JUDGMENT (Rtd.) Munawar All Khan (Chairman).-By this appeal appellant Ali Muhammad Shahani has impugned the order of his reversion from the post of Police Inspector to that of Police Sub- Inspector. The operative part of the impugned order reads as under : - "Offg : Inspector Ali Mohammad Shahani of Sukkur Range is reverted to his substantive rank of Sub- Inspector with immediate effect for the allegations of corruption as reported by the S.S.P/Sukkur vide his report No. ST/454, dated 19-8-1185".
2. The appellant who was present in person was heard in support of his appeal and Mr. Abdul Ghafoor Mangi, A.A.G., submitted his arguments on behalf of the respondents.
3. The contention of the appellant was that his reversion amounted to reduction from the higher rank to lower rank within the meaning of rule 16.4 of Police Rules, therefore it could not be ordered without following the procedure laid down in rule 16.19 of the said Rules. He invited our attention to the Government notification No. '-OIX (REG) (S & GAD) 2/E/2-75. Dated 11th August, 1979 whereby the Members of the subordinate Police Servioe up to and including the rank of Inspector were excluded from the purview of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973 and instead Po.Ice Rules were made applicable to them On the other hand the learned A.A.G subm tted that since the appellant's reversi n was from officiating position, no show cause notice was necessary and consequently no inquiry was called for. In suport of bis contention he placed reliance on the Supreme Court authority reported as Pakistan v. Hikmat Hussain PLD 1959 Supreme Court (Pak) 107.
4. No doubt in view of the not fication referred to above by the appellant, subordinate Police personnel up to and including Police (Inspector are governed by the Police Rules. It is also true that as envisaged by rule 16.4 of the said Rules reverion from higher post is a reduction which can be ordered only after following the procedure laid down in rule 16. 9 of the said Rules. It was conceded at the bar that before passing of the impugned order of the appellant's reversion, neither show cause notice was given to him nor regular enquiry was held against him in accordance with the rules. Therefore the question would arise if the impugned order could be struck down for the above reason. In would appear that despite the exclusion of. The specified police personnel from purview of the Sind Civil Nervants (Efficiency and Discipline) Rules, 1973, they continue to be governed by the Sind Civil Servant Act 1973. Section 11 of this Act provides that Civil Servant appointed to higher post or grade adhoc or on temporary or officiating basis shall be liable to reversion to his lower post or grade without notice. This is obviously in conflict with the position spelt out in rule 16.4 read with rule 16-19 of the Police Rules. In the event of such conflict section 12 referred to above which forms a part of the substantive law will prevail. Accordingly a civil servant including a police official can be reverted from adhoc or temporary or officiating position without giving him any show-cause notice,
5. However, the reversion of the appellant from the Police Inspector's post was not simpliciter. The impugned order clearly shows that the appellant was reverted on the charge o! Corruotion, Thus his reversion was accompanied by a blemish. In other words he was condemned as a corrupt official without giving him an opportunity of showing cause against such condemnation. If there had been simple reversion without addition of the words 'for the allegation* o corruption as reported by S.S.P. Sukkur vide his report No. ST/45t, dated 19- -1985' in the impugned order, the competent authority had the power to order such rever ion without giving any notice to the appellant. But as has been mentioned in the said order, he lost his higher position of Inspector on the ground of corruption charge, he was entitied to show-cause notice. In other words the prescribed procedu e as given in the Police rules referred to above had to re followed. This view finds supp rt from the Supreme Court authority reported as Muhammad Ibrahim v. Government of Pakistan PLD 1972, SC. 332 wherein it was held :- "Government has the legal authority to terminate an officiating appointment at any time and it may do so for any reason relatable to exigencies of service. No show-cause noti e is necessary in such a case. But if it is intended to revert on officer to an inferior post by Way of penalty, a show- cause notice is necessary notwithstanding that the appointment to the superior post was in an officiating capacity."
6. Viewed in the light of above authority, the appellant's reversion was also made by way of ounishment as it was ba ed on charges of corruption. Such reversion could only be ordered by observing the procedure contained in the aforesaid Police Rules Since this was not done, the order of reversion was i'legal. The case of Hikmat Hussain relied upon by the learned A.A G. Is distinguishable and therefore does not help the respondents. The reversion involved in the said case was free from taints and therefore cannot be placed at par with the appellant's reversion which carried a blemish of corruption.
7. For above reasons, the appeal is allowed and the impugned order is set aside, with no order as to costs.
8. Given under our hands and the seal of this Tribunal this 13th dayo f November, 1986 at Karachi.
K.L.R. 1987 Labour and Service Casses 49 [Karachi] (Rtd.) Munawar Ali Khan (Chairman)
HASHIM ALI KHAN AND SHAH MUHAMMAD NAREJO versus PROVINCE OF SIND, THROUGH CHIEF SECRETARY GOVT. OF SIND, KARACHI,and others Appeal Nos. 41 of 1985, 79, of 1985, decided on 5th October, 1986,
(a) Sind Civil Servant Act, 1973 --S. 26-Upgrading of post-Post of Assistant and Head Clerk bracketed in one Group and placed as intertransferaUle-Post of Assistant up-graded-Contention that due to pgradins* of post of Assistant the post of Head Clerk was aromatically upgraded-Held : Merely because the post of Hend Clerk was also in Grade-to at the time of issuing of the ^flhove notification, is no reason to hold that with up grading of the post of ^^Hsistant. Head Clerk's post also automatically stood up- grade 2 to grade- If this argument were to prevail, then all posts in gracte-lo existing in ^Hther Government Offices would oe regarded to have been upgraded on Tissuing of the afore- mentioned notification. (Para. 5)
(b) Slat Civil Servant Aet, (1973) ---- S. 26-Posts carrying different names in once Scale change in the status of one- fcffect of - Held : So long these posts existed with different names, any change in status of any of them can not be held as automatic charge in status of other of the said posts. It is because these posts were in the same grade 10, they were bracketed together as equivalent to each other and treated as inter ransferaole posts. For this reason the post of Head Clerk can not be held have been automatically upgraded with up grading of the post of Assistant. (Para. 5)
For the Appellants in ; Abdul Ghafoor Mangi Assistant Advocate General.
Date of hearing I 10th September, 1986.
(Bid ) Monawar AH Khan (Chairman).-Two appeals, one bearing No. 41 of '985 filed by H The case of appellant Hathim Ali Khan is that in 1981 when he was working as Stenograp her (grade-8) he was promoted to the post of Head Clerk (grade-10) and worked in that ' apacity for a period from 1-2-1981 to 30-6-1983. Meanwhile Provincial Government ty notification No. FD (SR-IV) 1-115/77, dated 15-5-1982 placed the post of Assistant (grade-10) in secretariat and aomecretariat offices of Government in NSP-II w.e.f. 1-1-19*1. 1a view of the up-grading of thr said post of Assistant, the appellant asitated for placing the post of Headclark also in grade-11, praying further that his pay as Headclerk for the aforesaid period may be fixed in grade-11 instead of grade-10. Having failed to get the desired relief at the departmental level, he approached the Tribunal in the aforementioned appeal.
