DECISION ' This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No, IV, at Karachi, dated 3-12-1990, whereby he dismissed grievance petition of the appellant holding the Labour Court has no jurisdiction and further that the grievance notice was time-barred.
2. I have heard Ch. Muhammad Ashraf Khan, learned Advocate for the appellant and Mr. Suhail Mahmud, learned Law Officer for the respondent and have also gone through the record and proceedings of the case.
3. The brief facts of the case are that the appellant was admittedly employed as Senior Technician by the respondent Corporation. He was involved in Custom Case with regard to gold smuggling for which F.I.R. Was filed against him. The respondents charge-sheeted him on 6-3-1989 but subsequently after notice of personal hearing ordered his removal from service vide order, dated 6-8-1989 under Regulation 88 of PIAC Employees (Service and Discipline) Regulation, 1985. He was given 90 days wages in lieu of notice. Aggrieved by this order, the appellant after service of grievance notice filed grievance petition before the learned Labour Court which was resisted by the respondent Corporation on the ground that the Labour Court had no jurisdiction and that it was barred by limitation and that order was passed by the competent authority in exercise of its powers under section 10(2) of PIAC Act, 1956 read with Regulation 88 of Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985.
4. It may be pointed out that PIAC Act, 1956 (hereinafter called as the `Act') was amended by Ordinance No, LID of 1984 whereby subsections (2), (3) and (4) were added to section 10 of said Act.
Under subsection (2) the respondent Corporation was given power to retire or remove from its service any person without assigning any reason after giving *him an opportunity of being heard and not less than 90 days notice or pay for the period by which such notice falls short of 90 days and which order of retirement or removal subject to subsection (3) could not be called in question before any Court or Tribunal or other Authority. Under subsection (3) service of the respondent Corporation was declared to be Service of Pakistan for the purpose of Service Tribunals Act, 1973 (LXX of 1973). Under subsection (4) the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and the Industrial Relations Ordinance, 1969 were specifically made inapplicable in relation to the respondent Corporation or any of its employees. The aforementioned three subsections to section 10 of PIAC Act, 1956 were omitted by PIAC (Amendment) Act, 1989 which was notified under Gazette of Pakistan, dated 2-11-1989.
5. Under Regulation No, 85 of the Pakistan International Airlines Corporation Employees (Service and Discipline) Regulation, 1985 'every employee is entitled to appeal to the appellate authority from an order passed by a competent authority imposing upon him any penalty provided when penalty is imposed by an order of the Chairman the employee shall have no right of appeal but he may apply for review of the order.
6. The learned Labour Court has accepted the contention of the appellant that the order of removal from service was communicated to him on 27-8-1989. He could file the review petition within one month of this date. He claims to have filed review petition on 25-9-1989 which date is disputed by the respondents and which I will discuss later. However if his contention that he filed review petition on 25-9-1989 is accepted he would have the right to prefer appeal to the Service Tribunal within one month of receipt of reply to this review petition or after period of 90 days had elapsed of such date on which review petition was preferred. Anyhow his right to file the appeal before Service Tribunal survived upto and beyond 2-11-1989, when on 2-11-1989 the aforesaid subsections (2), (3) and (4) of section 10 of PIAC Act, 1956 were omitted by PIA (Amendment) Act, 1989 the result of which would be the restoration of the applicability of I.R.O., 1969 and Standing Orders Ordinance, 1968 to the respondent Corporation and its employees.
7. Mr. Sohail Mahmud has contended that because the order of removal was passed by the Chairman under Regulation No, 88 therefore no appeal or review could be filed against that order, in view of the provisions of Regulation No, 89 and section 10(3) of the PIAC Act, 1956. In support he has relied upon two unreported decisions of the learned Federal Service Tribunal in appeal No,13(K) of 1989 filed by Raziuddin Ahmed against PIAC and Appeal No,177(R) of 1989 in the case of Niaz Muhammad v. PIAC.
8. With due respect I am unable to agree with the view of learned Federal Service Tribunal that no review would lie against order of Chairman passed under Regulation No,
88. Regulation No, 89 provides that appeal would lie to the Federal Service Tribunal against the order of the Chairman under Regulation No, 88 which provision is in consonance with section 10(3) which declares every employee of Corporation as 'civil servant' for the purpose of Service Tribunals Act, 1973. Subsection 10(2) bars appeal against the order to any Court or Tribunal or other authority subject to subsection (3). However, it does bar review application to the Authority which passes the order.
9. I am further fortified in this view by the fact, that the aforementioned Regulations were framed by the respondent Corporation in 1985 viz. After the addition of subsections (2), (3) and (4) to section 10 in 1984. Regulation 85 which provides for appeal and review which has been reproduced above does not make any exception in the case of order of removal or retirement under Regulation No, 88.
An order of retirement or removal under Regulation 88 cannot but be considered as penalty and Regulation 85 gave the employee right of appeal of review from an order passed by competent authority imposing upon him any penalty. Use of word 'an' before 'order' and word 'any' before `penalty' would have wide connotation and would also include an order of penalty passed under Regulation, 88.
10. Therefore, in view of the above circumstances the appellant had right to file appeal before competent forum upto and after 2-11-1989. The question that now requires consideration is whether after the omission of subsections (2), (3) and (4) by Amendment Act, 1989 in which forum the appellant could have filed the appeal after 2-11-1989. This question was considered by this Tribunal in an un-reported case of Muhammad Saeed v. Pakistan International Airlines Corporation in Appeal No, KAR-236 of 1990, decided on 28-2-1991. This Tribunal observed.
