JUSTICE SHAH ABDUR RASHID (CHAIRMAN). --The appellant, Khalil Akhtar, who was employed as driver in WAPDA, was involved in two criminal cases in 1971. One was registered in Police Station, Lohari Gate, under section 395/366, P.P.C. And the other at Police Station, Yakki Gate, under section 376/342/347, P.P.C. The case under section 395/366 was tried by a Summary Military Court where the appellant was convicted on 6-5-1971 and sentence to undergo imprisonment and suffer lashes.
His appeal was partly accepted and the sentence of imprisonment was reduced to that already undergone. The other case was tried by the ordinary Criminal Court and the appellant was released on bail on 7-10-1971 and finally acquitted. Previously, also, the appellant had been released on bail on 25-3-1971. On both the occasions, the appellant reported for duty, but it appears that no duty was assigned to him.
2. By order, dated 23-1-1978, the Project Director, Grid System Construction, WAPDA, respondent No. 3, terminated the services of the appellant with effect from 5-6-1971, the date on which he was convicted by the Military Court, on the ground of his conviction and sentence of imprisonment and lashes awarded by that Court.
3. The order of termination of service, dated 23-1-1978 was challenged by the appellant before the Labour Court, by filing a petition under section 25-A of Industrial Relations Ordinance, 1969 read with the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as 1968 Ordinance). The Labour Court accepted the petition and re- instated the appellant but gave option to the respondents to hold proper inquiry, if they so desired..
The respondents, while complying with the orders of re-instatement made by the Labour Court filed an appeal before the Labour Appellate Tribunal and similtaneously initiated inquiry against the appellant, as permitted by the Labour Court. As a result of inquiry, another order of termination of the appellant's service was passed on 7-7-1979. The appellant again moved the Labour Court under section 25-A of the I.R.O. And his petition was again accepted and he was re-instated into service by order, dated 30-9-1979. The respondents again complied with the order of re- instatement, but preferred appeal to the Labour Appellate Tribunal on 30-9-1979. The Tribunal subsequently dismissed both the appeals.
4. To challenge the orders of the labour Appellate Tribunal, the respondents went to High Court by way of writ petition. The said Court accepted the petition by order, dated 9-10-1982 on the ground that the appellant being a civil servant, neither the Labour Court nor the Labour Appellate Tribunal had jurisdiction to hear the appeals.
5. As a result of the decision of the High Court, the appellant was again removed from service by order, dated 18-11-1982. In the appeal before us filed on 18-12-1982, orders of termination of services of the appellant passed on 23-1-1978, 7-7-1979 and 18-11-1982 have been challenged.
6. It was argued that the appellant being a workman was governed by 1968 Ordinance, and as such action could not be taken against him except on the ground and in accordance with the procedure laid down therein. Two decisions of this Tribunal are to the effect that no doubt the forum for adjudication on the grievance of a workman employee of WAPDA Is the Service Tribunal, nevertheless, action can be taken only if such misconduct, as defined in the 1968 Ordinance, is established and that too in accordance with the procedure laid down in the said Ordinance. Since we entertained some doubt about the correctness of these decisions, we requested Mr. S. Jamshed, Ali Advocate, to act as amicus curiae we have heard the learned counsel for the appellant, the learned counsel for respondents and the amicus curiae, all of whom rendered valuable assistance to us.
7. There can be no two opinions that if the WAPDA Employees (Efficiency and Discipline) Rules are applicable in the present case, then the appellant having been convicted to undergo imprisonment and suffer lashes by the Summary Military Court, his services could be terminated without notice or hearing under rule 13 of WAPDA Employees (Efficiency & Discipline) Rules, 1975 or under rule 8 of WAPDA Employees (E&D) Rules, 1978, as the case may be. However, as already stated, the appellant's case is that he being a workman, action could be taken against him only if the misconduct as defined in para. 15(3) of the Schedule to the 1968 Ordinance is established, and that too after following the procedure provided for therein. The learned counsel for respondents as also the amicus curiae have drawn our attention to the first proviso to section 1 of 1968 Ordinance, which reads as follows: "Provided that nothing in this Ordinance shall apply to industrial and commercial establishments carried on by or under the authority of the Federal or any Provincial Government, where statutory rules of service, conduct or discipline are applicable to the workmen employed therein."
It cannot be denied that the WAPDA is very much an establishment which is carried on under the authority of the Federal Government and as such the aforesaid proviso is strictly applicable. This being the case, the 1968 Ordinance, as far as Efficiency and Discipline is concerned, shall not be applicable to a workman of WAPDA. A workman like all other employees of the WAPDA is governed by the Efficiency and Discipline Rules made by the WAPDA, and since under these rules, power to terminate the services of a convicted person without notice is available to the competent authority, the orders of termination of service of the appellant passed on different dates are quite valid.
8. It may be pointed out that in the present case the first order of termination of service was passed on 23-1-1978, which was to take effect from 6-5-1971. The last order of termination of service is, in fact, the restoration of the order, dated 23-1-1978, inasmuch as, the Labour Courts had without jurisdiction set aside the order, dated 23-1-1978 and the subsequent orders. It has been argued on behalf of the appellant that the order, dated 23-1-1978 is bad in law, because the termination of service could not be made effective retrospectively from 6-5-1971, as has been done by the respondents. We would have considered this point, but we find that the present appeal is barred by time. The appellant had been litigating in the Labour Courts and the High Court, and the last order which the High Court passed was, dated 9-10-1982. The period upto 9-10-1982 from the date when the litigation started, could be condoned, but there is no justification for condoning the delay for the period between 9-10-1982 and 18-12-1982, the latter being the date on which the present appeal was filed. The question of examining the validity or otherwise of order being retrospec--tive cannot, therefore, be looked into by us under section 3 of the Limitation Act, as the appeal is barred by time.
9. For the reasons stated above, this appeal is dismissed with no order as to costs. Parties to be informed accordingly.
10. The fee of Mr. S. Jamshed Ali, Advocate, who acted as amicus curiae in this case, is fixed at Rs.2,000, which should be paid by the Law Division of WAPDA. The Deputy Registrar, Camp Office, Lahore, should separately send a letter to the Legal Adviser, WAPDA, in this respect, with a copy to Mr. S. Jamshed Ali, Advocate.
A. E.