The case of another appellant Shah Muhammad Narejo is more or less similar to that of above appellant. While he was serving as Senior Clerk (grade-6) in 1984 he was promoted as Head Clerk (grade-10) and posted at Technical Training Centre, Kotri. Following the upgrading of the post of Assistant, he too like his friend Hashim Ali Khan agitated for fixing his pay as Head Clerk in grade-11.
Some how he also did not succeed in his efforts and he ultimately filed appeal before this Tribunal stated above.
After hearing the submissions made by both the appellants personally and the arguments of the learneo AAG., both the appeal^ were dismissed by short order dat-d I 0-9-1986 for reasons to be recorded later on. Following are the reasons in support of the said hoit order.
The submissions made by tb appellants are stated as follows.
(1) Thai the post of 'Headclerk' is one and the same as that of 'Assistant' as reflected in the letter No. DL/N/H& 0/6-*28)/72/ 717, dated .0th Febr ary, 1973 of the Directorate of Laoour, Government of ind and therefore with up grading of the post of Assistant, the post of Headclerk should be automatically placed in the equivalent gsade,
(2) That one Mr. M M. Malik who was working as Head Clerk, Technical Training Centre, Kotri was transferred and posted as Assistant, Headquarter of Mineral Wing an t as such his transfer was I dicative of the fact that the posts of Head Clerk and Assistant were one and the same thing.
(3) That in view of up grading of the post of Assistant, other non- Secretariat Offices of Govt, have allowed grade-11 to Headclerks working in the said offices.
(4) That even the Directorate Labour put the post of Headclerk in grade-11 vide budget estimate for >ears 1982-83 to 19a--85.
The thrust of the appellant's submissions was that with up grading of the post of Assistant, the post of Head-Clerk whica was in the same grade- 10, was also automatically up grade > to ^rade-lr. In order to appreciate this contention it may be use m1 to reproduce the relevant para of the Government notification by which the post oi Assistant was up-graded, it reads as under : - "I am directed to state that in exercise of the powers conferred by section i6 of the Sind Civil Servant Act, 1973, the Government of Sind has decided as uuuer :-
(i) The posts of secretariat Assistants and non-secretariat Assistants in NhP-to shall now be placed in NSP-ll."
It is clear that the above notification speaks of up-grading of only the posts of Assistants in Secretariat and non-secretariat Offices. The post of Head Clerk w ich is distinct and separate from toat of the Assistant's post does not find mention in the notification. Merely because the post of Head Clerk was also in grade-10 at the time of issuing of the above notification, is no reason to hold that with up grading of the post of Assistant, Head Clerk's post also automatically stood up-graded to grade-11. If this argument were to prevail, then all posts in grade-10 existing in other Government Offices would be regarded to have been upgraded on issuing of the afore-mentioned notification.
Moreover if both the posts are one and the same thing, there was no reason to give th; m different names. Obviously each one of them is assigned different functions and duties.
It is true that in the letter of Directorate Labour, Sind dated 10th February, 1973 which has been relied upon by the appellants it is stated that according to the draft recruitments rules the posts of, Assistants at Headquarters/Vocational Guidance Unit, Head Clerks at Technical Training Centres/Employment Exchanges/Regional Directorate of Apprenticeship Training, and Accountant at Technical Training Centres, have been bracketed tegether as equivalent and intertransferable posts. This was obviously mentioned because all the three categories of post were at the time in the same grade.
Such mention was however not meant to affect their separate identity. So long these posts existed with different names, any change in status of any of them can not be held as automatic change in status of other of the said posts. It is because these posts were in the same grade-10, they were bracketed together as equivalent to each other and treated as intertransferable posts. For this reason the post of Head Clerk can not be held have been automatically upgraded with upgrading of the post of Assistant.
It appears from the record that the appellants did agitate for upgrading of post of Head Clerk on the analogy of the equal status of the two posts but Finance Department did not agree and the post of Head Clerk, despite tho up-grading of Assistants'! Post, continaed to remain in grade-10.
As for the transfer of Mr. M. M. Malik from the post of Head Clerk to that of Assistant, it may be observed that his transfer was made in i979 when both the posts were in the same grade. E en otherwise the two posts being interchangeable is no reason for automatic upgrading of Head Clerk's posts, in case of the up grading of post of Assistant. Therefore the above case of transfer is of no help to the appellants' case.
The next submission made by the appellants was that following the issuance of the Government notification referred to above the other nonsecretariat office of Sind Government have allowed grade-11 to their Head Clerks. They have however not substantiated their assertion by citing any concerete instance. Assuming that other non-Secretariat offices have allowed grade-11 to their Headclerks, that too would be no reason to hold the posts of Head Clerks held by the appellants to have automatically upgraded to grade-11. For up-grading of their posts, the express order of Govt, is necessary. They could agitate for up-grading of their posts on that very ground, if they had authentic informatiun that other non-secretariat offices have allowed grade-11 to their Head Clerks.
In any case the up-grading of their posts (Head Clerks post) can be ordered only by the Government by issuing notification as has been issued for up grading the Assistant's post. In absence of such order, the appellants are not entitled to the benefit of grade-11.
Lastly the appellants* submission was that in Budget Estimates for the specified years the post of Head-Clerks was shown in grade-11. It may be pointed out that in this regard respondents have made a categorical denial in their written statement, clarifying that it was a printing mistake which was subsequently rectified by the Finance Dept, by issuing corrigen- cum. A photo copy of the corrigendum has also been produced in support of their plea.
For the above reasons we hold that the post of Head Clerk is distinct and separate from that of Assistant and as such until it is up-graded by express order of Govt., it can not be automstically up graded with the up grading af the post of Assistant. Accordingly both the appeals were dismissed by short order, as stated above.
K.L.l. 1987 Laboar and Service Casas 53 [Azad Jammu and Kashmir] Present! Raja Muhammad Khurshid Khan, C.J. Sher Zaman Chaudhary, J.
SYED AUL^D ALI SHAH GILANI DEPUTY DIRECTOR FOOD. AZAD KASHMIR GOVERNMENT WITH HE \DQUAR- TERS AT RAWALPINDI AND CH. MUHAMMAD SADIQ CONSERVATOR OF FORESTS PLANNING AND DEVELOP- MENT CIRCLE MUZAFFARABAD versus AZAD JAMMU AND KASHMIR GOVERNMENT THROUGH CHIEF SECRETARY, SE< RETARY SECVICES AND GENRAL ADMINISTRATION MUZAFFARABAD Civil Appeal Nos. 22 and 28 Mzd. Of 1980, decided on 7th April, 1986.
