' ZIA MAHMOOD MIRZA (CHAIRMAN).---This appeal is directed against the order of the learned Single Bench of this Commission, dated 611-1999 whereby the petition filed by the respondent under section 22- A(8)(g) of the I.R.O., 1969 to challenge his dismissal from service was accepted directing his reinstatement in service with full back benefits.
2. Facts giving rise to this appeal, briefly stated, are that the respondent joined service in the appellant-establishment as Senior Clerk on 9-7-1973 and was later promoted in March, 1977. During the course of his service, he was found to have misused the medical facilities extended to him by the appellant-Corporation. He was, therefore, served with a show-cause notice, dated 14-10-1982 requiring him to explain as to why action should not be taken against him for abusing the medical facilities. The respondent submitted reply to the show-cause notice denying the charge of excessive medical billing/abuse of medical facilities. The explanation submitted by him was not found satisfactory by the relevant authority and consequently he was removed from service on 8- 11-1982. Feeling aggrieved, the respondent filed a petition under section 22-A(8)(g) of I.R.O. Before a Single Bench of this Commission contending therein that the medicines used by him were prescribed by the Medical Officer and as such he had committed no offence but he was victimised on account of his trade union activities which was an act of unfair labour practice on the part of the management. This petition, it may be stated, was filed by the respondent on 25-9-1996.
3. The appellant-Corporation resisted the petition filed by the respondent by submitting a counter- affidavit wherein preliminary legal objections were raised to the effect that the application was hopelessly time-barred as it was filed 15 years after the alleged cause of action. It was also contended that the respondent's petition suffered from laches as he "failed to assert his right, if any, for year on end". Maintainability of the petition was also questioned on the ground that the jurisdiction of this Commission was wrongly invoked. On factual plane, the appellant Corporation in its 'Parawise Response" incorporated in the counter-affidavit controverted the respondent's allegation that he was victimized on account of his activities in PNSC Staff Union or that he was asked to disassociate himself from the CBA and sought to explain that the respondent was found to be abusing the medical facilities and was, therefore, served with a warning, dated 26-9-1982 to desist from such actions but he was found to be continuing with the abuse of medical facilities and, therefore, he was served with a show-cause notice, dated 14-10-1982 and subsequently after considering his explanation which was found to be unsatisfactory, he was dismissed from service vide order dated 8-11-1982. It was further stated in the 'Parawiase Response' that it was not only the respondent who was so removed, eight other persons who, too, were also found to be guilty of abusing medical facilities were also removed. It was pointed out by the appellants that the abuse of medical facilities by the respondent and other employees was on such a scale that the entire medical facility system of the appellant Corporation had to be changed vide Administrative Order No,19 of 1982, dated November 1st, 1982.
4. The record shows that the respondent filed his own affidavit as also the affidavit of his witness Riaz Ahmad in evidence and both of them were cross-examined. The appellant, however, did not file any affidavit in evidence. Be that as it may, after considering the evidence of the respondent, the learned Member held that the show-cause notice was issued to the respondent without prior approval of the competent authority and as such was void. As regards the question of limitation, the learned Member held that no limitation runs against the void order and in any case, since the petitioner was busy in a bona fide litigation in the same matter in the Courts which had no jurisdiction to deal with the case of unfair labour practice, he was entitled to the benefit of section 14 of the Limitation Act. The appellant's objection as to the jurisdiction of this Commission was overruled with the observation that the respondent's case was based on the allegation of unfair labour practice for which this Commission has the exclusive jurisdiction. With respect to the charge of abuse of medical facility, the learned Member found that the responsibility lay with the doctor who had prescribed the medicines and not on the respondent and in any case, major penalty of dismissal for such a charge was not called for. At the most, the excess amount could be deducted from the wages of the workman. As a result of these findings, the learned Member allowed the respondent's application holding that he is entitled to be reinstated in service with full back benefits. This was vide order, dated 6-11-1999, impugned in the present appeal.
5. We have heard the learned counsel for the parties at considerable length. In fact, the learned counsel appearing for the respondent was heard even at the preliminary stage before admitting this appeal to regular hearing. Learned counsel for the appellant has assailed the validity of the impugned order by contending that the respondent was removed from service on 8-11-1982 but he filed the petition to challenge his removal before the Single Bench of this Commission on 25-9-1996 which thus suffered from gross laches and was liable to be dismissed on this short ground. In support of his submission, learned counsel has placed reliance on Muhammad Raz Khan v.
