C.M.No.1-2018.
This is an application for restoration of the titled writ petition dismissed for non-prosecution on 29.03.2018. The application is supported by the af fidavit of the learned counsel for the applicant.
2. For the reasons mentioned in this application, the same is allowed as a result of which main writ petition is restored to its original number which is being taken up today for hearing at the request of the learned counsel for the parties.
Main Case.
3. Through this constitutional petition, the petitioner has challenged the judgment dated 23.06.2015 passed by Punjab Labour Appellate Tribunal, Lahore/respondent No.3 whereby the grievance petition filed by respondent No.1 was allowed and he was reinstated into service without back benefit while setting-aside the order dated 28.08.2013 passed by Punjab Labour Court, Faisalabad/respondent No.2.
4. Brief facts giving rise to the filing of this constitutional petition are that responden t No.1 Maqsood Raza joined the FESCO on 10.04.2000 as Bill Distributor and started performing his functions diligently and honestly without giving any opportunity of complaint to his superiors. His performance evaluation remained satisfactory . However , after two years of his service when his father went unwell and there was no male member in the family to look after him, he remained absent from 10.07.2004 to 08.08.2004 and had statedly intimated the department. On account of his absence, he was served with a notice and later was dismissed from service on 27.11.2004 by Assistant Manager , not competent to pass such order . His departmental appeal was dismissed on 08.03.2005. He then issued grievance notice followed by grievance petition against the dismissal order . The petitioner submitted its written reply raising preliminary objection with regard to the limitation, misusing the proces s of law, absence from duty after expiry of the leave period, non-joining of duty despite intimation. On 28.08.2013 the grievance petition was dismissed on the ground that the grievance petition was filed very late and therefore was barred by time. However , respondent No.1 filed appeal before Punjab Labour Appellate Tribunal/respondent No.3 who allowed the same and reinstated respondent No.1 without back benefit, hence this writ petition.
5. Learned counsel for the petitioner submits that the judgments are at variance and respondent No.1 deliberately absented himself from duty and failed to submit satisfactory reply to the department and, therefore, was not entitled to any leniency or sympathy . Adds that the Revenue Officer re-designated Assistant Manager (CS) is competent to take disciplinary action which may result into dismissal from service. Also submits that he exercised the powers delegated by the Chief Engineer and therefore prays for setting-aside of the impugned order .
6. Conversely, learned counsel for the respondent No.1 submits that the petitioner admittedly being workman was illegally dismissed from service by incompetent authority since XEN was his appointing authority, therefore, he was the authority who could terminate him or dismiss from service and refers to section 2(a)(aa) of the Removal from Service (Special Powers) Ordinance, 2000. Also submits that there was further delegation of authority by the Chief Engineer to the Assistant Manager and that the limitation does not run against a void order. Submits that the grievance petition was, therefore, rightly allowed by the Appellate Court when it allowed the grievance petition and reinstate him into service without back benefit which is suf ficient in the interest of justice.
7. Arguments heard. Record perused.
8. Two precise questions raised before this court, out of the divergent arguments addressed by the adversaries, are, firstly , whether the lineman could be dismissed by Assistant Manager and, secondly , whether the grievance petition could be dismissed merely on account of limitation.
