' ASAD MUNIR (CHAIRMAN).:-- This appeal calls into question the legality of Punjab Labour Court No,6, Rawalpindi's judgment dated 21-6-2010, whereby the respondent's grievance petition has been accepted to the extent that the respondent has been re-instated in service without any back benefits.
2. Facts relevant to resolve the present controversy are that the respondent, Masood Ahmad, who joined the Telephone and Telegraph Department (now PTCL) on 16-1-1982 as a Lineman, was proceeded against under section 3(1)(b) of the Removal from Service (Special Powers) Ordinance, 2000 ("the RSO, 2000"),,when he was issued a show cause notice dated 6-10-2007 for remaining absent from duty from 26-5-2007 till 6-10-2007. Reply to the show cause notice is not on record but other documents show that the respondent gave the explanation that he suffered from sciatica during the period in question. On or around the same time, PTCL introduced a Voluntary Separation Scheme ("VSS") for its employees and invited its employees to opt for the VSS. Respondent along with other employees applied and opted for the VSS. PTCL accepted the option exercised by the 23 employees, including the respondent, through its letter dated 1342-2007 which also declared that they "will stand relieved from their duties on 18-12-2007". However, pursuant to the show cause notice dated 6-10-2007, PTCL proceeded with the disciplinary action against the respondent under the provisions of the RSO, 2000 and dispensing with the inquiry under section 5(4) of the RSO, 2000, by its order dated 31-1-2008 imposed the major penalty of compulsory retirement on the respondent. Aggrieved by his compulsory retirement, the respondent unsuccessfully availed the departmental remedy of review/representation filed under section 9 of the RSO, 2000 as is reflected by appellant No,2's letter dated 14-4-2008. Thereafter, as provided by section 10 of the RSO, 2000, the respondent filed an appeal before the Federal Services Tribunal, Islamabad ("the FST"), 'pleading therein that his absence from duty was due to an ailment and that he could not be compulsorily retired on 31-1-2008 when his option of VSS had already been accepted by PTCL vide its letter dated 13-12-2007. On the other hand, the appellants challenged the jurisdiction of the FST to hear the appeal on the ground that PTCL had been privatized and also disputed the respondent's entitlement to the VSS with the plea that its eligibility clause provided that "an employee undergoing disciplinary action if found guilty in any manner whatsoever shall not be eligible for VSS".
3. Vide its judgment dated 8-12-2009, the FST accepted appellants' objection that it had no jurisdiction to hear the appeal as PTCL had been privatized and its employees were not subject to the RSQ, 2000 in view of the Government of Pakistan's notification dated 12-3-2008, which is reproduced hereunder:- "SR0.280(0/2008--- In exercise of the powers conferred by the proviso to section 12 of the Removal from Service (Special Powers) Ordinance, 2000, (XVII of 2000), the Federal Government is pleased to exempt the employees of Pakistan Telecommunication Company Limited (PTCL) from all the provisions of the aforesaid Ordinance with effect from the date of privatization of PTCL."
4. While dismissing the respondent's appeal through its judgment dated 8-12-2009, the FST observed that the respondent "is free to agitate the matter before the relevant forum". It is on 19-12- 2009 that the said judgment was dispatched to the respondent who appears to have received it on 23-12-2009. Thereafter, the respondent mailed his grievance notice by registered post to the appellants followed by a grievance petition filed on 19-1-2010 under section 41 of the Industrial Relations Act, 2008. Through the grievance petition, filed before the Punjab Labour Court No,6, Rawalpindi, the respondent sought his reinstatement with full back benefits or, in the alternative, the payment of the VSS benefits with mark-up. By its judgment dated 21-6-2010, the learned Labour Court has accepted the grievance petition to the extent that the respondent has been re-instated in service without any back benefits but also without prejudice to PTCL's right to initiate an inquiry against the respondent for his alleged misconduct of absence from duty without leave on the basis of which the respondent was compulsorily retired on 31-1-2008. By means of this appeal, the vires of the learned Labour Court's judgment dated 21-6-2010 have been challenged.
5.