Government of N.-W.F.P. And another (PLD 1997 SC 397) and Ashiq Ali v. M/s. Republic Motors Limited (1996 PLC 508). Next contention raised by the learned counsel for the appellant was that the respondent was removed from service on the charge of abusing the medical facilities and not on account of any of his trade union activities and as such he could not invoke the provisions of section 22-A(8)(g) of I.R.O. And the petition filed by him thereunder was not maintainable. To support his contention, learned counsel pointed out that although the respondent had alleged in his petition that his- removal was an act of unfair labour practice, he produced no evidence to substantiate this allegation and in any case, no definite finding has been recorded in the impugned order that the respondent was removed on account of trade union activities. Learned counsel summed up his submissions by contending that it was not a case of unfair labour practice and as such the respondent could not approach this Commission for redress of his' grievance. At best, he could have gone to the Labour Court to agitate his grievance under section 25-A of I.R.O.
6. Learned counsel for the respondent repelling the submission made on behalf of the appellant contended that the case of respondent was based on the allegation of unfair labour practice committed by the appellant and as such he had rightly invoked the jurisdiction of this Commission under section 22-A(8)(g) of I.R.O. Learned counsel referred to sub-para. (3) of para. 5 of the respondent's petition and pointed out that it was specifically averred therein that "the petitioner was just victimised on account of his healthy activities in the PNSC Staff Union, as the petitioner had been the member of the said CBA Union and management wanted to disassociate with the CBA which was refused by the petitioner". Learned counsel also pressed into service contents of the respondent's affidavit-in-evidence, dated 19-12-1996 and affidavit-in-evidence of his witness Riaz Ahmad, dated 23-12-1996 particularly para. 2 of the latter's affidavit wherein, it was submitted, the allegation of unfair labour practice on the part of the appellant was reiterated. Learned counsel pointed out that no counter-affidavit was filed by the appellant to controvert the affidavits-in- evidence submitted by the respondent. Learned counsel for the respondent also relied upon the findings of the learned Single Member recorded in para. 13 of the impugned order overruling the appellant's objection to the jurisdiction of the Commission with reference to unfair labour practice.As regards the question of limitation/laches, raised on behalf of the appellant, learned counsel for the respondent presumably relying upon the finding of the learned Single Member, submitted that the order passed by the appellant Corporation removing the respondent from service was void and no limitation runs against the void order. In support of this submission, reliance was placed on two cases reported in PLD 1958 SC 104 and 1997 M LD 2473. Learned counsel also placed reliance on 1987 SCM R 753 and submitted that in this case, delay of 2412 days was condoned by the Supreme Court of Pakistan. With a view to explain the inordinate delay in filing the petition before the Single Bench of this Commission, learned counsel submitted that the respondent had filed a civil suit on 7-11-1982 to challenge the action taken against him which remained pending for couple of years. An application was filed in that suit by the appellant seeking rejection of the plaint which was dismissed by the trial Court. The matter was then taken in revision and the High Court allowing the revision petition ordered the rejection of the plaint. The respondent approached the Supreme Court of Pakistan but without any success as his petition for leave to appeal dismissed by the Supreme Court on 1-2-1990: In the submission of the learned counsel, time spent in pursuing the civil litigation is liable to be excluded under section 14 of the Limitation Act and if the period is excluded, the petition filed by the respondent before the Single Bench of this Commission cannot be said to suffer from gross laches and in any case, the delay merits to be condoned.
