1. The appellant, Mr. Kafayatullah joined the Military Dairy Factory at Okara on 9-2-1970 as Weighman.
2. The appointment was temporary and non---pension able. A probation period of one month was specified with a provision that if no order was made by the day following the termination of the probationary period, "the appointment shall be deemed to be held till further orders." The services were liable to be terminated by the orders of D. M. V. & Fs. GHQ/ADMF, Okara at fortnight's notice or pay in lieu thereof.
3. The appellant was later transferred to the Military Farm, Campbellpur, and worked there till 26th August 1971, when he was discharged from service for the reason that "his services were no longer required by the department. An appeal submitted against this decision was rejected by the Deputy Director, Remount, Vet and Farms, GHQ Q M G's Branch, vide his letter dated 9th September 1974.
4. Consequently, an appeal was submitted to the Tribunal on 13th November 1975.
5. Representative of the respondent admitted that the Military Farm, Campbellpur, where the appellant was working at the time of discharge, was not a factory and therefore, the appellant was a 'civil servant' and not a workman. This is also borne out by the distinction the GHQ have made in respect of various farms. For example at Okara, there is a Military Farm and a Military Dairy Factory, while their installation at Campbellpur is known as "Military Farm".
6. The main preliminary objection of the respondent is with regard to the period of limitation. As mentioned above, the letter of the Deputy Director R. V. & F, rejecting the departmental appeal is dated 9th September. Giving an allowance of one week, the appellant may have received it by 16- 9-74, i. e. 27 days later than the admissible time limit of one month. The reason verbally given by the appellant for this delay is that being an illiterate person, he was not aware of the procedure to be followed for farther appeals, and "had approached the higher authorities in GHQ through representations hoping that he will not have to go to a Court of law, and that response to some of representations was still awaited."
7. Section 5 of the Limitation Act reads as under "Any appeal or application for (a revision or) a review of judgment or for levy to appeal or any other application to which this section may be made applicable (by or under any enactment) for the time being in force may be admitted after the period of limitation prescribed therefore, when the appellant or applicant satisfied the Court that he had sufficient cause for not preferring the appeal or making the application within such period."
8. Section 14(2) of the Limitation Act provides that "In computing the period of limitation prescribed for any application the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the same party for the same relief, shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it."
9. In addition, the Tribunal also noticed that while para. 6 of the appoint--ment letter dated 9-2-1970, stipulates that the services of the appellant were liable to be terminated by D. M. V. & Fs.
10. GHQ/ADMF, Okara, the actual notice of discharge was signed by AORV & F, GHQ, RWP LOG, Area.
11. Rawalpindi and the appeal against this discharge was turned down under the signatures of Deputy Director of Remount. This could have causedconfusion in the mind of the appellant or his advisors though further remedy withincould be available to listen to his grievances and he continued to knock at this door, in good faith. The decay of less than one month, we feel, can be condoned under the circumstances.
12. On merits, it seems that the appellant bad a trouble free career till June 1974, when e was sanctioned 15 days' casual leave to appear in the Intermediate Examination which was postponed, but the appellant, neverthe--less, availed of the leave. He again absented himself twice for a total period of 1974 4s days during July 74 on the same pretext of appearing in the examination. On both occasions the applications for leave were submitted, but the appellant left the station without sanction of leave. The Manager, Military Farm, Campbellpur, reported these irregularities to AD, R V & F HQ, RWP Log Acea, vide his letter dated 27th July 1974 suggesting that "disciplinary action should b-- taken against the appellant so that he may not leave the duty in future without obtaining the prior permission." The AD ITV & F, keeping in view the temporary nature of tire appellant's appointment, terminated his service on 26 8-74.
13. The appellant had served Military Farms for 4 years, and although his appointment was temporary and until further orders, he was expected to continue on his job, but for his 4J days' absence without proper sanction of leave which was reported to the Military Farms Directorate for disciplinary action. It was thus not a termination simplicitor on account of retrenchment of the post but a result of a proposed disciplinary act in. Instead of initiating the disciplinary action and conducting a regular enquiry as proposed by the Farm Manager, the Authority found it easier and more convenient to invoke the 14 days' notice clause of a temporary employment.
14. The judgments of the Supreme Court are available on a number of cases of this type. In case of Noorul Hasan v. Federation of Pakistan (PLD 1956 SC (Pak.) 331), it was held that "an employee holding an appointment indefinite in duration, although not in a substantive capacity, but expressly described as temporary, was also entitled to the Constitutional safeguards." It has been further observed that the final decision of the removal of the applicant which was taken without any proper enquiry was illegal and of no legal effect." The Service Tribunal had also decided m case of Bakht Zamin (Case No. 364(x) of 1974) who was a temporary employee, that since no enquiry was hold or, opportunity provided to the appellant to explain his conduct, termination of his services was void and of no legal effect. It is an established principle of justice that no one should be condemned unheard.
15. The Tribunal is accordingly of the view that the appellant be taken back to the post from which he was discharged. The Authority is at liberty to initiate a proper enquiry and to take disciplinary action against him, They can also decide, on the merits of the case and consideration of equity, as to what extent the appellant can be compensated for the period of absence from duty from 26-8- 74 up to the date on which it re-instated.