DECISION This appeal is directed against an order by the IIIrd Sind Labour Court at Karachi on 8-12-1984.
2. Muhammad Sarwar is a clerk employed in the appellant establishment, Pakistan Railways. The clerk Muhammad Sarwar was employed since 13-7-1965 in the Railways Department and he had also the requisite training at the Walton Training School, Lahore. Initially the respondent proceeded on leave for two months from 15-2-1978 to 15-5-1978. The condition of the respondent, Muhammad Sarwar deteriorated and further fell ill and, therefore, he could not resume duties due to protected illness. Dr. Rafique gave a certificate that the respondent was suffering from Koch's disease. Koch's disease is a disease of tuberculosis. On 13-12-1982, the respondent reported for duty after having obtained fitness certificate. He reported for duty on 13-12-1982 to the Station Master Humpyard Karachi. The station master forwarded the duty report to the Divisional Traffic Officer for further orders. However, the respondent could not get the posting order but was served with dismissal order, dated 30-8-1983. The dismissal order reads as "you are absenting yourself since 26-5-1978, without any intimation and authority, and as your absence period has exceeded more than 5 years, you ceased to be in service automatically under rule F.R. 18 with effect from 25-5-1983. This was the order, received by the respondent. The order was signed by the Divisional Personnel Officer.
The respondent preferred an appeal to the Divisional Superintendent Karachi who sent him a reply, dated 5-11-1983, to the effect that the respondent has already been removed from service. The respondent preferred a second appeal to the Chairman, Pakistan Railways Board, Islamabad, by his petition, dated 5-12-1983, which was not replied to. The. Respondent, therefore, filed the application under section 25-A, I.R.O. 1969, on 14-1-1984 for redressal of his grievances.
3. The appellants, namely, the Railways authorities raised a legal objection that the respondent was not a workman within the meaning of Labour Laws, therefore, his application was not maintainable.
It was contended further that the Application was time-barred. It was also contended that there was no right guaranteed or secured under any law was infringed hence the application was not maintainable. The denial was made that the respondent never intimated the Railways authority that he had fallen ill. It was also denied that the respondent reported for duty on 13-2-1982 to the station master, he said that the application was defective because no former notice was served under the Labour Laws.
4. I have heard both the Advocates, Choudhry Rasheed Ahmad and Akhtar Mahmood.
5. It is necessary to reproduce the F.R. 18 which reads:-- ---F.R.18. Unless the Governor-General in view of the Special circumstances of the case shall otherwise determine, after five years' continuous absence from duty elsewhere than on foreign service in Pakistan whether with or without leave, a Government servant ceases to be in Government employ.
Government decision-A question has been raised as to whether the provisions of F.R.18 are attracted in the case of a Government servant who remains under suspension for more than 5 years on account of departmental or Court proceedings pending against him. It has been decided that the absence rule does not apply in such cases as a Government servant, who is under suspension, has no independent volition to resume duty and cannot be said to be absent from duty with leave or without leave within the meaning of F.R.18.---
6. The F.R.18 consists of two parts. The first part relates to 5 year's continuous absence from duty excepting in cases of Foreign service. The Governor-General in view of the special circumstances of the case may otherwise determine it or else Government servant ceases to be a Government employee. The second part relates to the period of suspension. If the Government servant is suspended for more than 5 years, where it will be counted for remaining absent in which F.R.18 is applicable or that he will not be counted and that since he had not been volition. In nutshell the F.R.
18 simply provides that a Government servant who remains absent without leave for more than 5 years may be automatically seized to be a Government servant.
7. In the present case, the respondent has not remained absent for continuous 5 years but has reported for duty on 13-12-1982 to the Station Master, Humpyard and that he had been prevented from performing the duties as he was struck down by protracted illness known as Koch's disease i.e. Tuberculosis. It is a matter of common knowledge that tuberculosis is such a disease that it takes a long time to cure. It affects the vital parts like the brain, it renders the victim invalid for a considerable period. The respondent could not possibly perform the duties as certified by the Medical certificate. It was his fate and an act of God which the respondent suffered and for this, he should have been subjected to the domestic enquiry which is not done in this case.
8. The main contention of the, respondent was that he had reported for duty on 13-12-1982 before expiry of five years and the report was made to the Station Master, Humpyard, Karachi. Domestic enquiry was not done and, therefore, it appears that the impugned order of dismissal was illegal.
The facts also correspond to his filing Annexure 'A-1' which was his duty report made on 13-12-1982 to the station master. This document was shown to the witness of the appellant, Mr. Qamaruddin who admitted in cross-examination that Annexure 'A-1' was endorsed by the Station Master, Humpyard on 14-12-1982 to the Divisional Traffic Officer for necessary orders. It was, therefore, proved that the respondent did report for duty on 13-12-1982 or on 14-12-1982 to the Station Master, Humpyard. Mr. Qamaruddin further admitted that an employee after availing his leave and to report for duty to the officer under whom he was working on the date of proceeding on leave. The A respondent, as such, rightly reported for duty to the Station Master, Humpyard. Mr. Qamaruddin further states that in case an employee reports for duty after over-stay or absence, it is referred to the Personnel Department. The respondent was made compulsorily to wait for posting orders from 13-12-1982 onwards. The respondent should, therefore, be deemed to be on duty on or after 14-12- 1982.
9. The respondent proceeded on leave on 15-3-1978 obtaining annual leave for two months. He had to report for duty on 16-5-1978. The respondent fell ill as shown by Medical Certificate issued by Dr. Rafique B Ahmad who was a registered medical practitioner. The respondent sent leave application alongwith Medical Certificate as deposed by him.
10. It is really unusual that the provisions of F. R. 18 were resorted to in order to dismiss an ordinary clerk. The extreme provisions of C F. R. 18 could be resorted to in exceptional circumstances only.
The fact that the Governor-General had to determine special circumstances for action under F. R.
18, clearly indicated that use of F. R. 18 had to be made under very special and exceptional circumstances. Therefore, the extreme action under F.R. 18 was not justified in case of an ordinary clerk who had remained ill due to tuberculosis and had actually reported for duty to the concerned Station Master, Humpyard.
11. Now, as regards, the technical objections that the appellants contend that no grievance notice was served on them. This was not correct. The respondent has sent two petitions, one to the Divisional Superintendent, Pakistan Railways and the other to the Chairman of Railway Board. The grievance was clearly mentioned in the said petitions which would be deemed to be grievance petition or grievance notice. It is further objected to that the appeal is time-barred. .t was not so.
The departmental appeal made by the respondent was replied to on 5-11-1983, as per Annexure 'A- 6' to the application. The present application was filed in Court on 14-1-1984 within two months of the said reply. The petition was, therefore, in time. Moreover, the respondent had moved, an application for condonation of delay which the Labour Court had condoned the delay.
12. In the appeal, I am of the opinion that the impugned order of dismissal of the respondent was illegal and was made under miscalculation and improper judgment of not considering the report for duty on D 13-12-1982. As regards the back benefits the Railways Department as to consider various Railways Rules in an application of the back benefits. This appeal is therefore dismissed and the order of the learned Labour Court is accordingly maintained.