Before proceeding with this appeal on merits, the preliminary issue/objection of its maintainability needs to be addressed as the appeal was not filed within the limitation period but was filed with a delay of 17 days condonation whereof has been sought by the appellant. As stated in the application for condonation of delay, the certified copy of the impugned judgment dated 21-6- 2010, applied for on 28-6-2010, was received by the appellants on 5-7-2010 whereafter it was handed over to the learned counsel for the preparation of the appeal which could not be prepared until 12-8-2010 due to the sudden brain hemorrhage suffered by his wife on 26-6-2010. The application is neither supported by an affidavit of the learned counsel nor by any medical certificate as would show the date and nature of the medical emergency of his wife or the duration for which it lasted. The application appears to have been very casually drafted as at the end of its para 3 the date on which the learned counsel received the certified copy of the impugned judgment from the appellant for preparation of the appeal is not mentioned but is left blank.
' It also appears from the application that the brief was handed over to the learned counsel not before but after his wife suffered the brain hemorrhage. In the circumstances, it is difficult to believe delay can be B explained 'by reference to or attributed to the learned counsel's wife's ailment. As such, I am not inclined to agree that a case for condonation of delay has been made out.
6. On merits, the primary argument of the appellant's learned counsel is that the respondent was compulsorily retired without holding any inquiry in view of the provisions of section 5(4) of the RSO, 2000 but the learned Labour Court has misconstrued the legal effect of Notification dated 12-3- 2008 as the said notification could not be applied retrospectively when, pursuant to the disciplinary action already taken under the RSO, 2000, the respondent had been compulsorily retired for remaining willfully absent for a period of about six months. In support of the proposition that a notification, being subordinate legislation, cannot operate retrospectively, reliance has been placed on Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons Ltd. (PLD 1974 Supreme Court 180), A. Moghni and others v. Registrars Cooperative Societies and others (PLD 1957 Karachi 184), Phassco Hardware Co v. The Government of Pakistan and 3 others (PLD 1989 Karachi 621), Messrs M. Afzal & Sons and 2 others v. Federal Government of Pakistan and another (PLD 1978 Lahore 468) Sydia Uzma Bukhari v. Board of Intermediate and Secondary Education, Faisalabad and others (2001 YLR 2770) and JDW Sugar Mills Ltd. v. Province of Punjab and another (PLD 2005 Lahore 596). It is also contended that the grievance petition as well as the grievance notice are time-barred in the absence of any cause for condoning the delay. Conversely, the learned counsel for the respondent has supported the impugned judgment.
7. It needs to be examined if the notification dated 12-3-2008 cannot be applied retrospectively so as to upset the compulsory retirement of the respondent effected on 31-1-2008, without holding any inquiry, pursuant to the disciplinary proceedings conducted under the RSO, 2000. The said notification, reproduced at the end of para 2 above, was issued by the Federal Government in exercise of its powers under the, proviso to section 12 of the Removal from Service (Special Powers)
Ordinance, 2000, which is reproduced below:--- ",Provided that the Federal Government may, by notification in the official gazette, exempt any class or classes of employees of a Corporation, a corporate body, authority, statutory body or other organization or institution set up, established, owned, managed or controlled by it or a body or organization in which it has a controlling share or interest from the provisions of this Ordinance and such class or classes of employees shall, notwithstanding anything contained in this Ordinance, be proceeded against and dealt with under the laws and rules applicable to such employees before the commencement to this Ordinance."
8. As is evident, the aforesaid notification appears to exempt the employees of Pakistan Telecommunication Company Limited (PTCL) from all the provisions of the RSO, 2000, with retrospective effect on 12-4-2006, the date of the privatization of PTCL, when its management and control was handed over to Etisalat International Pakistan LLC in consideration of its purchase of 26 per cent PTCL shares. Ever since its privatization, PTCL has ceased to be in the control of Government of Pakistan as it is being managed and controlled by its directors majority of whom along with the Chief Executive Officer are nominated/appointed by Etisalat International Pakistan LLC .
9. As it name indicates, the RSO, 2000 gave special powers to the authorities as would facilitate them to proceed and take disciplinary action against their employees who were either in government service or in the corporation service. An unpopular provision, namely, section 5(4) of the RSO, 2000, allowed the imposition of major penalty on the said employees for misconduct without holding any inquiry. The respondent too was proceeded against under the RSO, 2000 and handed down the penalty of compulsory retirement for absence from duty without holding any inquiry which was dispensed with under section 5(4) of the RSO, 2000. It is questionable if the respondent could be proceeded against under the RSO, 2000 as after the privatization of PTCL on 12-4-2006, he ceased to be a "person in corporation service" as defined by section 2(c) of the RSO, 2000. However, it seems that there was some confusion as to whether the provisions of the RSO, 2000 would apply to the PTCL employees including the respondent. The confusion was removed by the exemption notification whereby it was declared that the RSO, 2000 did not apply to PTCL with effect from the date of its privatization i,e,12-4-2006. Such a declaration is consistent with and not in conflict with the definition of "person in corporation service", given in section 2(c) of the RSO, 2000. As such, the exemption notification was merely clarificatory or explanatory which re-affirmed that RSO, 2000 was not applicable to a privatized entity like PTCL as its employees were not "persons in corporation service".
