JUSTICE (RETD.) MRS. ERUM SAJAD GULL, CHAIRMAN. The afore titled appeal has been directed against, the impugned judgment dated 23.5.2019 passed by learned Punjab Labour Court No VII, Gujranwala:
2. Brief facts of the case as per grievance petition are that the respondent was appointed as a Junior Clerk on 7.9.1981 in the appellant department Wapda, Lahore Region. Subsequently vide, office order dated 17.5.1983 the respondent was transferred to Gujranwala Region and he reported his arrival in the office of Chairman AEB Gujranwala on 23.5.1983 where he served as a Meter Reader. On 18.4.1998, seniority list of 173 Meter Reader was issued by the office of Chairman Area Electricity Board Gujranwala in which date of joining the cadre of Meter Readers of the respondent was inadvertently. shown as 29.9:1987 instead of 23.5.1983. Resultantly, the seniority. of the respondent was fixed at serial number 151 instead of serial number of 89. That the respondent was not conveyed any such change in seniority, depriving him to challenge the same before the competent authorities in time. That when the incorrect seniority of the respondent came his knowledge, he filed a representation before the concerned authority but his representation was dismissed. That aggrieved by the order the respondent challenged the. same before the.
Honorable Lahore High Court, Lahore which was dismissed and Intra-Court Appeal was disposed of with direction to approach competent forum who would decide the case on merits. That the respondent served the appellant department with the grievance notice but no reply was given to him. After which the respondent filed a grievance petition before the Punjab Labour Court.
3. The grievance petition was adjudicated upon. The learned Punjab Labour Court No. VII, Gujranwala after recording of oral as well as documentary evidence of the parties and after fulfilment of other codal formalities decided the grievance petition in the following terms:- "7. ----------------In view of above the respondents are directed to include the name of petitioner in seniority list of Meter Readers w.e.f. 23.5.1983 instead of 29.9.1987 and his case for promotion as MRS-II be placed before Departmental Promotion Committee for consideration. This judgment be implemented within 2 months. In these terms the petition is accepted.-
4. The appellant aggrieved by the judgment dated 23.5.2019 of Punjab Labour Court No. VII, Gujranwala filed the afore titled appeal before this Court.
5. Learned counsel for the appellant, inter alia, contended that the respondent never challenged his seniority which was published in the seniority list dated 18.4.1998. 2005, 2007, 2009 and 2012. That the respondent for the first time challenged his seniority, vide time-barred representation dated.
3.9.2012 which was dismissed 'vide office order dated 14.12:2012. Further argued that the seniority of the respondent was placed in the cadre of Meter Reader w.e.f. 29.9.1987 from the date when was performing his duty as a Meter Reader vide office order No. 492/20094-20112/EB-481 dated 18.4.1998 and the said order had been mentioned in his service book. Also argued that the Labour Court entertained a hopelessly time-barred grievance petition which the respondent filed after his retirement and instead of dismissing the same accepted it. Finally contended that the afore titled appeal be accepted and the impugned judgment of the Labour Court be set aside.
6. Conversely learned counsel for the respondent vehemently opposed the arguments and grounds raised in the memo. of appeal and argued in favour of the impugned judgment dated 23.5.2019 passed by the Labour Court. Learned counsel for the respondent argued that the respondent challenged his seniority when his incorrect seniority came into his knowledge and placed reliance upon 2004 PLC (CS) 1014, PLJ 2006 Tr.C. (Servics)- 82 and 1986 PLC 528. Finally argued that the afore titled appeal be dismissed.
