' ABDUL HAFEEZ CHEEMA (CHAIRMAN).- This appeal is directed against the order dated 14-3-2008 passed by the learned Presiding Officer, Punjab Labour Court No,1, Lahore whereby the grievance petition filed by the appellant was dismissed as patently barred by time and so also under the principle of res judicata.
2. The facts of the case briefly are that the appellant was employed as Cashier with the respondent bank in the year 1974. As claimed by him the duties performed by him were manual in nature as such under the provisions of Standing Orders Ordinance, 1968 he was entitled to invoke the jurisdiction of the Labour Court. It was added that being member of the Staff Union of the Bank his union activities were never liked by the bank and as a measure of victimization he was charge sheeted in the year 1987 and subsequently was verbally removed from service without any show cause notice, enquiry or personal hearing in an arbitrary manner. An F.I.R. Was also lodged against him under sections 409 and 420, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947. The accusation against him was that he misappropriated an amount of Rs,19,492 entrusted to him by the consumer of Sui Gas Bill. The appellant submitted an appeal against his removal order through Finance Minister but no action was taken by the bank. He continued to ramble here and there and consequently filed departmental appeal before the bank in the year 1993. Again no reply was given to him. After acquittal from the criminal charge in the year 1997 he requested the bank for reinstatement but to no avail. Thereafter the appellant filed another departmental appeal on 30-3-1998 but again the appeal was not responded to. At last he filed an appeal before the FST in the year 1998 which according to him stood abated in pursuance of the decision of Mubeen us Salam's case where after he approached the labour 'court by filing a grievance petition. During the interregnum he remained jobless. He has therefore prayed for reinstatement with back benefits.
3. The bank put up rigorous contest on the grounds inter alia that the appeal was hopelessly barred by time; that no grievance notice was served and such a false, frivolous and vexatious petition may be dismissed with exemplary costs. On merits it was claimed that the dismissal order dated 26-9-1987 was duly served on the appellant. He was proceeded against perfectly in accordance with law and proper enquiry was held which entailed in his dismissal on account of embezzlement and absence from duty without permission.
4. The learned Labour Court after hearing arguments of the learned counsel for the parties dismissed the grievance petition with the following remarks:-- "Copy of judgement of FST dated 17-1-2001 given in appellant's Appeal No,907(L)/98 is in the file, a perusal of which makes it clear that it was not disposed of having abated, but was dismissed on merits as well as on limitation. It is, therefore, not correct on the part of petitioner to say that on abatement of his appeal from FST he has approached this forum. Moreover, the judgment by FST was announced much prior to the pronouncement of judgment of Hon'ble Supreme Court in Muhammad Mubeen us Salam's case PLD 2006 SC 602 and thus was a past and closed transaction.
' Present petition has been filed on 21-9-2006 i,e, after nineteen years of passing of the impugned order, which is patently barred by time on the face of it. Additionally, the petitioner once having availed his remedy at the relevant forum according to law is debarred to again agitate the same matter at another forum.
' For the above, the petition is hereby dismissed."
5. It appears essential to quote hear the operative part of the judgment of the FST in order to understand and appreciate that what can be the possible consequences of the order of the FST.
After hearing the parties the FST dismissed the appeal filed by the appellant in the following terms:- "We are satisfied that the appellant has been dealt with in accordance with law and procedure and the appeal in this Tribunal is not within the prescribed period either under section 6 of the Service Tribunals Act or under section 14 of the Limitation Act. We will, therefore, dismiss this appeal on merits and as well on limitation with no order as to costs."
' After the aforesaid concluding paragraph, the learned FST made the following observations:-- "7. Before parting with this appeal we will record that we have heard the appellant in person and the case of appellant has been 'discussed with the learned counsel appearing in this appeal in view of the Labour Laws and the laws applicable to the workman and civil servant in respect of terms and conditions of service. We do find that there is an element of trade unionism which was an irritant but as we have disposed of this appeal on the above mentioned reasons, therefore, we will not dilate further in this case but will observe that the appellant has rendered 13 years of service, is entitled to gratuity as provided under Standing Order 12(6) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968."
6. Arguments have been heard. Record perused.
7. This order was announced by the FST on 17-1-2001. The appellant remained silent after this judgment and filed a grievance petition in the Labour Court on 23-9-2006 after 19 years of his dismissal/removal from service.
8. It is however noteworthy that this remark-an orbiter dictum was later challenged by the respondent bank before the Hon'ble Supreme Court through CPLA which was converted into C.A.
No,1815 of 2001 and later abated. It is submitted by the learned counsel for the appellant that in view of the abatement of the C.A. No, 1815 of 2001 the entire matter shall be deemed to have been abated. As such the appellant was entitled to invoke the jurisdiction of the learned Labour Court within a period of 90 days as allowed by the Hon'ble Supreme Court Mubeen us Salam case (PLD 2006 SC 602). He has, therefore, rightly approached the. Labour Court in time and the order of the learned Labour Court was without lawful authority.
9. Conversely it is claimed by the learned counsel for the respondents that the CPLA was filed by the respondent bank questioning the validity of the obiter dictum which has abated vide C.A.
No,1815 of 2001 at serial No,380 of the list of cases in Mubeen us Salam's case. Therefore, this abatement shall have no effect on the main judgment dismissed by the FST on merits as well as on limitation on 17-1-2001 which was never challenged by the appellant and as such had attained finality.
10. If one reads carefully the operative part of the judgment which indeed is an executable part. The question here is that whether subsequent remarks are equally executable or merely an orbiter.
Obiter dictum has been defined by the Oxford Dictionary " Judges expression of opinion uttered in arguing a point or giving a judgment but not essential to his decision and therefore, without binding authority -- incidental --- by way of dictum things said". Black's Law Dictionary defines the expression as under:-- "Obiter: By the way; in passing incidentally; collaterally.
' Obiter dictum : words of an opinion entirely unnecessary for the decision of the case. Noeil v. Olds, 78 U.S.App.D.C.155, 138 F.2d 581, 586. A remark made, or opinion expressed, by a judge in his decision upon a cause, "by the way" that is, incidentally or collaterally, and not directly upon the question before him, or upon a point not necessarily involved in the determination of the cause, or introduced by way of illustration or analogy or argument. Such are not binding as precedent."
11. Now after reading the judgment of the FST it clearly appears that out of compassion and mercy the FST have indeed expressed their wish although they have used the word 'entitled' for gratuity nevertheless it would remain a desire on their part. Neither the gratuity was an issue before the FST nor was it ever agitated before the court by Muhammad Yousaf. In the final and conclusive part of the judgment the FST had indeed dismissed the claim of the appellant in totality i,e, on merits as well as on limitation. So, therefore, it is more than clear that this matter had not been agitated by Muhammad Yousaf before the Supreme Court in any manner. His silence for five years does not entitle him to any relief from the Labour Court.
12. I, therefore, find no reason to differ with the findings of the learned Labour Court that the grievance petition before the court was grossly time-barred. Finding no merit in the appeal the same is dismissed leaving the parties to bear their own costs.