' CH. MUHAMMAD TARIQ, CHAIRMAN.--- These two appeals have been directed against the impugned judgments dated 23-12-2014 by the GEPCO (who hereinafter referred as "appellants") as well as by the employee (who hereinafter referred as respondent). Since both the appeals have arisen out of impugned judgment dated 23.12.2014, therefore, these are hereby decided by this single consolidate judgment.
2. Brief facts of the case are that the respondent has filed this grievance petition under section 33 of PIRA, 2010. It is submitted that respondent was Naib Qasid in GEPCO. The respondent had been performing his duties efficiently and no proper inquiry has been conducted against the respondent. Respondent was working manually therefore, his status was not supervisory in the company. That on the basis of baseless allegations respondent was given show cause notice on 30.10.2004 and he was involved in a criminal case and remained in judicial lock up. Subsequently, respondent was discharged from criminal case. Appellant No,2 without conducting any inquiry imposed major penalty under Removal from Service, 2000. The respondent was A compulsorily retired on 13.11.2004 by SDO of the department and the respondent received the order of his retirement on 10.1.2005. On 12.1.2005 respondent filed an appeal against the said order, then he again filed the petition before the competent authority to dispose of his appeal and the respondent was informed on 9.6.2005 that his appeal has already been dismissed on 3.5.2005. He was informed late then the respondent filed appeal against impugned order. Subsequently, the appeal of the respondent was finally abated by the Federal Service Tribunal vide order dated 5.7.2010. The appellant prayed that the show cause notice dated 30.10.2004 and order of compulsory retirement dated 13.11.2004 be set aside and he be reinstated into service with all back benefits.
3. The matter was contested. Learned Punjab Labour Court No,2, Lahore after framing of issues and recording evidence of both the sides accepted the grievance petition in the following terms:- "For what has been discussed above in the present case, it is clear violation of principle of natural justice that the Irfan Tufail Butt SDO, who is complainant against the petitioner in the FIR also initiated the proceedings under Removal from Service Ordinance, 2000. He issued show cause notice as well as order of major penalty of Removal from Service to the petitioner without lawful authority. From the perusal of order dated 13.11.2004, it is clear that the same SDO did not even bothered to give personal hearing to the petitioner. Therefore, it is proved that .Imposing major penalty of compulsory retirement without holding any regular inquiry against the petitioner to prove his misconduct is without any legal justification. Moreover, no allegation of causing any loss to the department, nor he 'was found guilty, during the police investigation of the criminal case in which he stands discharged on 24.10.2004 (Mark-I). Therefore, merely relying on lodging FIR does not constitute the allegation of misconduct against the petitioner. For what has been discussed above the petition is accepted and petitioner is reinstated into service. As far as the back benefits are concerned the petitioner shall be entitled to half the salary during the period of his compulsory retirement. The order of his compulsory retirement is subject to the return of his pensionary benefits within one month."
4. Hence these appeals.
5. Learned counsel for the appellants/GEPCO, inter alia, contended that the learned Labour Court seriously erred while appraising the facts and law applicable to the title case and by allowing incompetent appeal which caused material prejudice to the appellants. The Trial Court summarily treated the key issue of limitation and wrongly exercised jurisdiction by admitting the appeal to regular hearing. It is settled law that the Court must decide the issue of limitation before embarking upon the merits of case as the issue of limitation being an important issue cannot be ordinarily ignored to cause material prejudice to the party. The Trial Court failed to appreciate that neither Muhammad Mubeen ul Islam's" case (PLD 2006 SC 602) nor the Executive Council AIOU's case (2010 SCM R 1484) condoned the period of an employee who belatedly approached the Federal Service Tribunal in violation of section-4 of the Service Tribunal Act, 1973. The respondent/Bilal Ahmad was awarded major penalty of compulsory retirement from service on 13.11.2004. The respondent was supposed to file representation/departmental appeal within fifteen days of the penalty order.