7. Arguments have been heard, and the available record' with the appeal has been perused.
8. The respondent has admittedly retired in the year 2014 and after his retirement filed his grievance petition on 30.7.2015 before the Labour Court. During his service the respondent for the first time after a lapse of fifteen years filed a belated application before the competent authority on 3.9.2012, which was exhibited before the trial Court as Exh.R-8. In this application the respondent challenged his seniority and requested that on humanitarian and ethical grounds his case be considered and his seniority be calculated w.e.f. 23.5.1983 instead of w.e.f. 29.9.1987. The said application of the respondent was not accepted on the ground that seniority of the respondent was fixed w.e.f. 29.9.1987 in the cadre of Meter Readers, in the light of the office order No. 492/20094020112/EB-481 dated 18.4.1998. after which the respondent's Dame was placed at serial number 151. Aggrieved by this office order the respondent filed a writ petition No 3937 of 2013 before the Hon'ble Lahore High `Court, Lahore. The writ petition of the respondent was dismissed vide order dated 26.3.2014. After which the respondent filed an Intra-Court appeal No. 805-14 before & Division Bench of the Hon'ble High Court. The said Division Bench vide order dated 1.6.2015 directed the respondent to avail his remedy before the competent forum and the competent forum was also directed to decide the matter on merits. The respondent after the decision of the Division Bench, without wasting any time posted a grievance notice to the appellant and when it was not replied to filed a grievance petition before the Labour Court. The Hon'ble Supreme Court has repeatedly held that institution of an appeal before a wrong forum is not sufficient ground to dismiss an appeal on the ground of limitation and may be condoned within the meaning of Section 5 of Limitation, Act.
Hence in the light of the Hon'ble Supreme Court judgment "1995 SCMR 584 titled Karim Bakhsh and others versus Ghulam Hussain and others" the delay is condoned in tiling this appeal.
9. Before the trial Court the respondent exhibited copy of his entire service book as Mark-H. In which his cadre was changed from LDC to a Meter. Reader w.e.f. 29.9.1987 in view of office order No. 492/20094020112/EB-481, dated 18.4.1998 meaning thereby, that since the year 1998 it ''was in the knowledge of the respondent that his cadre had been changed w. el 29.9.1987 instead of 23.5.1983 as prayed for. In paragraph (4), of the application submitted by the respondent to the competent authority for correction of his seniority, there is an admission by the respondent that office order No. 492/20094020112/EB-481 dated 18.4.1998 was in his knowledge. According to the said office order the cadre of the respondent was retrospectively changed to that of a Meter Reader w.e.f.
29.9.1987. Hence in the year 2012, after a delay of fifteen years the respondent could not suddenly stand up and claim that he had no knowledge that his seniority was inadvertently fixed by the competent authority w.e.f. 29.9.1987 instead of w.e.f. 23.5.1983.
10. Admittedly, the first seniority list of the Meter Readers was prepared and published by the appellant department on 18.4.1998 exhibited as Ex.R-3. A copy of which was forwarded for information and necessary action to the concerned authorities including the Regional Secretary CBA Union, Gujranwala (Exhibit R-4). The respondent in his cross-examination before the Labour Court accepted that seniority lists of Meter Readers were also prepared in the years 2005,.2007 and 2009. But he had never raised any objection against his seniority as the said seniority list was not conveyed to him. This excuse of the respondent is not believable that he had no knowledge regarding his seniority. As all the respective seniority lists of Meter Readers were repeatedly published since the year 1998 and widely circulated to all departments. It is a settled principle of law that the law always favours the vigilant and not the one who sleeps on his rights.
11. The respondent for the first time raised a belated objection to the seniority list published in the year 2012 exhibited R-5 and R-5/1 dated 27.2.2012. It has been clearly mentioned in the seniority list of the year 2012 that the cut-off date for any objection raised was 16.3.2012. After expiry of six months of the cut-off date the respondent for the first time moved, an application Exh.R-8 dated 3.9.2012 to the competent authority for the correction of his seniority, which was rightly not accepted.
12. The record has been carefully perused and it has been established without any doubt that the seniority lists of the Meter Readers were circulated to the Workers Union and repeatedly published since the year 1998 till the year 2012. But the respondent for fifteen years was in a deep slumber and did not challenge his seniority and allowed it to attain finality. The respondent through his own conduct abandoned his right if any, to claim his seniority over his other colleagues. Hence at this stage the principle of stopped would debar the respondent from asserting right of seniority. It was now late in the day for the respondent to challenge his seniority after nearly fifteen years, as for so many years now his colleagues are enjoying their seniority above him creating a vested right in their favour which could not be upset at this stage in view of the principle of Locus-Poenitentiae.
Reliance has been placed upon PLD 2014 SC 338 titled Sarosh Haider versus Muhammad Javed Chundrigar.
13. In view of what has been observed above the afore titled appeal is accepted and judgment dated 23.5.20f9 passed by the Punjab Labour Court No. VII; Gujranwala is set aside.