(On appeal from the Order of the Service Tribunal dated 9-8-1980 and 2-6-80 in Appeal Nos. 102 of 1979 and 123)
AJ&K Service Tribnnal Act (1975) ---- S. 4-Appeal against minor penalty-Maintainability of-Minor Penalty was awarded on the basis of report of Inquiry Commission- Appeal not maintainable if minor Penalty was imposed on report of departmental inquiry-Service tribunal dismissed appeal as not maintainable without referring any law-Supreme Court remanded the case to service tribunal to decide the point as to whether the inquiry conducted by Commission of inquiry can be said to be an inquiry conducted by a departmental authority and if the answer is in negative how would it effect the appeal before service tribunal. (Para. 11)
For the Appellants : B. A. Farooqi, Advocate.
For the Respondents : Sardar Rafique Mahmood, Advocate General.
Date of hearing : 7th April, 1986.
Raja Mahrmnad Khurshid Khan, C, J.-By this order identical point in- volved in both the above captioned appeals, by leave, is being determined.
2. The matter has come up before us in the following way : In the first appeal (No. 22 of 1980) the appellant, Aulad Ali Shah, while he was acting as Deputy Director Civil Supplies at Rawalpindi, on the basis of the report of Inquiry Commission No. 1, constituted by the Government, having been found guilty of inefficiency and misconduct as stipulated under Rule 3 (a) (b) of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, was demoted to Grade 17 from Grade 18 vide Government Order No. S&GAD/4016-22/78 dated 9th of November, 1978. The appellant took exception to this penalty by way of a review petition to the Government which was partially accepted and he urns sent up to Grade 18 but was awarded the punishment of censure.
This order was passed by the Government on 25-5-1979.
3. In the second appeal (No. 28 of 1980) on the basis of the report of a Commission known as Enquiry Commission No. 1, who inspected village Jheeng in Muzaffarabad District in connection with some irregularities in mai king the private forest of Kh. Muhammad Usman and others, residents of village Kahori, Ch Muhammad Sadiq, the appellant (Conservator of Forests), was found guilty of inefficiency and misconduct as stipulated under the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977. And was awarded punishment of stoppage of two annual increments vide Government Order No. S & G AD/41J8-45/79 dated 4-8-1979.
4. The appeal moved by Syed Aulad Ali Shah, appellant, to the Service Tribunal to assail the decision of the Government was disallowed by the Service Tribunal on 8-9-1980 ; while the appeal moved by Ch. Muhammad Sadiq, appellant, to avoid the Government Order was dismissed at the preliminary stage by the learned Member of the Service Tribunal on 1-6-1980. Appeals in both the cases were refused mainly on the ground that minor penalty cannot be made subject of an appeal before the Service Tribunal.
These appeals, by leave, are meant to discredit the said Judgment of the Service Tribunal.
5. Mr. B. A. Farooqi, the learned counsel appearing on behalf of the appellants, maintained that in the first appeal the learned Service Tribunal failed to take note of the fact that the appeal against a minor penalty is only barred when the penalty is imposed on the basis of a report made by a Departmental auttierity ; and as the penalty imposed in this was on the basis of the report of Commission of inquiry and not toe departmental authority, the appeal to the Service Tribunal was competent. But the learned Service Tribunal had not applied its mind to determine the controversial point as to whether an inquiry conducted by the Commission of Inquiry can be equated with an inquiry conducted by the departmental authority. In the second appeal the learned single Bench of the Service Tribunal, the learned counsel submitted, has misinterpreted the proviso (b) (//) of section 4 of the Service Tribunals Act inasmuch as the said proviso does not hit the case of the appellant because the inquiry made by the Commission cannot be equated with the inquiry made by the departmental authority. Elaborating his point the learned counsel submitted that in the first aopeal the learned Service Tribunal has failed to determine the issue ; and in the second appeal the learned single Bench of the Tribunal failed to decide the issue objectively. He further submitted that the issue being vital, the cases may be remanded back to the Service Tribunal to' have its "wisdom on the issue.
6. Mr. Rafique Mahmood, the learned Advocate General, appearing on behalf of the respondent, frankly conceded that the remand would be the proper course as the decision made by this Court would clinch the matter finally without having the critical opinion of the Service Tribunal which would sot be desirable.
7. The relevant provisions of section 4 of the Service Tribunals Aet, 1975, which deals with appeal, reads :-r- '4. Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service including disciplinary mattor may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal; Provided that- () ............................................................................................................. (b) no appe 1 shall lie to a Tribunal against an order or decision of a departmental authority determined- (0 ... ; or
(fl) the quantum of departmental punishment or penalty imposed on civil servant as a result of a departmental inquiry except where the penalty imposed is dismissal, removal, reduction in rank or compulsory retirement from service ; and {') ............................................................................ "
8. As stated earlier Mr. B. A. Farooqi maintained that in the first appeal (Appeal No. 22 of 1980) the Service Tribunal failed to determine the issues as to whether the minor penalty, to bar the appeal before the Service Tribunal, awarde to the appellant on the basis of the report of the I< quiry Commission can be equated with a departmental inquiry ; and in the second case it was su mitted that the learned single Bench of the Service Tribunal has misinterpreted the proviso (b) (ii) ot section 4 of the Service Tribunals Act, 1975. To say that the peralty has been imposed as a result of a departmental inquiry (report of the Comr* ission.) In support of his point he has referred us to the definition of 'departmental inquiry' in 'Practical Dictionary. New Revised Edition'. The definition is as under : "Inquiry conducted into an employee's conduct not by the force of law and order but by his department itself.''
On the basis of this definition he wants us to bold that appeal in both the eases a ainst a minor penalty is only barred when it is awarded as a result of a departmental inquiry which situation is not available in these cases and the learned Service Tribunal erroneously held that the appeals were incompetent.
9. We have looked into the Judgment passed by the learned Tribunal in the second appeal (No. 28 of 1980). The learned single Bench of the Tribunal without making any reference to any law repelled the above argument with the observation 'that department d inquiry cannot be restricted to mean an inquiry conducted by a particular department itself as there are only two sets of inquiries known one being judicial and the second departmetal, and this inquiry though conducteo bv the Inquiry Commission shall be construed to be a departmental inquiry. This finding, to us, has been given without proper application of mind, No law has been cited in support of this finding neither dictionary meaning of the "departmental inquiry'' had been taken into consideration.
