' This is an appeal from the decision of the Punjab Labour Court No, 6, Rawalpindi, dated 24th of August, 1992, whereby the grievance petition filed by the appellant was dismissed.
2. The appellant was employed with the Pakistan Railway as a Skilled Machinist. He was removed from service with effect from 22nd of November, 1990 vide order, dated 24th of November, 1990 (Exh. R-8) on the ground of unauthorized absence from duty with effect from 22nd of October, 1989.
3. The case of the appellant was that on 17th of September, 1989 he applied for leave for three days from 19th of September, 1989 to 21st of September, 1989 vide application (Exh. P-1) mentioning therein his address of Lahore during the leave. The leave was sanctioned. On 21st of September, 1989 he sent a telegram (Exh. P-2) from Lahore requesting for extension of leave for one month. The leave too was granted. On 16th of October, 1989 and 14th of October, 1990 he submitted two applications (Exhs. P-3 and P-4) from Lahore requesting for further leave for one year from 22nd of OctobLr, 1989 to 21st of October, 1990 and for four months from 22nd of October, 1990 to 21st of February, 1991. In these applications also, he mentioned his address of Lahore. He did not receive any intimation that his applications had been disallowed. He, therefore, assumed that the leave applied for by him had been sanctioned. Meanwhile learning that a notice regarding his absence had been published in the Daily Jang, Rawalpindi, he attempted to resume duty but he was told that he had been removed from service vide order, dated 24th of November, 1990. On 10th of February, 1991, therefore, he submitted an appeal (Exh. R-9) to the Divisional Superintendent, Pakistan Railways, Rawalpindi requesting for his reinstatement in service. This appeal was turned down vide order, dated 2nd of April, 1991 (Exh. R-10). In the month of April , 1991 he submitted a second appeal (Exh. R-11) to the General Manager, Pakistan Railways, Lahore with the same prayer.
This appeal too met the same fate vide order, dated 20th of June, 091 (Exh. R-12). On 29th of July, 1991 he served a grievence notice (Exh. P-8) on the respondents. The respondent responded this notice unfavourably vide reply, dated 7th of August, 1991 (Exh. P-13). In these circumstances, on 17th of August, 1991 he filled a grievance petition assailing his removal from service. He alleged that since he was not served with any notice at his Lahore address and no inquiry was held against him, his removal from service was against the principles of natural justice.
4. The respondents contested the grievance petition. They alleged that since the appellant failed to resume duty in spite of notices sent to him by post and published in newspapers, his removal from Service was justified even without inquiry. It was also pleaded that the grievance notice and the grievance petition were barred by time.
5. The appellant, in support of his grievance petition, examined himself as P.W.
1. In rebuttal, Nasir Khan, an Upper Division Clerk entered the witness-box as R.W.
1. After appraising the evidence, the learned Labour Court held that the grievance notice and the grievance petition were within time but since the appellant failed to resume duty in spite of notices, his removal was justified even without inquiry. Accordingly, his grievance petition was dismissed.
Hence this appeal.
6. I have heard learned counsel for the parties and perused the record. Learned counsel for the respondents has argued that since the grievance notice, dated 29th of July, 1991 (Exh. P-8) was served on the respondents after the expiry of more than three months from 24th of November, 1990, the date of the removal order, it was barred by time. The appellant had submitted first departmental appeal (Exh. R-9) to the Divisional Superintendent, Pakistan Railways, Rawalpindi against his removal on 10th of February, 1991. He was intimated on 2nd of April, 1991 vide letter (Exh.
R-10) that his appeal had been considered by the Divisional Superintendent, Rawalpindi and 'regretted'. He submitted a second departmental appeal (Exh. R-11) to the General Manager, Pakistan Railways, Lahore in April, 1991. He was informed on 20th of June, 1991 vide letter (Exh. R-12) that his appeal had been considered by the General Manager (Personnel) and 'regretted'. The grievance notice (Exh. P-8) was admittedly sent on 29th of July, 1991 within three months from the issuance of the letter, dated 20th of June, 1991 (Exh. R-12). According to law, if a belated appeal by an employee against his dismissal is dismissed not on the ground that it was time-barred or incompetent but on merits, the grievance notice and the grievance petition, having been served and filed by him within time from the date of dismissal of his appeal, are not barred by limitation.
For this view, reference may be made to Allied Bank of Pakistan v. Punjab Labour Appellate Tribunal etc. (1980 PLC 42), Muhammad Yousuf v. Member, Board of Revenue and others (1970 SCM R 170) and Secretary to the Government of the Punjab, Excise and Taxation Department v. S. Safdar Hussain 1986 SCM R 1213). If an employee submits a second appeal/representation and it is dismissed on merits and not on the ground that the same was not competent, the delay occurred by its prosecution is condonable. In this connection, reliance may be placed on Israr Ahmad Khan v. Government of N.-W.F.P. And others (1990 SCM R 1356). In these circumstances, the grievance notice and the grievance petition, having been served and filed within time from the rejection of the second appeal, are not barred by limitation. Accordingly, the finding recorded by the learned Labour Court on this controversy is upheld.
7. On merits also, the case of the appellant is not without substance. AS mentioned above, the appellant in his first application (Exh. P-1) for leave for three days from 19th of September, 1989 to 21st of September, 1989 had clearly mentioned his address of Lahore during the leave. Even first telegram (Exh. P-2) for extension of leave for one month was sent by him from Lahore. The respondents admittedly did not send him any notice at his Lahore address. T.Hey sent charge- sheet (Exh. R-2) and notice (Exh. R-6) intimating imposition of penalty of removal from service at his Azad Kashmir address. In the show-cause notice published in the newspapers (Exhs. R-4 and R- 5) his Azad Kashmir address was mentioned. Adm,ttedly, no inquiry, even ex parte, was held against him. In these circumstances, since the legal formalities which are sine qua non to the imposition of a major penalty, were not observed in this case, the order, dated 24th of November, 1990 (Exh. R-8) removing the appellant from service offended against the principle of audi alteram partem and was clearly unsustainable. Therefore, the finding recorded by the learned Labour Court on this controversy is reversed.
8. For the foregoing reasons, this appeal is accepted, the impugned decision is set aside and accepting the grievance petition of the appellant, the respondents are directed to reinstate him in service. However, the appellant will not be entitled to back benefits for the reasons that he did not allege in his grievance petition that he remained jobless since his removal from service and that his grievance petition has been accepted on technical grounds.