'ABDUL GHIAS NOUSHERWANI (MEMBER).--- The appellants assailed the judgment dated 30/4/2013 passed by Learned District and Sessions Judge Presiding Officer 1st Labour Court Balochistan in Case No,41 of 2012 wherein the grievance application under section 41, BIRA, 2010 filed by respondent/appellant was allowed.
2. For' disposal of appeal brief facts according to the respondent/applicant mentioned in his petition are that petitioner was working as Assistant Engineer in Pakistan Telecommunication Company Limited (PTCL) posted at Turbat. On 25-6-2005 due to illness was unable to attend his office. It is further stated that in the same month he was involved in a case by the NAB authorities and due to apprehension of his arrest he remained absent from duty. Thereafter the concerned authority stopped his salary on 18-7-2005. In due course he was arrested by NAB authorities and he was suspended by the department. It is further stated that through notification dated 13-12-2006 he was terminated and such notification was received by the petitioner on 26-12-2006. Lastly the petitioner prayed that he is entitled for a salary during the period of suspension i,e, 26-6-2005 to 12-12-2006.
3. After filing of written statements the Learned Labour Judge framed six issues for disposal of the matter but after examination of documents/material and hearing the learned counsel for the parties the Learned Labour Judge allowed the petition in the following terms:-- "Keeping in view the all discussion and without going into further detail, I, in the interest of justice, do considered the case without the each and every issue as that the petitioner-applicant is entitled for the relief claimed for. The respondents are directed to release the salary of the applicant-petitioner for the period of his suspension i,e, 25-6-2005 to 12-12-2006 without any delay.
All the issues stand disposed off accordingly and petition is accepted only to the extent for the payment/release of salary of the petitioner-applicant only for the period of his suspension i,e, 25- 6-2005 to 12-12-2006"
4. The learned counsel for appellant contended that the petition under section 41 of BIRA, 2010 was hopelessly time-barred for the reason that he remained absent from 2005 till 31-7-2012. Next contended that he was suspended but later on the recommendation of enquiry committee he was terminated therefore the suspension order merged in termination order but the petitioner/respondent did not challenge the termination order. The learned counsel for respondent contended that the petitioner/respondent firstly became medically unfit to perform his duty and in this regard he submitted medical certificate. Secondly the petitioner was involved in a case by NAB authority and thirdly he was arrested in that case and remained under bar till he was terminated.
Next contended that according to the rules and regulations the respondent/petitioner is entitled for his full salary during the .period of suspension.
5. The available record reveals that the petitioner/respondent was appointed on 15-12-1984. On 26- 6-2005 he was suspended and on 13-12-2006 he was terminated. Record further reveals that on 18- 7-2005 his pay was stopped. On 22-11-2006 show-cause notice was issued with regard to absence from his duty from 5-8-2005. Record further revealed that he was arrested by NAB authority on 29- 1-2010.
6. However after serving the grievance notice approached the Learned Labour Court on 7-9-2012. In the light of submission made by the learned counsel for the parties and available record the only question for, determination is that whether the respondent/petitioner is entitled for receiving the salary during the period of his suspension or otherwise?
7. The learned counsel for respondent objected on the maintainability of appeal on the ground that appeal filed after prescribed time i,e, one month. From perusal of available record the impugned judgment was announced on 30-4-2013, appellant filed application for obtaining certified copy on 6-5-2013 which was prepared on the same day but received the certified copy on 7-6-2013. The appeal in question was filed on 10-6-2013. In this respect the appellant submitted an application under section 5 of The Limitation Act for condonation of delay on the ground that the concerned assistant of the legal branch went on retirement (VSS) and the employee who taken the charge was not aware about the passing of the impugned order. On the last working day the said employee visited the court in connection with the other cases and got information about the passing of impugned judgment as such he immediately applied for issuance of copy which was provided to him. After approaching the legal adviser filed instant appeal without any further loss of time.