10. It is fundamental principle of law that order of a Court should conform with the provisions of law, i.e., should contain concise statements of the case, the points for determination which have been raised or arise in the case, the decision thereon and the reasons for *such decision. Where a judgment does not show that the learned Court has applied its mind to all the points raised, the impugned judgment cannot, therefore, sustain and remand is the demand of law.
II. We have given our considered thought as to whether we should decide the controvers in the latte case ourselves or remand the case to the Service Tribunal. As identical questions are involved in both the cases and we have decided to remand the case entiled "Sped Aulad Ali Shah Gilani v.
Azad Government and another" to the Service Tribunal to decide the point as to whether the inquiry conducted by a Commission of Inquiry can be said to be an inquiry conducted by a departmental authority and if the answer is in negative, how would it affect the appeal before the Service Tribunal; and as in the case of Ch. Muhammad Sadiq the learned single Bench has not applied it* mind objectively, we, therefore, feel advised to remand this case too to the Service Tribunal for deciding the matter afresh after due application of mind.
For the view we have taken in the matter while accepting both the appeals we quash the findings in both the appeals >f the learned Service Tribunal and remand the case back to the Tribunal to decide them afresh in view of the observations made above. No order as to costs. The matter, if possible, may bo disposed of by a Division Benceh of the Tribunal. ---------- K.L.R. 1987 Labenr and Service cases 56 [Karachi] Justice (Retd.) Munawar Ali Khan (Chairman)
ALTAF HUSSAIN BUGHIO versus THE SECRETARY TO THE GOVERNMENT OF SIND and others Appeal No. 73 of 1985 decided on 13th Septmber, 1986
(a) Sini Civil Servant (E & D) Rales 1973 ---- Rule 5-Enquiry into allegation-detailed statement of allegations not supplied-Held: In order to enable the appellant to meet the charges against him, it was imperative that he should have been furnished a detailed statement of allegation as is invariably done in such cases. A brief mention of the allegations which were patently vague, in the show cause notice would net do away with the necessity of supplying a separate detailed statement of allegations to the appellant. (Para. 3)
(b) Sind Civil Servant (E & D) Rales, 1973 ~-Rule 5 (2) Discretion vested with authorised officer-Principle for discretion-Held : No doubt Sub- rule (2) o Rule 5 of the said Rules give* discretion to the "Authorised Officer" to take decision in a case like this keeping in view the facts of the case and the interests of justice, to as whether inquiry should be conducted through an Inquiry Officer or Inquiry Committee or not.
Obviously he is required to exercise the discretion so vested in him judiciously. Since his decision in this regard is to depend upon the facts and circumstances of the case it is bound to vary from case to case. (Para. 3
(c) Siad Civil Servants (E & D) Roles, 1973 ---- Rule 5(2) Enquiry-Charges against appellant of criminal nature -No report made to police and this case not sent for trial -Charges disputed by appellant-No enquiry held by the department-Held: since the Principal took upon herself the job which should have ordinarily been done by the court, it was incumbent upon her to have ordered detailed inquiry as envisaged by the afore-said rule. It is only in course of the inquiry that the truth or otherwise of the evidence of the witnesses to be produced in support of allegations against appellant could be brought out. Regardless of the status and position of any witness appearing against the appellant his word cannot be straight away accepted unless his evidence is thoroughly scrutinised and properly evaluated. The only vehicle to sift the evidence of witnesses is to subject them to rigours of cross-examination (Para. 4)
For the Appellant: Hameed M. Siddiqui For the Respondent: Abdul Ghafoor Mangi.
Date of hearing : 8-9-1986.
(Rtd.) Munawar All Khaa (Chairman).-The appellant Altaf Hussain Bughio was employed as Laboratory Assistant in the Girls Medical College, Nawabshah when he was removed from service vide order No. NMC/NH/ Estt./2640, dated 1-6-1985 of the Principal of the said Medical College. In this appeal the appellant has impugned the above order.
After hearing the learned counsel for the appellant Mr. Hameed M. Siddiqui and Mr. Abdul Ghafoor M ngi, A.A.G, for the respondents, the appeal was allowed by sh ut order dated 8-9-1986 for reasons to follow and the case was remanded back to respondent No. 2 for deciding it afresh, after holding a detailed inquiry. Following are the reasons in support of the said short order.
We have perused the relevant record for the purpose of disposal of the appeal. It is found that two show cause notices were issued to the appellant, one dated 26-3-1S8* and another dated 14-4- 1985, Para one of the first show cause notice reads as under :- "It has been reported on 24-1-1985 by the then Administrative Officer, Nawabshsh Medical College Nawabshash that Mst. Haleema wife of Hakim Ali Chowkidar was caught red handed from the kitchen of your flat alongwith yourself in pretence of most of the the witnesses at the spot.** The secend show cause notice is however silent about the above allegations. Im?e the appellant has been removed from service on the basis of the allegations reproduced above, we have to see if the said allegations have been proved. Admittedly no enquiry as envisaged lay rule 5 of Sind Civil Servant (Efficiency and Discipline) Rules 1973 (hereinafter referred to as the said rules) has been held in this case. If the allegations are examined at their face-value, they apart from being vague, do not prove anything rendering the appellant liable for any punishment. All that is that he was caught red-handed with Mst. Halima in the Kitchen of his flat. There is no further elaboration to show that they were engaged in any illicit a t or they were only found together in the same room Moreover, the witnesses in whose presence the said lady was found in the kitchen of the appellant's flat are not disclosed in the show cause notice.
On perusal of the appellant's replies to both the show cause notices, given to him, it is clear that he has denied the allegations of his involvement with the above lady. He has also related the circumstances in which he has been involved in this case. Although the learned A.A.G, in course of his arguments told us that the appellant was supplied with copies of the statements of the witnesses in whose p esence he was caught alongwith Mst. Haleema, we do not find any trace of such material on record. Neither the appellant nor the respondent have laid before us the copies of the statements of the witnesses who had seen the appellant with Mst. Haleema in the former's flat.
As required by Sub-rule (3) of Rule 5 of the said Rules if "Authori e< Officer" decides that it is not necessary to nave an enquiry conducted through enquiry officer or enquiry committee, he shall, by order in writing, inform the accused of the action proposed to he taken with regard to him and the grounds of the action, eiving reasonable opportunity of showing cause against that action.
Nodou^tthe appellant was informed by the first show cause notice about the action proposed to be taken against him but no statement of a'le^ations against him seemed to have been separately supplied to him. In order to enable the appellant to meet the charges against him, it was imperative that he should have been furnished a detailed statement of allegations as is invariably done in such cases. A brief mention of the allegations which were patently vague, in the show cause notice would not do away with the necessity of supplying a separate detailed statement of allegations to the appellant.