10. Even if the notification in question is assumed to be retrospective in effect, it cannot be assailed considering that its object is to benefit the PTCL employees and save them from the harshness of the RSO, 2000 by providing them security of service or service safe-guards absent in the RSO, 2000: In this perspective, the case-law cited by the learned counsel for the appellants is not relevant and cannot be made applicable to the facts of this case. However, it would be relevant to refer to Anoud Power Generation Ltd. And others v. Federation of Pakistan (PLD 2001 SC 340) wherein it was observed by the Honourable Supreme Court that "If the notification has been used for the benefit of the subject then it can be made operative retrospectively but if its operation to the disadvantage of a party who is the subject of the notification then it would operate prospectively." Again, according to Ellahi Cotton Mills and others v. Federation of Pakistan (PLD 1997 SC 582), "An executive order/notification, . Which is detrimental or prejudicial to the interest of a person, cannot operate retrospectively. However, a beneficial executive order/ notification issued by an executive functionary can be given retrospectively effect". Reference may also made to Army Welfare Sugar Mills Ltd. v. Federation (1992 SCMR 1652) wherein it was held that "It seems to be well-settled proposition of law that a notification which purports to impair an existing or vested right or imposes a new liability or obligation, cannot operate retrospectively in the absence of legal sanction, but, the converse i,e, a notification which confers benefit cannot operate retrospectively, does not seem to be correct proposition of law".
11. Upon a closer scrutiny, the acceptance of the argument that the notification dated 12-3-2008 is not retrospective would mean that RSO, 2000 remained applicable to PTCL employees prior to or till the date of publication of the notification i,e, 12-3-2008. If this were so, the FST would have retained the jurisdiction to hear the respondent's appeal as he was compulsorily retired on 31-1-2008 at a time when, according to PTCL, RSO, 2000 was applicable to PTCL. However, this runs counter to PTCL's stand before the FST where it pleaded that .The FST had no jurisdiction as PTCL had been privatized and also took advantage of the retrospective effect of the notification dated 12-3-2008 on the basis of which the FST held that it had no jurisdiction and directed the respondent to present his grievance before the proper forum. Thus, the FST refused to exercise jurisdiction in the matter on account of the clear position that the notification was retrospective in effect and not otherwise.
However, PTCL is now trying to confuse the issue by pleading to the contrary and virtually asking the respondent to go back to the FST. Such a volte face cannot be countenanced. In any case, in view of the pronouncements of the honourable Supreme Court in several cases including Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi (2010 SCMR 1484), it is clear that the FST has no jurisdiction to hear the appeal filed under section 10 of the RSO, 2000 by the aggrieved employees of a non-statutory corporation or company who are C neither civil servants nor are governed by any statutory rules of service.
Admittedly, the employees of PTCL are not civil servants nor are they governed by any statutory rules of service. In this view of matter, the respondent, being a workman, cannot be left without a remedy and his recourse to the Labour Court by means of a grievance petition cannot be taken exception to.
12. There is also no merit in the argument that the respondent's grievance notice or the grievance petition filed by him was time-barred. This is so because the remedy of appeal, under section 10 of the RSO, 2000, filed before the Federal Services Tribunal was availed and pursued bona fide by the respondent wherefor the time spent in pursuing the remedy of appeal has to be ignored considering the peculiar circumstances of the case.
13. Before concluding, it may also be observed that the impugned judgment cannot be questioned but has to be affirmed for being a fair and balanced decision as neither does it disallow the appellant from proceeding against the respondent by initiating an inquiry into his alleged misconduct of absence from duty nor does it reinstate the respondent with back benefits. Needless to state that PTCL, should have no ithjection to initiate an inquiry into the alleged misconduct as the compulsory retirement of the respondent cannot be sustained for having een awarded, admittedly, without holding any inquiry.
14. In view of the foregoing discussion, this appeal is not only time-barred but is also devoid of any merit. Resultantly, it is dismissed leaving the parties to bear their own order.