' NAZAR MUHAMMAD SHAIKH (MEMBER).---Appellant has been aggrieved by the Respondent's order dated 7-5-1999 whereby his services have been terminated as per provisions of Standing Order 12(1) and (3) of West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 as amended. Appellant filed Departmental Appeal on 28-2-2000 wherein he stated that he was remanded on judicial custody which was also dismissed by the Court and requested for reinstatement. This appeal was, however, rejected by the Respondent vide order dated 17-5-2000 which was allegedly received by the Appellant on or about 20-5-2000.
2. Brief facts of the case are that the Appellant was employed as labourer for last twenty (20) years in the Respondent-Organization. He claims to have unblemished service record. Appellant was, however, involved in criminal proceedings from which he was acquitted vide judgment of the Additional Sessions Judge, Thatta dated 31-12-1999 and 21-4-2000 in Session Case Nos.42/98 and 43/98. Appellant had been arrested on 2-2-1998 and remained in judicial custody upto 19-2-2000.
Appellant claims to have informed the Respondent about his being under judicial custody.
3. Learned Counsel for the Appellant arguing the appeal stated that the impugned order dated 7- 5-1999 was bad in law and in violation of statutory rules guaranteed under the provisions of clauses 12 and 15 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
He further contended that the Appellant has been condemned unheard and without opportunity of personal hearing which was in violation of principle of natural justice and in terms of provisions of the said Ordinance. He further contended that the Appellant was obliged to remain absent on account of his confinement in police/judicial custody and, as such, his absence was not on Appellant's own accord. He also further argued that the order of termination from service was issued by incompetent authority. He also stated that the Appellant has been discriminated against as in similar cases employees having much longer absence were granted leave. In support of his contentions, learned Counsel for the Appellant relied on the ruling of Hon'ble Supreme Court in the case of Pakistan Cycle Industrial Co-operative Society Ltd., v. Muhammad Sarwar Butt and two others reported in 1982 SCMR 950 and PLD 1978 Karachi 35 in case of Gul Ahmed Textile Mills Ltd., v.
Presiding Officer, Sindh Labour Court No, IV and another. He also cited the decision of the Sindh Labour Appellate Tribunal dated 13-4-1995 in Appeal No, KAR-258 of 1994 wherein it was held as under:--
7. The termination order of the respondent, while in London Jail three days after his arrest, without any show-cause notice, charge sheet or enquiry would, therefore, be bad in law and Standing Order 12(1) of the W.P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, is clearly not applicable in his case. The Order of the Labour Court is, accordingly, maintained and the appeal of the P.I.A. Corporation is dismissed."
4. Learned Counsel for the Appellant further stated that the Appellant could not report for duty because of his being in custody. He also argued that the Respondent did not hold any regular inquiry which is mandated in event of major penalty and in this regard, he placed reliance on the ruling of Hon'ble Supreme Court reported in 1992 SCMR 950.
5. Learned Counsel for the Respondent opposed the appeal and stated that the Appellant was initially granted leave for two (2) months but he did not report for duty and Organization waited for fifteen (15) months. He stated that the termination simplicitor was possible under the Standing Order No, 12(1) and (3) of the 1968 Ordinance and, as such, Appellant has no claim or right to file this appeal and claim reinstatement. He further raised another legal objection that the Appellant's appeal is badly hit by the provisions of Limitation Act. He also added that the Appellant was employed as a labourer i,e, workman, therefore, he was governed by Labour Laws. He stated that in the Respondent's establishment there was no service rules in respect of workmen category and, as such, Appellant should have approached the FST directly after his services were terminated vide order dated 7-5-1999. Appellant, however, came to this Tribunal through this appeal on 9-6-2000 which makes the appeal time barred by about one year. He further elaborated that Appellant even did not file Departmental Appeal within a period of 30 days as stipulated in section 4 of the Service Tribunals Act, 1973 and his Departmental Appeal is dated 28-2-2000 which has been submitted belated after eight (8) months. He also pointed out that the reply of the Respondent dated 17-5- 2000 given to the Appellant will not extend the period of limitation. He further pointed out that the Appellant's claim for reinstatement is misconceived as relationship between the Respondent and its employees in absence of statutory rules was that of master and servant and in case of wrongful termination an employee can claim damages and not reinstatement in the light of different rulings of the, Hon'ble Supreme Court.
6. Learned Counsel for the Respondent also denied that the Appellant's service with the Respondent-Organization was unblemished. He also stated that acquittal would not enable the Appellant to be reinstated and in this regard relied upon ruling of the Hon'ble Supreme Court reported in 2003 PLC (CS)
167. In support of his contentions, respondent's learned Counsel relied on the rulings reported in 1994 PLC (C.S.) 765, 1996 SCMR 273, 2002 PLC (C.S.) 526, 1998 PLC (C.S.) 800, PLD 1990 SC 951, 1994 PLC (C.S.) 755 and NLR 1995 TD (Labour) 172.