Apart from above, we feel that the appellant was not provided adequate opportunity of meeting the grave charges of hi5 involvement with the ladv. No doubt Sub rule (2) Rule 5 of the said rules gives discretion to the Authorised Officer" to take' decision in a cae like this, keeping in view the facts of the case and the interests or justice, as to whether inquiry should be conducted through an Inquiry Offi er or Inquiry Committee or not. Obviously he is required to exercise the discretion s > vested in him judiciously. Sine* his decision in this regard I to depend upon the facts and circumstances of the case it is bound to vary from case to case. T ie question arises if in the instant case decision of the "Authorised Officer" not to hold a detailed inquiry Was justified by the facts and circumstances of the case.
It is not denied that the allegations made against the appellant were ef criminal nature constituting > criminal offence. We are surprised *hy the ca e of 'his nature, when it came to the notice of Principal of the College. Was not reported to the Polue for prosecution of the accused. If the case was sent to the Court after due investigation by the police, the Court could arrive at the conclusion as to guilt or otherwise of the appellant only after due sifting of the evidence laid before it in support of the charges. If the Court had convicted the appellant it would have been easier for the Principal of the College to have awarded penalty of dismissal to him on the basis of such conviction.
But since the Principal took upon herself the job wT ich should have ordinarily.Been done by the * Court, it was incumbent upon her to have ordered detailed inquiry as e visaged by the afore-said rule. It is only in course oi the inquiry that the truth or otherwise of the evidence of the witnesses to be produced in support of allegations against appellant could be brought out. Regardless of the status and position of any witness appearing against the appellant his word can not be straight away accepted unless tis evidence is thoroughly scrutinised and piopeily evaluated The only vehicle to sift the evidence of witnesses is to subject them to rigors of cross-examination. However, in this case the Principal of the colltge seems to have followed a short cut procedure little realising that wh n the fact constituting the charges are disputed, correct decision can be arrived at only after holding a detailed inquiry and subjecting the witnesses produced in the inquiry by either side to cross-examination. Accordingly we are convinced that since the facts constituting the charges against the appellant are disputed it was necessary for the Principal to have ordered inquiry to be conducted by inquiry officer or irquiry commute and in absence of such inquiry and without sifting the evidence produced in support of the charges the Principal has erred in plac ng reliance on the oral or written statements of the witnesses who had allegedly caught the appellant red handed with the aforesaid lady.
For above reasons we allowed the appeal by short order as stated above and remanded the case back to the Principal of the Medical College, Nawabshah for deciding it afresh after following the procedure laid down by rule 5 read with rule 6 of the said rules.
Given under hands and the seal of this Tribunal on this 13th day of September, 1986 at Karachi.
K.L.R. 1987 Labour and Service Cases 59 [Karachi] Justice {Retd.) Munawar Ali Khan (Chairman)
GHULAM MURTAZA ABRO verm THE SECRETARY TO GOVERNMENT OF SIND and other Appeal No. 87 of 1985 decided on 21st September, 1986 Siad Civil Servant Act 1973 ___ S, 11 clause (ii) read with S. 2 (1) clause (a) and Sind Civil Servant 1A P & T) Rules, 1974 Rule-20 Adhoc appointment as a stop gap arrange* ment for a period of six months-Termination of such Service-Require- menof Notice-Held, Since the appellant was appointed initially for a period of six months, his appointment could be terminated without notice on expiry of that period. (Para 3)
For the Appellant; Inamul Haque, Advocate.
For the State f A. G. Mangi, Assistant Advocate General.
Date of hearing : 16th October, 1986.
(Retd.) Munawar Ali Khan (Chairman).-Appellant Ghulam Murtaza Abro was appointed as Librarian at the Ojha Institute of Chest Diseases, Karachi in a temporary post as stop gap arrangement for a period of six months vide order dated 19th November, 1980, However his continuance in the service was subject to relexation of his upper age limit. He was older for the appointment by 8 years, one month and two days. In December, 1984 the Directorate of Health Services took up the case of relexation of his upper age limit with the Secretary Health Department, Government of Sind But before the necessary relexation was made (vide orderdated 29th July, 1985) by the Chief Secretary, his services were terminated w.e.f. 25-5-1985 by the impugned order. The appellant challenged this order of termination in bis representation to respondent No. 2. After his representation was rejected, he preferred appeal to the respondent No. 1 but that too failed vide order dated 5-11-1985. It is in the above factual background that the appellant has come in this appeal before the Tribunal.
After hearing the arguments of the learned counsel for the appellant and the learned A.A.G, the appeal was dismissed by short order dated i7-9-1986 for reasons to be recorded separately.
Following are the reasons in support of the said short order.
It was contended by the learned counsel for the appellant that the termination of the appellant's services being without show cause notice was illegal and in contravention of the conditions of his appointment. He further submitted that before the impugned order was passed, the Directorate Health Services had already recommended to the Government for relexation of upper age limit of the appellant showing thereby that the appellant was to be continued in service even after the expiry of the initial period of his appointment (i.e. Six months). The learned counsel also drew our attention to the Letter No. E-II/(.PF-7) /5557/5g, dated 24th August, 1982 written by the Director, Health Services to the Secretary, Health Department wherein the Secretary had been told that the services of the appellant were terminated on expiry of the term of his adhoc appointment because of his un-satisfactory work and conduct. The learned counsel therefore argued that in such a case the appellant was entitled to show-cause notice before terminating of his services.
The impugned order by which the appellant was appointed is couched in the follo'Mag words ; "Mr. Ghulam Murtaza Abro S/o Late Dia Mohammad Abro is hereby appointed as Librarian at Rs. 590/-of Rs. 590-26-1110 in(BPS)8) at Ojha Institute of Chest Diseases, Karachi against vacant post on the following terms and conditions;
(1) His appointment is purely temporary as stop-gap arrangement for b months.
(2) His further continuance in service will be subject to relexation of his upper age by the Government.
(3) In case his appointment is regularized he will be governed by the services Rules applicable to the Sind Civil Servants.
It is clear from the above order that the appointment of appellant was made for a specified period of six months purely on temporary basis and as a stop-gap arrangement. Sueh appointment can appropriately be termed as 'adhoc appointment' which, as defined, in clause (a) of Sub- Section
(1) of section 2 of the Sind Civil Servant Act, 1973 (hereinafter referred to as the said Act) "means appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment, pending the recruitment in accordance with such method". In this connection reference may also be made to part IV of the Sind Civil Servant (Appointment, Promotion and Transfer) Rules 1974 (hereinafter referred to as the said Rules). Rule 20 appearing under the said part reads as under "Short term vacancies in the posts falling within the purview of the commission and vacancies occuring as a result of creation of temporary posts for a period not exceeding six months may be filled by the appointing authority otherwise than through the commission on a purely temporary basis after advertising the vacaney."