9. To answer the above said two questions, this court has noted that the XEN is the appointing authority of Bill Distributor and as per law he is also the dismissing authority . As far as the question whether this authority had been delegated to the Assistant Manager , this court has not been able to read from the letter dated 08.04.1999 that such authority was delegated to Junior Engineer re-designated as Assistant Manager . It is apparent that he may initiate disciplinary proceedings but when it comes to the point of imposing of the major punishment of dismissal from service, it must be the appointing authority who is legally authorized to impose such penalty . The grievance petition dated 18.04.2012 reveals that he was dismissed from service on 27.11.2004 and in paragraph 6, it was admitted by him that he could not file appeal within time because no limitation runs against a void order passed by incompetent authority . Perusal of the final show cause notice dated 25.10.2004 reveals that the Assistant Manager (CS) assumed the authority to issue the final show cause notice and also passed the dismissal order without showing his authority under the relevant provision of law. Obviously , a proposal to imposition of major penalty of dismissal from service is to be backed by the legal basis. In paragraph 5 & 6 of the reply submitted by the petitioner before the Labour Court, nowhere it was stated in specific terms that the Assistant Manager was the competent authority to dismiss the petitioner from service. It was the Punjab Labour Appellate Tribunal/respondent No.3 which has rightly observed that although the Assistant Manager was authorised to take disciplinary action against the Bill Distributor but under section 2(a)(aa) of the Removal from Service (Special Powers) Ordinance, 2000, it was the appointing authority which was competent for the purpose of removal of the appointees. Section 2(a)(aa) of the said Ordinance is reproduced as under:- "(2)(a)(aa) "competent authority" means, the Chief Executive and where, in relation to any person or class of persons, the Chief Executive authorizes any officer or authority , not being inferior in rank to the appointing authority prescribed for the post held by the person against whom action is proposed to be taken, to exercise the powers of competent authority under this Ordinance, that officer or authority , and, in relatio n to an employee of a Court or Tribunal functioning under the Federal Government, the appointing authority or the Chairman or Presiding Officer of the court or the T ribunal."
10. Even otherwise, the termination order passed by an Officer not competent under the law would be void ab initio and, therefore, bar of limitation would not run to challenge the said order . Relevant extract from paragraph 10 from the case titled "Province of Singh and others Vs. Ghulam Fareed and others" reported as 2015 PLC (C.S)
151, is reproduced as under:- "Secondly , in case of Furqan Habib the original order challenged before the Tribunal was neither a void order nor an order without jurisdiction, therefore, the bar of limitation was applicable in such cases whereas in the case in hand as noticed in the preceding para the termination orders having been issued by an officer not competent in law, therefore, such orders being void, would not attract the bar of limitation."
11. In the judgment titled "S. Sharif Ahmad Hashmi Vs. Chairman, Screening Committee, Lahore and another" reported as 1978 SCMR 367, case titled "Muhammad Raz Khan Vs. Government of N.W.F.P. and another" reported as PLD 1997 SC 397, case titled "Messrs Blue Star Spinning Mills Ltd. Vs. Collector of Sales Tax and others" reported as 2013 SCMR 587, case titled "Fazli Hakeem and another Vs. Secretary State and Frontier Regions Division Islamabad and others" reported as 2015 SCMR 795, and case titled "Karim Bakhsh and 4 others Vs. Riaz Hussain and another" reported as 1993 SCMR 1667, it was held that no limitation would run against the void order and the conduct of the parties must be seen while applying the judicious mind. By applying the said rule, this court has noticed that when specific plea was taken in the grievance petition in paragraph 5 & 6, it had to be replied in the written reply by the petitioner alleging the legal competence of the authority to dismiss respondent No.1. Besides, the learned Labour Court proceeded to dismiss the grievance petition after preliminary arguments and even without recording the evidence to substantiate the main and the primary objection raised by the respondent regarding competence of the Assistant Manager to pass the dismissa l order . Learned Punjab Labour Appellate Tribunal has rightly dealt with the matter and held that under section 11 the provision of the said Ordinance, it shall have effect notwithstanding anything to the contrary contained in the Civil Servants Act, 1973 (LXXI of 1973), and the rules made thereunder and any other law for time being in force, meaning thereby that the appointing authority shall be the competent authority .
12. Keeping in view the above discussion, I am very clear and, therefore, hold that Assistant Manager was not the competent authority to dismiss the servic e of respondent No.1 and that such order of dismissal was a void order , therefore, no limitation would run against it to challenge the same before the Labour Court since under the Removal from Service (Special Powers) Ordinance, 2000, the XEN being the appointing authority was the competent authority who has not delegated his authority to the Assistant Manager . In this view of the matter , this petition has been found meritless and is, therefore dismissed .