1. This appeal is from the order of the Labour Court who has re-instated the respondent in service without back benefits.
2. Gul Hassan, the respondent has filed appeal against the order of the Labour Court is not giving him back benefits and this appeal is filed by the Railways Department. I propose taking both appeals together and decide them by the same order.
3. The respondent was working as Assistant Station Master at Railway Station Padidan. He detained 5-up 'Tezro' train at Padidan Railway Station out of course and got 292 packages loaded in the train which resulted in 18 minutes detention of the train which was without plausible reasons. He again, on the same day detained 7-Up "Tezgam" and allowed loading 142 packages out of course due to which the train was late by 14 minutes.
4. For the above two allegations respondent was placed under suspension on 28-7-1979. He was served with a show-cause notice on 22-9-1979. He was removed from service considering the reply to the show-cause notice an unsatisfactory. Respondent then filed civil suit in the Court of Senior Civil Judge, Nawabshah which was dismissed on 13-3-1980. Thereafter, he, filed appeal against the order of Senior Civil Judge, Nawabshah in the Court of 1 Additional District Judge, Nawabshah which was also dismissed on 27-7-1980. He, thereafter, filed appeal before the Federal Services Tribunal which was also dismissed on 22-6-1983. He filed a Departmental Appeal which wasst dismissed on 15-6-1982. Thereafter, he served grievance notice and filed application under section 25-A, I.R.O. Before the Labour Court The Labour Court framed three issues.
5. (1)Whether the appeal filed by the applicant is time-barred?
6. (2)Whether the grievance notice and the grievance application filed by the applicant are time- barred?
7. (3)Whether the applicant has been illegally removed from the service?
8. As regards question of time-barred, the appellant was removed from service vide order, dated 8- 10-1979. He has claimed to have filed appeal, dated 19-10-1979 and has sent reminder, dated 26-1- 1981. He has been given reply of the decision of the appeal vide letter, dated 15-6-1982, in which the reference to his reminder, dated 26-1-1981 has been made but no reference to his original appeal has been made and no objection has been raised in the letter that he had not filed the appeal, dated 19-10-1979, which he has referred to in his reminder, dated 26-1-1979. From these facts, I find that the applicant has filed the appeal well within time and the decision has been taken by the competent authority on merits. Even if the appeal is filed after limitation and the decision is taken on merits the presumption is that the authority has condoned the delay and has decided the appeal on merits. But in the instant case applicant has referred to his previous appeal in the reminder, dated 26-1-1981 and the letter, dated 25-6-1982 indicated that decision has been taken on merits on the appeal of the applicant. Hence the appeal cannot be said as time-barred, consequently my finding on this point is in negative.
9. As regards grievance notice and grievance application, it is admitted position that the applicant has been removed from service vide order, dated 8-10-1979. Thereafter he has preferred appeal and the intimation of the decision on his appeal has been communicated to him vide order, dated 15-6-1982. In the meantime he has filed Civil Suit No. 288/79 in the Court of Senior Civil Judge, Nawabshah against the Order of his removal from service. His such suit was rejected vide orer, dated 13-3-1980. He has challenged the order of civil Court in appeal before the District Judge Nawabshah. The learned District Judge, Nawabshah vide his order, dated 16-9-1980 has held the applicant as Civil Servant and has issued directions to return him the plaint for filing the same before the Services Tribunal The applicant after such order, dated 16-9-1980 of the District Court has on 1-10-1980 filed petition before the Federal Services Tribunal Islamabad. The learned Chairman Federal Services Tribunal Islamabad vide Order, dated 22-6-1983 has held the applicant as workman and not as civil servant. After such decision, dated 22-6-1983 of the Federal Services Tribunal Islamabad the applicant has given grievance notice, dated 17-7-1983 and has finally come with the grievance application, dated 15-8-1983. He has also given application supported by affidavit for condonation of delay in this application. Now the question arises as to whether period spent by the applicant in seeking remedy through civil Courts and through Federal Services Tribunal, Islamabad is to be excluded from the period of limitation. Identical case has been discussed and decided by the Labour Appellate Tribunal Punjab in case of Chaudhry Abdul Hameed v. United Bank Limited reported in 1983 PLC 1180, wherein, it has been held that the period spent in wrong forum upto the date of start of proceedings in right-forum can be excluded. In the instant case also, it was complicated question of jurisdiction. The applicant had filed civil suit before he received the reply of decision on his appeal. The learned District Judge Nawabshah in his order, dated 16-9-1980, held, the applicant as civil servant and directed him to seek remedy through Service Tribunal. He filed petition before the Federal Services Tribunal, Islamabad vide his judgment, dated 22-6-1983 held the applicant as workman. Within one month from such order, dated 22-6-1983 of the learned- Chairman Federal Services Tribunal Islamabad, he has given grievance notice, dated 17-7-1983 and has filed the grievance application on 15-8-1983. In view of the legal as well as factual aspects of the case, discussed above, I find that the applicant is entitled to the exclusion of the period spent by him in pursuing his matter before the civil Courts and the Federal Services Tribunal Islamabad and as such his grievance notice given to the respondents and his grievance application are not time-barred. Hence, my finding on this point also in negative.
