JAWAD HASSAN, J.--- Through this Constitutional Petition, the Petitioner has called in question office order dated 02.08.2016 ("the impugned order"), passed by Respondent No,3 whereby petition submitted by Respondent No,3 was allowed and he was reinstated in service without back benefits of pay and allowances for the intervening period, which was ordered to be treated as Extra Ordinary Leave. The same was ordered to be computed as continuous service for all other purpose.
2. Facts briefly for the disposal of this Constitutional Petition are that the Respondent No,3 was appointed as Telephone Operator on merit and that no formal order of dismissal was passed against him, but as consequence of inquiry conducted by an Inquiry Officer regarding the allegation that his appointment was bogus being obtained on the basis of fake educational certificate and that he did not possess the requisite qualification. Consequently, the Respondent No,1 was served a Show Cause Notice dated 17.05.1996. Subsequently, his salary was stopped and then on 14.06.1996 his services were terminated. Being aggrieved, the Respondent No,1 along with others filed W.Ps. Nos,7870, to 7874 and W.P. No,8463 of 1996, which were dismissed vide order dated 10.03.1999 due to bar contained in provision of Section 2-A of the Service Tribunals Act, 1974 read with Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. The Respondent No,1 along with others also filed W.P. No,11200/2010 assailing their termination order dated 14.06.1996 to the effect that they have not been considered for reinstatement under "Sacked Employees (Reinstatement) Ordinance, 2009" and in this regard they made Representation before the Respondent No,3. As the said Representation was decided, the Respondent No,1 and others preferred W.P. No,14491/2009, which was disposed of vide order dated 17.07.2009 directing the Petitioner Company to decide the matter strictly in accordance with law within one month.
Subsequently, vide order dated 16.01.2010 impugned in W.P. No,11200/2010, the request of the Respondent No,1 and others to be considered under "Sacked Employees (Reinstatement)
Ordinance, 2009" was rejected on the ground that the appointments of the Respondents were found to be bogus. The said Writ Petition No,11200/2010, came up before this Court which was dismissed by holding that "the factum of bogus appointments cannot be gone into by this Court.
This court does not ordinarily interfere in matters involving factual inquiry which requires recording of evidence. The petitioners are however free to approach the court of plenary jurisdiction to challenge the veracity of bogus appointments, if so advised." Subsequently, in the year 2015, the Respondent No,1 along with others approached the Respondent No,3 with an application under the Sacked Employees (Re-instatement) Act, 2010 (the "Act of 2010"), who after hearing allowed the application vide impugned order dated 2.8.2016. Hence, this constitutional petition.
3. Counsel for the Petitioner has argued that the Petitioner is not an employer as defined in Section 2(d) of the Act of 2010 as it is a privatized organization. Therefore, the Respondent No,3 did not have jurisdiction in the matter as Respondent No,1 was never appointed, therefore, he could not fall within the definition of sacked employee as contained in Section 2(t) of the Act of 2010. He further argued that Act of 2010 was promulgated on 6.12.2010 and under Section 13 of the Act of 2010, a period of ninety days for approaching Sacked Employees Review Board (the "Board") is provided, but the Respondent No,1 approached the Respondent No,3 in 2015 (instead of the Petitioner which he should within 90 days as per Section 3) through application, which is hopelessly barred by time, but the said aspect of the matter was not considered by the Board.
4. Conversely, counsel for the Respondent No,1 has supported the impugned order and contended that the impugned termination order was illegally passed in a slipshod manner against the Respondent No,
1. He further argued that no formal order of dismissal was passed against him nor any inquiry was conducted through any Inquiry Officer regarding the allegation that his appointment was bogus as having been obtained on the basis of fake educational certificate; that he did not possess the requisite qualification. He further argued that dismissal of the Respondent No,1 was made on account of the change of the previous regime pursuant to general instructions of the successor Government issued on 7.11.1996. He argued that no sanctity was attached to a verbal order of the executive authorities as held by the Hon'ble Supreme Court of Pakistan in case of Capital Development Authority v. Mrs. Shaheen Farooq (2007 SCM R 1328). Lastly, he prayed for dismissal of the writ petition.