Although the appointment of the appellant did not fall with the purview of the commission yet on the principle laid down in the above Rule his appointment was purely temporary for a period of six months as a stop-gap arrangement, and this appointment was obviously made otherwise than through the relevant departmental Selection Committee. The question arises whether for terminating such appointment show cause notice was called for. Section il of the said Act deals with terminating of service of a Civil Servant without notice. As per clause (h) of the said section, the service of the Civil Servant may be terminated wihout notice at expiry of initial or extended period of his employment, Since the appellant was appointed initially for a period of jix months, his appointment could be terminated without notice on expiry of that period. This is precisely what had happened in the appellant's case.
As pointed out above his appointment was made on 19th November, 1984 for a period of six months which obviously expired on 18th May, 1985. However, his services were terminated 7 days later i.e. w. e.f. 25th May. 1985. Thus the impugned order of the appellant's termination of service was not only in accordance with the requirements of the law as mentioned above but was also within the four corners of the conditions on which the appellant's appointment was based. Merely because the appellant's case was recommended for relexation of his upper age limit, it could not be assumed that his appointment was extended beyond six months. The argument of the learned counsel for the appellant was untenable in as much as that recommendation for re exation of appellant's age limit had actually followed the decision of the Directorate Health Services to continue the appellant in services We regret we cannot subscribe to this view. There is nothing on record to indicate that any such decision was Uken or any such order for extentions for appellant's service was pashed.
May be the reference for relexation of his upper age limit was mooted in anticipation of the possibility of his continuance in service. But some how it is clear from the report of the Directorate submitted to the Government as referred to above that the performance of the appellant was not satisfactory and therefore, his services were terminated. His appointment being purely temporary as a stop-gap arrangement, he was not entitled to show cause notice Even otherwise as is clear from the impugned order the termination of his service is not accompanied by stigma. It is the termiaation of seivice simpliciter.
For the above reason the appeal being without merit was dismissed by short order.
Given under our hands and the seal of this Tribunal on this 21st day of September 1986 at Karachi.
K.L.R. 1986 Laboar and Service Cases 62 [Karachi] Preseat: (Rtd.) *li Nawaz Budhant J.
SYED MURTAZA RAZA versus MESSRS PAKISTAN STEEL Appeal No. Kar.-637/83, decided on 29th August, 1985.
West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance (VI of 1968) ---- S. O. 15(3)-Appellant dismissed on the ground that he suppressed the fact of his conviction by summary Millitary Court from the establish- ment-Held: Nowhere in the Questinous or in Biodata any column exist of his previous convictions and as such the appellant has not suppressed the required information Besides in 1978 (at the relevant time) he was employed with the contractor of respondent and respondant has nothing to do with it. (Fourth)
Previous conviction does not relate to his moral turpitude but it is related to breach of peace.
Therefore his dismissal was unwarranted. (Para. 4, 6)
1980 PLC 969 ref.
For the Appellant: M. L. Shahani, Advocate.
For the Respondents ; Kamal Mansoor Alam, Advocate.
Date of hearing ; 29th August, 1985.
DECISION (Rtd.) Ali Nawaz Budhani, J.-This appeal is purported to be against the order of Sind Labour Court No. IV at Karachi, dated 5-11-1983, who dismissed the grievance petition of the appellant filed by him under section 15-A I.R.O. 1969,
1. The appellant is a Private Limited company which owns and charters tankers for transportation of oil/bulk cargo. The respondent, Saleem Hayat Khan was employed as an out door clerk-cum- typist. He was employed in the formative phase of the appellant company on ad hoe basis which need having been obviated, his services were no longer required and hence the appellant was constrained to consider termination of the respondent's services as simpliciter. Letter of termination was issued on 25-8-1983, which was duly received by the respondent. Subsequently, a cheque for the notice pay and other dues of respondent was plso forwarded to the respondent which was duly received by him, 0n
2. The contention of the learned counsel that the appellant had not been personally heard by the respondent before the order of his dismissal from service was passed hardly advances the appellant's case. The appellant never asked for being personally heard. He had been supplied with a copy of the report of the inquiry officer when be had been given notice to show cause against the proposed imposition of punishment of dismissal from service. He submitted his reply to the show cause notice which was duly considered by the Committee. In such circumstan es it cannot be said that he had not been given adequate opportunity of defending himself. Hence the order of his dismissal from service does not demand any interference from the Civil Court. This appeal is without any force and is dismissed with costs.
3.
4. Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service including disciplinary matter
2. The facts are that the appellant was a permanent workman of the respondents since 19-7-1981, and was working as Technical Attendant in Fabrication Shop (fCPB). During the period of employment, there was no complaint against the appellant and his service record was unblemished. On 20-1-1982, a chargesheet was served on him wherein he was required that he did not disclose the fact of his conviction in 1979 by a Summary Military Court under section 147/342 P.P.C., and this amounted, according t the establishment, to misbehaviour or misconduct. Board of enquiry was constituted and appointed Deputy Chief Engineer as the enquiry officer. On 19-9-1982, the appellant was dismissed from service. He filed the grievance petition which was not allowed by the Labour Court.
3. The respondents denied the allegations of the appellant and said that he did not mention about his previous conviction in the proforma of Questionaire and that he supressed the important fact and, therefore, is liable to be punished under Standing Order 15(3) etc., of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
4. I have heard Mr. M. L. Shahani and Mr. Kamal Mansoor Alam and have gone through the enquiry proceedings. I have perused the biodata in the nature of Questionaire There is no column in the Questionaire regarding his previous conviction. His previous employment are from 1974 to 1975 Cashier in Habib Bank from 19[7]6 to 1977 Fabricator with Contractor of Ar^b Fertilizer ; and from 1978 to 198l, he was with a Contractor of PASMIC. But, in these details no column relates to previous convictions or to previous antecedents In fact he has admitted in his evidence that he was convicted by a Summary Millitary Court in 1979 for an offence under sections 147 and 342 P.P C. The contention of the establishment is that he wilfully supressed this fact from the establishment.
Nowhere in the Questionaire or in Biodata any column exists of his previous conviction and as such the appellant has not supressed the required information. Besides in 1978 hp was employed with the contractor of Pakistan Steel and Pakistan ste-1 has nothing to do with it. The Standing Order 15 3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, enumerates the offences which are as under !- "l5-Punishments :-
(3) The following acts and comissions shall be treated as misconduct :-
(o) wilful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior.
