DECISION This appeal by Pakistan Railways, Sukkur is directed against the order of the Sind Labour Court No. VII, Sukkur whereby the grievance petition of Haji Qaim Din was allowed and cancellation of his promotion was set aside with back benefits.
2. Respondent Haji Qaim Din was initially appointed as a peon in the year 1963 with the Pakistan Railways. Subsequently he was re-designated as Khalasi attached to Welfare Inspector Cooperative (Railways Sukkur). On 21-11-1994 the respondent was promoted as Record Sorter.
According to the respondent this order of promotion had taken effect and he actually worked as Record Sorter. One Irshad Ahmad, U.D.C. Was cited as a witness by the Pakistan Railways and he admitted in his cross-examination that Haji Qaim Din had actually been promoted as Record Sorter on 21-11-1994. His promotion was cancelled on 27-11-1994. This cancellation of the order was without notice and he was demoted on the ground that on reconsideration it was found that he did not possess the basic qualification of Matriculation. That for initial recruitment it is necessary that the candidate should be a Matriculate but after promotion of the person already is employment it is not imperative that this qualification should be there. That there were persons already in service as Record Sorters without possessing this qualification. The witness also admits that respondent Qaim Din used to perform work in the Office.
3. It is the case of the respondent that on 21-11-1994 he was promoted as Record Sorter and he resumed duty as Record Sorter on 23-11-1994 in Bills Section. D.S. Office, Sukkur but suddenly the promotion of the respondent was cancelled on 27-11-1994 without notice and without any justification. This fact of the promotion order having been implemented is not controverted by the appellant Railways by oral or documentary evidence. It is also admitted that the order of promotion was cancelled without notice to the respondent and without allowing him an opportunity to be heard.
4. Under section 21 of the General Clauses Act, 1897 power to make includes power to amend, vary or rescind orders but this rule is subject to the proviso or condition that the order could not be cancelled if the same had become effective and any locus poenitentiae was clearly at an end when the amending order was passed.
5. The rule enunciated in the above case was approved by our Federal Court in Shahbaz v. Crown wherein Shahbazuddin, J. Concluded: "Locus poenitentiae in law refers to the power of receding till a decisive step is taken. If a step is taken other considerations would arise, but if that step is yet to be taken, we see no reason to restrict the power to modify or cancel. "
In a Full Bench case of Lt. Col. G.L. Bhattacharya v. State PLD 1963 Dacca 422 it was observed: "The criterion as to whether there is a locus poenitentiae is not dependent upon the fact whether the prisoner has or has not been released. The crux of the matter is whether the order has been acted upon, that is, whether authority exercising such power has done that which is necessary for it to make the order effective When such a step has been taken the order was acted upon thereby conferring a right upon the prisoner. Therefore, the subsequent order of cancellation can have legally no effect whatsoever."
In the case of Farid Khan v. State PLD 1965 Pesh. 31 (Full Bench) Anwarul Haq, J. Who afterwards became Chief Justice of Pakistan wrote the judgment and observed: "Test for determining whether there is locus poenitentiae or not is to ascertain whether a decisive step has been taken in pursuance of the earlier order which is sought to be recalled for rescinded."
6. In the present case since the order of promotion was communicated to the respondent and he has actually been transferred on the new job the order could not be rescinded or cancelled without a show-cause notice and without allowing the respondent an opportunity to defend himself.
7. It has next been argued that since the respondent after his promotion was working in the Divisional Office, Sukkur as Record Sorter but was not a worker or workman as defined in section 2(n)(i) of Workmen's Compensation Act, 1923 Schedule. But what is material for the purpose of cancellation of the order of promotion is that when the order is passed the respondent was a Khalasi and then the order was cancelled. So his position as Khalasi is to be considered for the purpose of making and cancelling the order of promotion. On this point Mr. Ashraf Hussain Rizvi for the respondent has argued that as Khalasi it was the duty of the respondent to bring the Stores from the Cooperative Store to the office of Welfare Inspector.
8. For the reasons stated above the cancellation of the promotion order was neither legal nor valid and had no justification.
9. The judgment of the Labour Court, Sukkur is, therefore, maintained and this appeal is dismissed.