5. Arguments pro and contra have been heard and record perused.
6. From the perusal of the record it transpired that the Respondent No,2 had developed a Centralized System of Periodic Recruitment in BPS 1-15 in P.T.C. (Phase-II) vide notification dated 21.02.1995 in which it was made clear that when all the recruitment's are finalized, lists of selected candidates in the ratio of 1:1 be forwarded to the RRR Wing PTC HQ for onward transmission to the Establishment Division/the Respondent No,2. Subsequently, vide letter dated 11.06.1995 the list of persons as approved by the Establishment Division/Respondent No,2 for recruitment to posts in BPS 1-15 of Phase-II was forwarded which includes only nine (9) names. It is pertinent to mention here that the name of the Respondent No,1 was not placed in the said list of nine (9) approved persons by the Establishment Division/the Respondent No,2. It is evident from the record that the Respondent No,1 got himself appointed as Telephone Operator through bogus appointment letter, when it came into the knowledge of the Petitioner, it issued show-cause notice A to the Respondent No,1 as well as other similar persons on 17.05.1996 and thereafter he was removed from service.
Learned counsel for the Petitioner pointed out that the Respondent No,1 has given misstatement before the Court that he was dismissed from service in the second week of November without giving any specific date whereas he was terminated on 14.06.1996 which is mentioned in the order dated 26.11.2012 passed by this Court while dismissing the W.P. No,11200/2010; this is a disputed question of fact.
7. Furthermore, the order passed by the Respondent No,3/the Board in favour of the Respondent No,1 does not disclose any date of filing Appeal/application before it because in order to get benefit of the Act of 2010 the Application has to be filed within time prescribed in the Act. For the sake of brevity the relevant Section i,e, Section 3 of the Act of 2010 is reproduced below which is as under: "3. Application of sacked employee.--- (1) A sacked employee, as defined in Section 2 above, may file an application, within ninety days of the enactment of this Act, to an officer of his employer for re-instatement of his service where the sacked employee shall clearly write the date of application appearing on the face of application.
(2) In case, where sacked employee was serving in a defunct organization, he shall file his application for taking him back into service or in cases where sacked employee has already been re-instated under directions of any tribunal or any Court including the Supreme Court or a High Court or otherwise he may file his application for his regularization of service.
(3) The application shall be deemed to have been filed with the employer or authority or officer so authorized for the purpose of this Act, if the sacked employee files the application in person or through his representative or through registered post. In case of filing of application through registered post, receipt of registered post along with a copy of the application, available with the sacked employee shall stand sufficient evidence of the fact that the application was filed by the sacked employee, on date appearing on copy of application available with the sacked employee."
8. From the above it is very much clear that the sacked employee ought to have filed an application within 90 days from 8th December, 2008 to his employer by explicitly mentioning the date of application appearing on the face of it. There is mandatory requirement for filing application for re-instatement by a sacked employee which must be filed within 90 days in person or through his representative or through registered post. In case of filing of application through registered post, receipt of registered post along with a copy of the application, available with the sacked employee shall stand sufficient evidence of the fact that the application was filed by the sacked employee, on date appearing on copy of application available with the sacked employee.
But in the instant case, the Respondent No,1 has failed to show that he has filed any application before the concerned authority within 90 days of the enactment of the Act of 2010. Even the Board in the impugned order has not mentioned that when the application by the Respondent No,1 was filed and to whom it was filed. The impugned order deals with the case but did not disclose any date of application as per the requirements of Section 3 of the Act of 2010. As stated above, neither the Respondent No,1 was included in the list approved/sent by the Establishment Division/Respondent No,2 for his valid appointment nor he has shown that his application for re- instatement was well within time.
8. (sic) In view of the above, learned counsel for the Respondent No,1 has failed to make out a case of re-instatement into service. Resultantly, the petition is accepted and the impugned order dated 02.08.2016 passed by the Respondent No,3 is hereby set aside.