8. Admittedly under law and in the light of dictum laid down by the Superior Courts limitation for the government is applicable as.like to the general public. If the contention of appellant believed that the concerned assistant/clerk was retired and the newly posted employee was not aware even then it is not understandable that on 6-5-2013 applied for certified copies which was prepared on the same day but received the certified copy on 7-6-2013 and such period neither explained in application under Section 5 of Limitation Act nor during the course of arguments.
9. In this regard the learned counsel for appellant stated that the Superior Courts always encouraged the matter decided on merit rather the litigants being non-suited on technical grounds including limitation. In application under section 5 of Limitation Act no reasonable ground mentioned to cover the period of applying for obtaining certified copy on 6-5-2013 which was prepared on the same day but he received the same on 7-6-2013 after about one month of preparation of certified copies. Whereas in application under section 5 of Limitation Act it is stated that when the concerned employee received information about passing of impugned judgment he immediately applied for issuance of copy but it is not clear that how he received the same after one month i,e, 7-6-2013. Therefore the application under Section 5 of Limitation Act is dismissed.
Even then natural justice requires that the full case be examined on factual as well as on legal ground.
10. The main objection of the learned counsel for appellants was that the petition under section. 41 of BIRA, 2010 is time barred. The order for stoppage of his pay dated 18-7-2005 indicates that the petitioner/ respondent was absent after submission of a medical certificate from DHO Turbat but without prior sanction of leave w,e,f, 25-6-2005. On this the counsel for appellant was directed to produce such medical certificate but failed after getting adjournments and stated that the same is not available in the office. According to above mentioned letter the petitioner/respondent submitted medical certificate and the same was not produced by the appellant being the custodian of record. From such act of appellant for not producing the medical certificate it is presume that such medical certificate was favorable to the respondent/petitioner. So for the criminal case of NAB is concerned it is not denied by the appellant and similarly his arrest/detention was also admitted. Therefore this objection is not sustainable under the law.
11. The main and second objection of the learned counsel for appellant that the suspension order dated 26-6-2005 merged in final order of termination dated 13-12-2006. In this regard the learned counsel has not referred any provision of law nor any citation of Superior Courts. The petitioner/respondent in his grievance petition prayed as under:--- "It is, therefore, respectfully prayed that keeping in view the above submission, the respondents may kindly be directed to release the salaries of applicant/petitioner for the period of his suspension i,e, from 26-6-2005 to 12-12-2006, for which he is entitled as per law, in the interest of justice, fair play and equity."
' Admittedly during the suspension from 26-6-2005 till his termination i,e, 13-12-2006 the order of suspension was intact for the reason that in such period he was not terminated nor any other disciplinary proceedings had been taken against him. Therefore such objection of learned counsel for appellants has no force for the reason that the petitioner/respondent was in the service of department under suspension. In this regard in a reported judgment in PLD 1994 Supreme Court 72 is very relevant wherein the question of salary during suspension was fully discussed and finally it was held:--- "There was no reason to differentiate between the salary and the benefit he was entitled under the contract of service. Once it was accepted that he was a Government servant, he must be allowed all the benefits he deserved under the contract of service like any other Government servant.
Therefore Rule 53 of the Fundamental Rules and the rule mentioned in SI. No, 106 and all the parallel rules of the Provinces were repugnant to the Injunctions of Islam and laid down in the Holy Qur'an and the Sunnah of the Holy Prophet (P.B.U.H) to the extent that they deprive Government servants of their full salary and other benefits during the period of their suspension. A suspended Government servant should be allowed full amount of his salary and all other benefits and facilities provided to him under the contract of service. Necessary amendment in the rules shall be carried out before 30th of June, 1993, on which date this judgment shall take effect. The rules declared in this judgment as repugnant to the Injunction of Islam shall cease to have effect on 30th June, 1993."
'In the light of discussion here in above and the judgment of honorable Supreme Court of Pakistan the petitioner/respondent. is entitled for his full salary and all other benefits and facilities admissible under the rules during the suspension period. Consequently the impugned order dated 30-4-2013 passed by learned Presiding Officer Labour Court 1st Balochistan Quetta in Case No,41 of 2012 is upheld and appeal is dismissed having no force with order as to no cost.
12. The copy of order along with original record of trial court be sent to trial court. Case after completion be consigned to record.