"What is procedural law has been discussed in Bindra's Interpretation of Statutes, 7th Edition, page
645. The learned author has observed that word 'procedure' which is a term used to express 'the mode of proceeding by which a legal right is enforced as distinguished from the law which gives or defines the right, and which by means of the proceedings, the Court is to administer; the machinery as distinguished from the product. In other words the expression `procedure' means the manner and form of enforcing the law. According to Salmond, the Law of Procedure may be defined as "that branch .Of the Law which governs the process of litigation." It is also settled law that Procedural Law does not create any vested right. The bare reading of the aforesaid subsection
(3) of the amending Ordinance, 1984, would show that it provides for the forum and the procedure whereby an aggrieved employee of the Corporation could seek redress of his grievances. Service Tribunals Act, 1973 is a Procedural Law as it provides for the Forum and the manner in which the remedy could be secured by the aggrieved civil servant. Similarly the Industrial Relations Ordinance, 1969 and Standing Orders Ordinance, 1968 also contain some substantive provisions with regard rights of workman and also lay down the Forum and procedure for seeking redress of grievance by workman.
' In view of the above legal and factual position, the Labour Court would have jurisdiction to entertain the grievance application of the appellant after omission of subsections (2), (3) and (4) of section 10 of the Act on 2-11-1989."
11. This view also finds support from the decision of their Lordships of the Supreme Court in the case of the Chairman, PIAC and others v. Nasim Malik PLD 1990 SC 951. In that case respondent filed appeal against the termination of his service on 10-5-1986 before the Service Tribunal. An objection was raised that the service of the employee was terminated on 15-7-1984 and was conveyed through letter, dated 6-8-1984 when at that time Service Tribunal had no jurisdiction in the matter and also because provisions of section 10(2), 10(3) and 10(4) did not have any retrospective effect.
Their Lordships, however, held that on the day the appeal was filed, the above provision had come into force and as such appeal could not be filed in any other Court except the Service Tribunal, in view of section 10(3) read with clause (2) of Article 212 of the Constitution of Pakistan. Thus the date for determining the jurisdiction of appellate Court would be the date on which appeal was filed and not the date on which the termination order was passed. In the instant case the appeal could have been filed upto and even after 5-2-1985 by which time the jurisdiction of Labour Court had been restored and therefore Labour Court had the jurisdiction to entertain the grievance petition after 2- 11-1989.
12. The learned Labour Court has held that order of removal from service was served on the appellant on 27-8-1989. No cross objection has been filed against this finding of the learned Labour Court. I have already held that the appellant had a right under Regulation 85 to file review petition against the order of the Chairman. This review petition is dated 25-9-1989. The appellant claims to have sent it through registered post on 25-9-1989 which was received by the respondent Corporation on 26-9-1989. He has produced postal receipt Exh. A/1 and the acknowledgement receipt Exh. A/2, which is dated 26-9-1989 and bears the 'seal' of the respondent Corporation. The respondents claim that the review petition of the appellant was not received by them on 26th but on 21-1-1990 viz. After the expiry of period of appeal or reveiw. It is admitted by the witness of the respondents, that the address on the acknowledgement receipt is correctly shown. Presumption therefore, would be that the document sent under this postal A/D receipt was received by the respondent Corporation. The learned Labour Court, however, disbelieved the appellant on the ground, that the copy of the review petition does not show, that it was sent by registered post, therefore appellant might have sent some other document through the registered post. If there was any other document, that the appellant had sent under this registered post and A/D slip, it must be with the respondent Corporation, who could have produced the same but they have not produced such document. The fact that the review petition, copy of which is produced as Annexure 'D' to the grievance petition is dated 25-9-1989 and the postal receipt is also dated 25-9-1989, would support evidence on 'oath' of the appellant, that he had sent this review petition by registered post on 25-9-1989. The A/D receipt Exh. A/2 clearly shows that registered letter was receipt by the office of his respondent Corporation on 26-9-1989, therefore, review petition was within time.
13. The review petition was admittedly replied by letter, dated 21-1-1990 which is Exh. 'F'. However in the meantime on 2-11-1989, by Amending Act, 1989 Civil Service Tribunal ceased to have exclusive jurisdiction and the jurisdiction of the Labour Court stood revived. The appellant could, therefore, send grievance notice under section 25-A of I.R.O., 1969 to the employer within three months of the receipt of this letter, dated 21-1-1990. The grievance notice was admittedly sent on 14-1-1990 viz, before the receipt of reply to the review petition. If the date of first order viz. 6-8-1989 or 27-8-1989 is considered to be the date of cause of action the grievance notice, dated 14-1-1990 is obviously beyond three months and is time-barred. If, however, the review petition, dated 25-9-1989 is treated as grievance notice then grievance petition dated 13-2-1990 would be beyond the period of limitation prescribed under section 25-A(4). If the date of cause of action is taken to be 21-1-1990 when the review petition was rejected by the respondent Corporation, the grievance petition dated 13-2-1990 would be deemed to have been filed without grievance notice as required under section 25-A(1). In either of the three alternatives, the grievance petition would not be maintainable either on the ground that grievance notice was barred by limitation or the grievance petition was barred of limitation or the grievance petition was filed without serving grievance notice.
14. In view of the above factual and legal position the appeal stands dismissed.