(6) theft, fraud, or dishonesty in connection with the employer's business or property ;
(c) wilful damage to or loss of employer's goods or property ;
(d) taking or giving bribes or any illegal gratification :
(e) habitual absence without leave or absence without leave for more than ten days ; (/) Habitual late attendance ;
(g) Habitual breach of any law applicable to the establishment; (/>) riotous or disorderly behaviour during working hours at the establishment any act subversive of discipline ; (0 habitual negligence or neglect of work ;
(J) frequent repetition of any act or omission referred to in clause (i);
(fc) striking work or inciting others to strike in contravention of the provisions of any law, or rule having the force of law ; (/) go-slow.
5. I have seen that he has not committed any offence within the purview of Standing Order 15 also.
There is, however, one Judgment of this Tribunal headed by Mr. Justice (Rtd ) Z. A. Chanaa, reported in 1980 P.L.C, at page 969. The relevant portion of the same is as under :- "Standing Order 15, as contained in the West Pakistan Industrial and commercial Employment (Standing Orders) Ordinance, 1968, specifies in detail the acts which are considered to be misconduct for the purpose of the said Order. In my humble view, clause (3) of the said Order is exhaustive of the acts which amount to misconduct for the purposes of the said Order, and any act not falling within its purview would not be deemed to be misconduct for the purposes of the said Order and consequently would not entail punishment of dismissal. As the act for which the respondents were convicted and sentenced by the Mattial law Authorities do not appear to fall within the ambit of misconduct as specified in clause (3) of Standing Order 15, the punishment of dismissal could not be awarded to the respondents under the Standing Orders,"
6. I would like to summarise the facts and arguments in this case. The Questionaire does not contain any column for previous conviction, therefore it cannot be said that the appellant supressed his previous conviction. In fact in evidence he has admitted it. It shows his truthfulness.
No fraud is peritrated. In fact, there was no fraud. The facts as given in the evidence and in the enquiry report mention that he was employed for the years 1978 to 981 with the Contracto of PASMIC, and as such there is no obligation to mention his previous conviction. Previous conviction does not relate to his moral turpitude but it is related to breach of peace. The information given to the authorities of the establishment is that one of the Engineer but it is not proved from the independent souses i.e. The Martial law Authorities However, the appellant has himself admitted.
This admission does not concern to his behaviour under Standing Order 15 of the West Pakistan Industrial and Comme cial Employment (Standing Orders) Ordinance, 1968, therefore, his dismissal was un-warranted. 7 K.L.R. 1986 Labour and Service Cases 61 I'Karachi] Present: (Rtd.) Alt Nawas Budhani, J.
MUJEEBUR REHMAN versus (MESERS) PAKISTAN CABLES LIMITED Appeal Nos. Kar. 65 and 66 of 1984, decided on 14th January, 1986 Industrial Relations Ordinance (XXXIX of 1969) ----- S. 25-A-Domestic enquiry -Dismissal on the ground that one appellant also punched the card of the other appellant and also attacked physically upon the Chowkidar-Evidence of domestic enquiry showing that the both appellants came together they belonged to rival unions the only thing proved by the prosecution witnensess or heartful atmosphere and throwing of Cigeratte packet-Held : this evinence is not sufficiart to establish the guilt against appellants- Further Held: the prosecution story is exagerated and no reliance could be placed in the alleged story and the defence story appears to be more plausible and the evidence of the General Manager is entirely false. No guilt is proved against both the appellants.
(Para. 6 & 8)
For the Appellants: Ali Amjad, Adoveate For the Respondents; M.A. Khan, Advocate Date of hearing : 8th September, 1985.
DECISION (Rtd.) Ali Nawaz Bhdhani, J.-The IInd Sind Labour Court at Karachi, dismissed the grievance petitions of the two above appellants on 19-2-1984. I wish to dispose of these two appeals by the single decision ds the facts emanate from the incident are same and the evidence is also similar.
2. The facts are that the two appellants filed two seperate grievance petitions under Section 25-A, IRO 1969, with regard to their dismissal from the service. The prosecution allegation is that on 7-12- 1982, in the' morning hours at about 7-00 AM; these appellants who are friends reached the gate of the factory. Appellant Shahanshah punched the card of appellant Mujeebur Rehman. This Was objected by the Chowkidar or Darban, one BadShah Khan. Over this punching of the eardi, there Whs a auarrell between the parties, namely, the two appellants and Badshah Khan. However, the other workers intervened and averted the situatibh. A domestic enquiry was held lief ore the enquiry officer, Mr. M. Arsbad. The allegations of the appellants are that they were active workers of the Collective Bargaining Agent union and that appellant Shahanshah had. _ filed a number of eases of malpractice against the management before the NIRC- The management had grudge against them and they Wanted to oust them out.
3. The stand taken by the respondents; namely, Pakistan Cables Limited, is that the two appellants were found guilty for riotous behaviduSi and illegally punching the cards against the rules of the establishment, ^ hence, they were dismissed. The charge was not false and the proper domestie enquiry was conducted. They denied all the allegations against them. The Manager of the establishment, on 6-3-1983, had called each of the appellants seperately and they confessed their guilt.
4. I have heard the arguments of Mr. Ali Amjad. The learned counsel of the appellants and Mr. MA Khan for the respondents I have further gone through the impugned orders and the content of the enquiry held by the respondents.
5. First of all, I would deal with the contentions of the appellants who said that the incident of punching the eards is entirely false and that appellant, Shahanshah had filed cases before NIRC and an application under secti n 34 of IRO 1969 on 12-8-i9sl. So far these cases are concerned, there is on record the documents, Exbt. R-3 and R-S, Exbt. R-5 pertaining to NIRC order of restrainin.
The establishment from changing the existing terms and conditions of workmen etc. This proves that Shahanshah did file certain cases against the establishment and there was some ill-will between the parties. This being the back ground, I would now advert to the inci lent as it occurred on 7-12-1982 in the morning at 7 O', clock. The enquir> report is before me. In the domestic enquiry, the evidence of Badshah Khaa was recorded on 31-12-192. In nutshell his evidence is that Shahanshah came at 7 00 AM; and he punched two cards. Badshah Khan enq lired from Shahansh h as to which the second card he has punched to which he said that he has punched the card of Mujeebur Rehman and this embittered the two parties and there was quarel and both Mujeebur Rehman and Shahanshah attempted physicallyto attack him but other co-workers intervened and seperated them. They abused also to Badshah Khan. The cross examination is of the same nature.
There is admission in cross examination th it Shahanshah and Mujeebur Rehman both came on one motor-cycle and that they belonged to seperate panel y during the elections of the union.