7. In rebuttal, the learned Counsel for the Appellant stated that order passed by the Respondent for terminating the Appellant's service was not approved by the Competent Authority.
8. We have carefully considered the arguments of the learned Counsel from both sides and also examined the record and perused the citations.
9. We will first address the issue of limitation raised by the learned Counsel for the Respondent. The facts indicate that the Appellant was involved in a murder case and arrested on 2-2-1998 and he remained confined in jail upto 19-2-2000 when he was released on bail. He was also subsequently acquitted from the criminal charges vide judgment dated 21-4-2000. .Appellant did sent intimation about his arrest to the Respondent-Organization. Appellant had been originally sanctioned leave for two months during which his arrest took place. Respondent who had sanctioned him two months leave waited for fifteen months, before terminating his services vide order dated 17-5-1999 which was served upon the Appellant in jail. Appellant filed Departmental Appeal against his termination on 28-2-2000 which is after nine months and eleven days whereas he should have filed departmental representation within 30 days of the impugned order. Appellant's Departmental Appeal was rejected vide Respondent's order dated 17-5-2000 which is, inter alia, reproduced as under:- Pakistan Steel (Quarries Department)
Administration No, QD/Admn/PF/44/JDP/2000/1560 Dated: 17th May, 2004.
Mr. Ahmed Barch, S/o Kasoo Barch, Village Khamisoo Shoro, P.O.Jhimpir, District, Thatta (Sindh)
Subject:- Appeal for the restoration of service in Pakistan Steel.
' With reference to his application dated 28-2-2000, Mr. Ahmed Barch is informed that his appeal for reinstatement in service was considered by the competent authority, but could not be accepted to.
(Sd.) Aleem Baig Ghazi Incharge (Quarries)
' Thereafter Appellant approached this Tribunal on 9-6-2000 i,e, after 22 days of the appellate order.
10. The moot point is whether the limitation would run from the date of the issue of impugned order i,e, 17-5-1999 which, as stated above, was served upon the Appellant in jail or whether it will begin from the date of appellate order i,e, 17-5-2000. As stated above, respondent contends that since departmental file was belatedly, the appellate order will not extend the limitation period. Appellant has filed his appeal for condonation of delay which occurred due to his confinement in jail. Both sides have cited ruling in support of their contention in this regard. Respondent has relied on the ruling of the Hon'ble Supreme Court in the Muhammad Arshad Saeed, DIG Police v. Government of Pakistan (1994 PLC(CS) 755) wherein their Lordships ruled as under:-- "(d) Service Tribunals Act (LXX of 1973)
S.4-Constitution of Pakistan (1973), Art. 212-Dismissal of appeal by Service Tribunal---Validity-- Service Tribunal was in error in holding that policy letter of Government of specified date did not amount to an order or a departmental order or a final order. An order for purposes of Service Tribunal Act, 1973 can have many forms; it may be a general order or a particular order directed against any individual civil servant or such order may be a policy decision-Such order may be a decision of a particular grievance of an order refusing to redress a grievance--All such orders, if they affect terms and conditions of service of civil servants would qualify as departmental orders ex facie issued by the Authority within the department empowered to do so--Such orders would thus, be amenable to appellate jurisdiction of Service Tribunal."
' Respondents also relied on the ruling of the Apex Court in the case of Dr. Anwar Ali Sahto and others v. S.S.G.C. (2002 PLC(CS) 526) wherein their Lordships ruled that the "Service Tribunal should press into service question of limitation strictly as has been held in Fazal Siddiqui v. Pakistan through Secretary, Establishment Division (PLD 1990 SC 692)." Their Lordships also further observed in Dr. Sahto's case as under:- "A close scrutiny of the above-referred cases indicates that none of it advances the Appellant's case, on the contrary, the case referred to at serial numbers (i) to (iv) hereinabove are in line with the consistent view of this Court that in service appeals, the Tribunal should press into service question of limitation. Leaves to appeal were granted in the aforementioned cases to consider the question, whether the Tribunal was justified in not dismissing the service appeals on the ground of limitation. The case mentioned above at serial number (v) had no relevancy with the controversy in issue. In the aforesaid case, this Court instead of dismissing a petition for leave simpliciter on the ground of limitation also dismissed the same on merits. It does not lay down as a proposition of law that a Court is bound to examine a case on merits, though the case may be patently barred by limitation under the relevant law. In any case, it is a matter of discretion for the Court concerned.