10. As regards his removal from service, the applicant was served with show-cause notice with the charges that on 27-7-1979 while on duty as Assistant Station Master from 16 hours to 24 hours he had detained 5-Up Tezro Railway Station Padidan out of schedule and had allowed loading of 292 packages and also on the same day he had detained 7-Up Tezgam out of schedule and had allowed loading of 142 packages. He has given reply to the show-cause notice, in which he has alleged that 5-Up and 7-Up were detained out of schedule at Railway Station, Padidan because the block instrument was not in working order due to failure of advance starter signal, therefore, he had issued PLC(Paper Line Clear) to the 5-Up and 7-Up train. The applicant has also denied the allegation of allowing loading of packages on the trains. The respondent has admitted in their reply statement as well in affidavit of Inayatullah, their witness, that the staff responsible as taken up under E&D Rules and awarded punishment according to the merits of each case. The applicant in para. 4 of the grievance application has stated that the Guards of the Trains, Station Master, Booking Clerk, Traffic Inspector and the Section Controller on duty in Control Office were also given show-cause notices for the same alleged misconduct and it has been admitted by the respondents also para. 5 of their reply statement. The main contention of the Advocate for the applicant is that no Departmental Enquiry in case of the applicant has been held and no opportunity has been awarded to him to defend his case before the order of his removal from service has been passed. The applicant in para. 6 of his grievance application has stated that after receiving his reply, no domestic enquiry was conducted and no opportunity, was provided to him to explain his position and ex parte action was taken against him by imposing major penalty on 19- 10-1979. The respondents in reply to this allegation of the applicant in para. 6 of their reply statement have stated that his explanation to show-cause notice was duly considered by the authorised officer and in view of the gravity of offence committed, which was established beyond doubt, the case was forwarded to the authority for imposition of major penalty and the authority after due consideration of the case removed the applicant from service. Inayatullah, the witness of the respondents in his affidavit has alleged that enquiry was held but he has admitted that the enquiry was held on 29-7-1979 and 30-7-1979, whereas the show-cause notice given to the applicant is dated 29-8-1979 about one month after the date of enquiry. He has also admitted in the cross-examination that the show-cause notice was given to the applicant after enquiry. From these B admissions of the witness of the respondents it is obvious that the Departmental Enquiry in the case of the applicant was not held. The enquiry if was held before issuing charge-sheet to the applicant was facts finding enquiry and it cannot take place of the Departmental Enquiry as contemplated under Standing Orders Ordinance 15(4). In view of these facts, I find that the respondents have failed to hold Departmental Enquiry in case of the application before passing the impugned order of his removal from service. Since the respondents have failed to comply with the mandatory provisions of the Standing Orders 15(4) before passing the impugned Order, I find that the impugned Order is not maintainable. I, therefore, set aside the impugned order and direct the respondents to re-instate the applicant in service. Since the applicant has dragged the respondent in civil Courts and in Federal Services Tribunal instead of directly coming to the Labour Court , relying on the authority reported in 1983 PLC 1279, I do not allow him back benefits under the circumstances of the case.
11. For the reasons shown above, I dismiss the appeal of Railway. The back benefits were not allowed by the Labour Court relying on the authority reported in 1983 PLC 1279. I find this reason is sufficient for not allowing the back benefits. The appeal of Gul Hassan for back benefits is dismissed.