However, the respondent belatedly filed departmental appeal on 11.1.2005. It is settled that where the departmental appeal is time barred the appeal before the Tribunal is incompetent. Reliance is placed upon 2015 SCM R 165. Executive Council AIOU's case (2010 SCM R 1484) was decided on 13.4.2010 dismissing the petitions in that case. The aforesaid case did not give any time period for the appellants to approach the competent forums unlike Muhammad Mubeen Ul Islam's case (PLD 2006 SC 602). The judicial order of abatement was passed on 5.7.2010. It is evident that the moment the Apex Court passed orders in Executive Council AIOU's case; the appeals of non-civil servants and of those employees, employed in corporations having non-statutory rules, who were proceeded under RSO, 2000, their appeals became incompetent because of being pursued on a wrong forum. Thus the respondent like other aggrieved were required to file condonation application either from 14.4.2010 or at least from the date of passing of the judicial order, herein 5.7.2010; till the date of filing grievance petition. The respondent having not filed an application for condonation of delay, the learned Labour Court had no jurisdiction to condone the delay in filing grievance petition without a written application for condonation. This being so the impugned order passed by the Labour Court was passed illegally unlawfully and in wrongful exercise of jurisdiction and against the precedent law. Reliance is placed upon 2013 M LD 1369, 2006 SCM R 1466, 2006 CLD 258, 2003 SCM R 1334.The respondent having received his communication and other pensionary benefits from the date of his compulsory retirement till December 2014, by his conduct was and is stopped from seeking reinstatement in service as after receipt of pension there existed no relationship of employer and employee between the respondent and the appellants company, thus disentitling the respondent of any relief of reinstatement in service. Reliance is placed upon 2005 PLC 96, 2014 PLC 267, 2013 SCM R 190 and prayed that the impugned judgment is not sustainable in the eye of law therefore, appeal be accepted and impugned judgment be set aside.
6. Conversely, learned counsel for the respondent/Bilal Ahmad, inter alia, contended that the respondent is a poor person and he was remained jobless, un-employed and without any gainful source of income, after his retirement and managed his livelihood on the basis of pensionary benefits. The learned Labour Court erred in imposing the condition of deposited all the pensionary benefits, within one month on the reinstatement of the respondent. This condition is too harsh because the learned Labour Court granted half back benefits to the respondent and after adjustment if any amount is remained, the same will be deducted from the pay in easy installments 2010 TD (Labour) 279.. Hence, the impugned judgment dated 23.12.2014 is liable to be set aside, to the extent of condition for depositing the all pensionary dues, within one month of the reinstatement of the appellant. The judgment is liable to be modified to that extent that after adjustment from half back benefits, if any amount is remained the same may be recovered from the pay in easy installments (i.e. @ 1/3) and prayed that this Labour appeal filed by department may kindly be dismissed. Similarly the impugned judgment dated 23.2.2014 passed in grievance petition No.108 of 2010 by the learned Punjab Labour Court No.7, Gujranwala to the extent of imposing condition for depositing the all expansionary dues, which the respondent had already been received, within one month upon the reinstatement of the respondent be modified that after adjustment from half back benefits, if any amount is remained the same may be recovered from the pay in easy installments (i.e. @ 1/3) and the respondent be reinstatement in service.
7.Arguments heard. Record perused.
8.Learned counsel for the appellant/GEPCO has focused his arguments mainly on two grounds. In the first instant, he has argued that the grievance petition is badly barred by time. The appellant was obliged to submit application for the con donation of delay because without such application, the learned Labour Court cannot condone the delay. He has further submitted that approaching to a wrong forum is not a plausible ground for the con donation of delay. This Tribunal has once again gone through the law laid down by the Honorable Supreme Court of Pakistan reported as PLD 2006 SC 602 and 2010 SCM R 1484 in relation with the condonation of delay and agree with the argument of learned counsel for the appellant that after compulsory retirement of respondent on 13.11.2004, the respondent was supposed to file departmental appeal within fifteen days of the order. In this case, the respondent challenged the order dated 13.11.2004 on 11.1.2005 when he filed departmental appeal which was at the very face of it was badly time barred but respondent never filed application for the condonation of delay.
9.Secondly, learned counsel for the appellant/GEPCO has submitted that the respondent/Bilal Ahmad is no more employee of the appellants because he has received all of his expansionary benefits.
10.On scanning of record, it transpired that the respondent was compulsorily retired on the allegation of theft in the year 2004 and an F.I.R. under section 379, P.P.C. was also registered on 26.10,2004 against the respondent with Police Station Aroop, District Gujranwala. Thereafter the respondent without any coercion voluntarily accepted his compulsorily retirement and on 11.7.2005 received Rs.1,50,152/ on account of his gratuity, on 14.7.2005 Rs.7880/- G.P Fund and on 20.4.2006 his revised amount of G.P Fund. The respondent/Bilal Ahmad has also been receiving regularly the amount of his monthly pension. Thereafter the respondent is stopped by his words and conduct to ask for withdrawal of his compulsory retirement.
11.The respondent/Bilal Ahmad has also filed appeal against GEPCO which is barred by 2 months and 16 days in which he has prayed that the impugned judgment to the extent of imposing condition for depositing all the expansionary dues be set aside. The prayer itself express mala fide intention of respondent/Bilal Ahmad.
12.In view of the above discussion, the appeal No.GA-135/2015 titled Bilal Ahmad v. GEPCO is dismissed on the ground of limitation as well as on merits. While the Appeal No.GA-77/2015 titled GEPCO v. Bilal Ahmad is allowed and the impugned judgment is set aside with this finding that the respondent/Bilal Ahmad is no more employee of the appellant/GEPCO therefore, the very grievance petition was incompetent.