authority.
6. In rebuttal, the Learned Counsel. For the Respondents relied on the averments, made in the written comments, but it was not denied that no show-cause notice was issued to the Appellant and he was simply not allowed to join his duty vide letter dated 19-1-2001 on the ground that it was not possible to allow him to join his duty after an interval of 5 years and also for the reasons that he was not a permanent employee of PIA Planetaria. The learned counsel laid great emphasis on the point of appeal being time-barred and in this respect he cited 1996 SCMR 315, 1992 MLD 1280, 1994 SCMR 1608, 1992 PLC 657; 1994 PLC (C.S.) 755, 1999 PLC (C.8.) 25, 2003 PLC (C.S.) 167 and 2001 SCMR 789=2001 PLC (C.S.) 725.
7. We have carefully considered the above arguments of the learned counsel for the parties. It is not denied that the Respondents did not have the knowledge of arrest of the Appellant on 20-7- 1995, while he was on duty. There is nothing on record to show that during five years' absence of the Appellant the Respondents had taken any action against him. The proper course for the Respondents, if they wanted to take any action against the Appellant was, to have allowed the Appellant to join his duties, as requested by him and then the Respondents should have issued a show-cause notice to him for taking any disciplinary action against him, suspending him from service under section 4 of the Removal from Service (Special Powers) Ordinance, 2000 or even not suspending him. The Respondents should have also decided whether any inquiry into the matter was to be held or not. Admittedly, no such show-cause notice was issued to the Appellant and no formal letter of terminating him from service was issued to him. The authority cited by the learned Counsel for the Appellant and many other authorities of the apex Court make the issuance of show-cause notice mandatory before taking any action against the employee or before terminating the service of an employee for any reason. As such, in our view the action of Respondents against the Appellant was not justified legally. The learned Counsel for the Respondents has not been able to show to us if the absence of five years under the circumstances the Appellant was placed in, was automatically or, ipso facto, sufficient to close the door of employment on him without issuing him a show-cause notice and without hearing him. The Respondents have not pleaded before us if Fundamental Rule 18 would apply to the case of Appellant who was not a Government servant. The plea of Appellant of being a workman may not be available to him as Security Guard does not fall within the definition of "workman" (1989 PLC 32), but then the services of an employee, having a long service of about 11 years, cannot be done away with in a vague manner, as has been done by the Respondents. It is strange that during a period of five years of absence of the Appellant the Respondents remained silent and took no action against the Appellant for the reasons best known to him.
8. On the point of limitation, it may be said that the Respondents have no statutory rules regarding departmental appeal or representation, as such the Appellant could directly approach the Service Tribunals for redressal of his grievance, in receipt of letter ,dated 19-1-2001 of the Respondents, sent to them a legal notice dated 22-2-2001 which was replied vide letter dated 19-3-2001. The Appellant then promptly filed this appeal in time on 7-4-2001. The Appellant, who was a petty employee, had pursuing his remedy. .Diligently; hence we would not like to non-suit him on technical ground. Moreso, for the reason that his service was dispensed with illegally, which was void and "no limitation runs against a void order". We, therefore, condone the delay, if any, in filing this appeal.
9. Lastly the plea of "Master" and "Servant" urged by the learned Counsel for the Respondents has no force as the Appellant was a confirmed employee as per letter dated 1-10-1989 of the General Manager of the Respondent No. 1.
10. In view of what has been said above, we are inclined to remand the case to the Respondents for taking appropriate action in the matter strictly in accordance with law. The appeal is accordingly allowed. The impugned order is set aside and the Respondents are directed to reinstate the Appellant in service. The Appellant will not be entitled to any back-benefits for the period he had not performed his duty. However, back benefits since the date of his reporting for duty and thereafter he remained gainfully employed shall depend upon the result of fresh proceedings against the Appellant which Respondents shall initiate the complete within a period of four months from the date of receipt of a copy of this judgment. No order as to costs.
11. Copies of the judgment be sent to the parties and to the relevant quarters as per rule-21 of the Service Tribunals (Procedure) Rules 1974.