The factum that in the instant case the Tribunal has dismissed the Appellant's appeal on the ground of limitation without touching upon the merits of the case, does not render the order under appeal legally infirm, as to warrant interference by this Court."
' Respondent also cited the ruling of the Hon'ble Supreme Court in the case of Abdul Wahid v.
Chairman, C.R.R. And others (sic) wherein it was ruled as under:,-- "However, now it is well-settled that if original representation was barred by time and aggrieved employee does not disclose sufficient causes for such delay or inability to move departmental authority within prescribed period then no subsequent order or disposal of such incompetent representation/appeal/review could create fresh cause of action or automatically operate to condone delay of limitation in available the remedy under section 4 of the Service Tribunals Act. For authority reference can be conveniently made to observations in judgments reported as (i) 1990 SCMR 1440, (ii) 1992 SCMR 1136 and (iii) PLD 1977 SC 397)."
' The ruling of the Hon'ble Supreme Court in the case of Chairman, PIAC v. Nasim Malik (PLD 1990 SC 951) was also cited by the Respondent wherein it has been held as under:-- "S.4-When appeal before the Department was time-barred, the appeal before the Service Tribunal was also incompetent on that account."
11. Appellant on the other hand has mainly concentrated his defence on the illegality of his termination simplicitor. His shield against limitation is application for condonation of delay wherein his main ground of delay in appeal is his confinement in jail.
12. Having said so, it would also be relevant to examine this issue with reference to section 4(1) of the Service Tribunals Act, 1973 which reads as under:-- "4. Appeal to Tribunals.---(1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, or within six months of the establishment of the appropriate Tribunal whichever is later, prefer an appeal to the Tribunal."
' The import of this section is that an aggrieved civil servant can come to the Tribunal within 120 days from the date of the Departmental Appeal or within thirty (30) days of the appellate order. In the instant case Appellant has filed this appeal before this Tribunal, 22 days after the appellate order was passed on 17-5-2000. Appellant's departmental appeal was rejected on merit and the ground of limitation was not raised in the said appellate order. Appellant filed appeal before the FST within thirty days of the appellate order which is strictly within the four corners of section 4(1) of the Service Tribunals Act, 1973. We feel that instant appeal is not hit by limitation and in this regard we are strengthened in our view by the rulings of the Hon'ble Supreme Court reported in 1995 PLC(CS) 803 and 1999 PLC(CS) 1458. In these rulings a principal was laid down that if the departmental appeal has been rejected on merit and not on limitation FST has to decide the appeal on merit and cannot reject it as time-barred. Hence the Respondent's objection with regards to limitation is misplaced and not sustainable.
13. Adverting to the merits of the case, the record, indicates that the services of the Appellant who had been arrested on 2-2-1998 was served with a show-cause notice in jail on 13-7-1998 to which he responded in writing on 29-7-1998 through jail authorities wherein he requested for extraordinary leave for 365 days. Respondent did not accede to the Appellant's request for leave vide their letter dated 19-8-1998 and sanctioned two months' leave to enable him to secure bail failing which his service would be terminated. Respondent did not take any action after the expiry of the two months and finally terminated his services on 7-5-1999 i,e, one year, three months and five days after the Appellant's arrest on 2-2-1998. Appellant was arrested in connection with a murder case and it was uncertain as to the ultimate outcome of the criminal proceedings against the Appellant. Respondents waited for his release for fifteen months and five days which is reasonable time as they could not wait for the Appellant indefinitely. Appellant was released on 19- 2-2000 i,e, nine months and two days after the original appellate order dated 17-5-1999.
Respondents then terminated his services on the principle of termination simplicitor which action was strictly in accordance with a relevant labour laws i,e, Standing Order No,12(1) of West Pakistan Industrial and Commercial (Standing Orders) Ordinance (VI of 1968) which reads as under:-- "12 Termination of employment.---(1)For terminating employment of a permanent workman, one month's notice in writing shall be given either by the employer or the workman. One month's wages calculated on the basis of average of wages earned by the workman during the last three months shall be paid in lieu of not We feel that the Appellant's services were legally terminated. In this regard we place reliance on the rulings reported in 1991 PLC (CS) 508 and 1987 PLC 210 besides the rulings cited by the Respondents' learned counsel. The rulings cited by the Appellant's learned Counsel are distinguishable from the present case."
14. In view of the above facts, we do not find any valid reason to interfere with the impugned orders dated 7-5-1999 and 17-5-1999. The appeal being without merit is dismissed with no orders as to cost. Before we depart, we leave it to the magnanimity of the Respondents to reinstate the Appellant keeping in view his twenty years' service if they so desire. Legally Appellant's termination is, however, absolutely unexceptionable and valid.
15. Parties be informed accordingly.