' Zamirul Hasan, with a few other colleagues had litigation with the Railways over years, and the chequered history is depicted in this Tribunal's judgment dated 5-7-1989, delivered by my learned predecessor, Mr. Justice (Retd.) Abdul Ghafoor Khan Lodhi. It started in the year 1978 and twice it was dealt with by the Labour Courts, Punjab Labour Court No,2, Lahore (presided over by Ch. Bashir Ahmad), having given its verdict on 28-10-1984, and Punjab Labour Court No,3, Lahore (presided over by Ch. Muhammad Saeed), having delivered the decision on 12-4-1989 after the matter on 10- 7-1985 was remanded for re-decision by this Tribunal. Actually, even on interim scale, the applications for issuance of stay order were dealt with and disposed of by the Labour Court, as also by this Tribunal. I need not recapitulate the whole history of litigation here, as it finds ample mention in my learned predecessor's decision dated 5-7-1989.
2. Following the aforesaid decision (delivered on 5-7-1989), Zamirul Hasan, one of the affectees, filed a contempt petition, under section 38(5), read with section 25-A(8), Industrial Relations Ordinance, 1969, on as back as 26-7-1992, proceedings whereof have lingered on over a number of years, although on final analysis the matter has turned out to be one not involving much of complication. A number of Divisional Personnel Officers and Divisional Superintendents (Workshops), Mughalpura, Lahore were arrayed, by name one after the other, as the alleged contemnors, having allegedly failed to abide by the direction contained in this Tribunal's decision, dated 5-7-1989. Having been appointed, on ad hoc basis, in January, 1975, services of Zamirul Hasan amongst others, were terminated in April 1978; and the orders were challenged by way of a grievance petition, filed under section 25-A, Industrial Relations Ordinance, 1969, in the Labour Court. Stay order against cessation of service was granted by the Labour Court, and was vacated by this Tribunal. But ultimately, the orders of termination of services were set aside by the learned Labour Court and the employee was reinstated in service. The case was remanded by this Tribunal; but the learned lower Court re-issued the stay order which order was assailed in revision petition before this Tribunal; but outside the Court a compromise (R-1) was effected between the parties, and in consequence the order of reinstatement in service was kept intact, and the employee was given duty on 24-10-1984, without back benefits. There was break in service from 14-7-1982 to 14-10- 1984. Impugning the incidence of break in service, non-confirmation of post and non-delivery of back benefits, the employee once again filed a grievance petition and the same was dismissed on 12-4-1989 by the learned Labour Court.
3. The grievance petition was held to be time-barred. This Tribunal affirmed this view. The grievance petition having been filed on 6-6-1987 and the grievance notice having been given on 10-3-1987 and then on 11-5-1987, it was held by this Tribunal that only one valid grievance notice was contemplated by section 25-A(1), Industrial Relations Ordinance, 1969, and the first grievance notice having emanated on 10-3-1987, the grievance petition filed on 6-6-1987 must be treated to be time-barred. I would however differ with this view of my learned predecessor the reason being that it was a continuing wrong and the aggrieved person could impugn an act adversely affecting his service rights at any time during service. In para. 5 of the judgment, the grievance notice has been held to have rightly been addressed to the competent authority. This Tribunal (my learned predecessor) had categorically observed in the judgment dated 5-7-1989 that the employee could at any time lay claim to the relief of regularization of service. It has however strangely been said that, excluding the period of break in service, the plea of the employee for regularization of service must be treated to be in order, having been made in time.
4. Vide judgment dated 5-7-1989, this Tribunal had dismissed the employee's appeal as regards his prayer for being treated continuously in service and claiming back benefits, but, at the same time the Authorities of the Railways had been directed to regularise the service, according to the rules, excluding the period that had not been counted in service. This, I Must say, has given rise to an anomaly or a confusion, not understandable and implementable. The employee had himself signified his consent for not claiming arrears of emoluments, for the period, over which there was practical break in service. But how can such break create unbridgeable gap between the two periods of service, the one which preceded the break and the other that succeeded it. Service has, after all, to be treated continuous, nay it just be notionally, from beginning to its end, for otherwise, after the break it will be deemed to be an event of re-appointment in service, which incidence must not have been visualized by both the sides, while agreeing to certain period, in the course of service, being treated as break (14-7-1982 to 14-10-1984--two years and three months). Seniority also will depend on continuity in service. What does else regularization in service mean, if it is not reckoned from the very inception? One may forego his claim to salary etc. For a certain period, and the same may be treated as a period without pay, but it has to be taken into account, for the purpose of calculation of total length of service. Well, then, ostensibly, the entire span of service will have to be treated as a continuous one, while undertaking the whole exercise of determination of seniority and entitlement respecting regularization and confirmation in service, as also award of annual increments and further for calculation of pension, gratuity, etc. These service benefits have to be conceded and cannot possibly be declined, withheld, since otherwise there would be no sense in regularization of service of the employee's continuity in service (concurred in by this Tribunal). As such, when the employee makes grievance of the fact that this tribunal's decision dated 5-7-1989 has not been fully implemented and he has been placed at a manifest disadvantage or subjected to an irretrievable injury or a continuing wrong, the grievance cannot be treated as ill-based or a misconceived one.
5. Although basically it is interpretation of this Tribunal's verdict dated 5-7-1989 and I would prefer to interpret or translate it in a way that is more benign or beneficent for the cause of the employee or the lot of the workman. I can exercise even my review powers, but I do not think it is needed.
Magnanimous, any, same and correct construction is to be put on the wording an intent of the author, the judge, and of course express provisions of the statute and well recognized legal principles are not to be ignored or misconstrued. Every effort ought to be 'made to undo miscarriage of justice and advance large ends of fairplay; equity and justice.
6. Attention of the Court has also been invited to Fundamental Rule No, 54(2044), Pakistan Railways Personnel Manual, Volume I, where it is provided that period of unemployment between the employee's removal from service and his reinstatement should be treated as one spent on duty and counted for computation of leave due and award of increments, etc.
7. I would accordingly grant the prayer, couched in the contempt petition dated 26-7-1992, and voiced in the manner of a complaint by the aggrieved employee. This direction must be complied with and whatever falls due to the employee, in terms of his dues or arrears of emoluments, consequent upon conferment of seniority, award of annual increments and re-fixation of pay, must be parted with in his favour, magnanimously, without any amount of further delay.