Badshah Khan admitted that on 24-1*1-1982 he filed a report against Shahanshah. At the time of quarrell Shahanshah carried nothing in his hand neither Danda nor knife. Badshah ) Khan further admitted in cross examination that none of the appellants caught hold of his colara nd also he denied that any portion of his body was touched by body of Shahanshah or Mujaebur Rehman. The next witness was Gul Shumal who stated that there was heated atmosphere at the relevant time and nothing more. His cross examination is same. In nutshall, that no portion of the body of Shahanshah or Mujeebur Rehman touched any portion of Badshah Khan. Next witness is Ghulam Hussain. He gave general narration of the quarrel and in cross examination he states that 1 he did not see the p inching of the card* nor he heard the abuses. It was only heated atmosphere because he was busy and he could not see the attack on Badshah Khan. After this, the evidence of Maqsobd Gul and Lal Zaman was recorded in which the witnesses have added one factor that Shahanshah was holding a cigeratte packet which he threw on Badshah Khan and Badshah Khan was also abused. Tnese are the prosecution witnesses on which the enquiry officer has relied upon. The enquiry officer jl has also recorded the evidence in defence of the witnesses of Ghulam Yaseen. Taj Muhammad and Munawar Zaidi. These witnesses do not support whatsoever the punching of the card and the abuses advanced on Badshah Khan.
6. Briefly, above is the evidence of the domestic enquiry. The prosecution witnesses, Badshah Khan and Gul Shunial have given a story which suggests only heated atmoshere. One witness gives additional fact of throwing cigeratte packet on Badshah Khan. There is a discripancy and contradiction in the evidence of prosecution while the witnesses in defence who also were present they do not support the story as narrated by the prosecution witnesses. They falsify the evidence of Badshah Khan and his three witnesses. The cross examination of the prosecution witnesses is very important and it shows that in fact a quarrel or heated arguments between Badshah Gul and Shahanshah took place but the punching of the cards by Shahanshah is not proved and it appears to be a false charge. This is clear from the witnesses of the defence. The analysis of the evidence shows on the whole that the punching of the cards is not pioved and Badshah Gul appears to have e^egerated the incident and no judicial mind will consider this evidence of the domestic enquiry to be proving the punching of the cards or the attack physically by the appellants on Badstiah Khan.
In my opinion, this evidence is not sufficient to establish the guilt against the appellants, Shahanshah or Mujeebur Rehman.
7. It appears that the enquiry report mostly relied upon the confession made by Shahanshah and Mujeebur Rehman before the General Manager. The words of General Manager are not reliable in view of the facts that he dictated that Shahanshah and Mujeebur Rehman were seperately called by the General Manager and were seperately interogated. Why Majeebur Rehman would state before the General Manager th t his card was punched by Shahanshah and how it is possible that Shahanshah would also say that he had punched the card of Mujeebur Rehman, when all along during the enquiry, they defended themselves and maintained that each one of them punched his individual card. What magic the General Manager had to elicit from the appellants that they committed the guilt when all along they denied in the enquiry proceedings. These are the reasons that I would not place reliance on the evidence of General Manager as regards the confession or admission of the guilt by the two appellants.
8. The result is that the prosecution story is exegerated and no reliance could be placed in the alleged story and the defence story appears to be more plausible and the evidence of the General Manager is entirely false. No guilt is proved against both the appellants. [8] K.L.B. 1987 labour tod Service Cams 68 [Lahore] Present I Muhammad Afzal Lone, J.
NATIONAL CONSTRUCTON LTD versus PUNJAB LABOUR APPELLATE TRIBUNAL Etc. Writ Petition No. 3389 of 1986. Decided on 17th November, 1986. Constitution of Pakistan, 1973. ----- Ait. 199 read with Industrial Relations Ordinance (XXIIIof 1969) S. 25 -A-Question of Limitation not decided by the tribunal-Writ Petition- Held I the question of limitation having been raised in appeal, it was obligatory for the Tribunal to have discussed and disposed of the same in accordance with law.-Needless to mention that the question of limitation is a vital issue and if the petitioner's plea is upheld, the grievance petitions shall be liable to be dismissed.-It is axiomatic that when a Tribunal fails to advert to an important issue raised before it during argument, the order passed by it without consideration of such issue, suffers from a grave illegality and can be removed through judicial review. (Para. 5)
For the Appellant: Shahid Saleem, Advocate.
For the Respondent No. 1 and 3 : Nemo. Respondent No. 3 Ch. M. Akram, Advocate.
Date of hearing ; 17th November, 1980.
Muhammad Afxal Lone, J.-This order shall dispose of WP No. 3388/86 and WP No. 3390/86 as common questions of law and facts are involved therein. It shall, however, remain on the file of WP No. 3389/86.
2. Precisely put the facts are that the respondents in both the cases were serving with the National Construction Limited the petitioner herein and their services were terminated. This termination was called in qustion by them under section 25-A of the IRO through two separate grievance petitions which were partly accepted by the learned Labour Court on 15-4-1986. Aggrieved by these orders, the petitioners went in appeal and assailed the orders of the Labour Court on a number of grounds including the one that the grievance petitions were barred by time.
3. The learned Tribunal in its orders dated 17-7-1986, impugned in this writ petition, did not advert to the question of limitation but considered other points and upheld the decision of the Labour Court.
Consequently, the appeals brought by the petitioners were dismissed.
4. We have heard the learned counsel for the parties and examined the available record. The order under challenge does not disclose that the question of limitation was argued before the learned Tribunal. However, Mr. Shahid Salim Advocate who represented the petitioner, before the Tribunal, has filed his affidavit that he specifically poined put to the Tribunal that the grievance petition, was, barred by time but in the impugned order, his this contention has been ignored. There is no counter affidavit. The aigument of the petitioner's learned counsel that the question of limitation, was, urged before the Tribunal, therefore, is entitled to weight.
5. The various submissions made on behalf of the petitioners, need, not be enumerated, for, the argument which floats at the surface is, that the question of limitation having been raised in appeal, it was obligatory for the Tribunal to have discussed and disposed of the same in accordance with law. Needless to mention that the question of limita- is a vital issue and if the petitioner's plea is upheld, the grievance petitions shall be liable to be dismissed. It is axiomatic that when a Tribunal fails to advert to an important issue raised before it during argument, the order passed by it without consideration of such issue, suffers from a grave illegality and can be removed through judicial review. Faced with this situation, learned counsel appearing for the respondent did not have much to defend the impugned order.
6 For the faregoing reasons, this writ petition is accepted, and the impugned order declared to have been passed without lawful authority and of no legal effect. Consequently the petitioners' appeals shall be treated as pending. The learned Tribunal shall dispose f the same afresh, in accordance with law and expeditiously preferably within a period of three months. The parties are left to bear their own costs and are directed to appear before the learned Tribunal on 3-12-1986.