7. We have given our anxious consideration to the submission made by the learned counsel for the parties and have also examined the evidence/material available on the record. It is an admitted position that the respondent was removed from service on 8-11-1982 but he filed the petition before the learned Single Bench of this Commission on 25-9-1996, i,e, 14 years after his removal from service. It is significant that the respondent even though filing the petition after lapse of 14 years, did not care to offer any explanation for this inordinate delay either in his petition or in his affidavitin-evidence and it was only during the course of his cross=examination that he disclosed that he had filed the civil suit in the Court of Senior Civil Judge, South No,13 to challenge his removal from service and further proceeded to state that the plaint in that suit was rejected by the High Court in revision and his petition for leave to appeal was dismissed by the Supreme Court of Pakistan. It may be stated that the respondent in his cross-examination admitted in the first instance that the Supreme Court gave the decision that the relationship between him and the appellant-Corporation was that of Master and Servant but the next moment, he volunteered to state that the Supreme Court had not given any decision but had dismissed his petition for leave to appeal for non-prosecution. He was confronted by the appellant's counsel with photocopy of the order of Supreme Court, dated 1-2-1990, which he admitted to be correct and it was placed on record as Exh.A.W.1/1. Perusal of the order of the Supreme Court quite clearly shows that the leave was refused to the respondent on the ground that the relationship between the parties being that of Master and Servant, respondent's prayer in the suit was not tenable and "Rejection of plaint does not call for interference".
' The learned Single Member, however, while dealing with the question of civil litigation which went up to the High Court and Supreme Court of Pakistan, observed in para. 10 of the impugned order that no copy of the proceedings or order was produced and therefore, "need not to discuss on that point". Nevertheless, he proceeded to hold in para. 12 of the impugned order that it was an admitted position that "the petitioner was busy in bona fide litigation in the same matter in the Courts which have no jurisdiction to deal with the case of unfair labour practice and therefore, benefit of section 14 of Limitation Act shall be given to the petitioner". The finding/observation of the learned Member that copy of the order in civil litigation was not produced was patently contrary to the record as the order of Supreme Court of Pakistan was placed on record as Exh.A.W.1/1. The learned Member was also in error in allowing the benefit of section 14 of the Limitation Act to the respondent. In view of the clear finding recorded by the Supreme Court in its order Exh.A.W.1/1 (which the learned Member overlooked/failed to examine) that the relationship between the parties being that of Master and Servant, the suit of the respondent was not maintainable and his plaint was rightly rejected, the respondent could not be said to have acted bona fide in prosecuting his suit in the Civil Court and as such, he was not entitled to claim benefit of section 14 of the Limitation Act. Assuming for the sake of argument, however, that the respondent could take any benefit of the time spent in pursuing the civil litigation, the delay of more than six years in filing the petition before the learned Single Bench of this Commission even after the dismissal of the petition for leave to appeal by the Supreme Court of Pakistan has remained totally unexplained.
Thus, viewed from whatever angle, the petition filed by the respondent before the Single Bench suffered from gross and unconscionable laches warranting its outright dismissal on this ground alone. Faced with this situation, the learned counsel for the respondent sought to fall back on the proposition that the limitation does not run against the void order. The proposition canvassed by the learned counsel is of no help to him for the reason that he could not satisfy us as to how the order dismissing the respondent from service could be said to be void. The dismissal order is shown to have been passed by the Board of Directors of the appellant Corporation after duly considering the allegations in the show-cause notice and reply of the respondent thereto. Needless to state that it was not the case of the respondent that the order removing him from service was passed by an incompetent authority or without giving him any show-cause notice. It may pertinently be pointed out that the respondent in his cross-examination accepted the suggestion that he "was removed from service on the basis of show-cuase notice, dated 14-10-1982 Annex. B to my application". He also admitted that he submitted his reply to the show-cause notice on 17-10-1982 Annex. B/1 to his petition.
8. Apart from what has been said above, the respondent who approached this Commission to challenge the order of his removal from service 14 years after it was passed and not even caring to offer any explanation worth the name for this inordinate delay in his petition or even in his affidavit- in-evidence cannot be permitted to press into service the aforementioned proposition so as to justify the gross laches as it would amount to putting premium on his extremely negligent conduct.
Reference may usefully be made to the following observations of the Supreme Court of Pakistan in the case of Muhammad Raz Khan cited by the learned counsel for the appellant:-- "Now looking to applicability of limitation against void orders question would naturally arise whether right of such person against whom an adverse order exists would be unfettered, ignoring established principles and would enjoy limitless discretion to knock the door of justice whenever desired by him; or same would be regulated by judicious norms. We earnestly feel that unless certain constraints apply against right of challenging void orders specially relatable to period of knowledge, the same may create complications leading to dangerous results. Principle of justice and fairplay does not help those who were extraordinary negligent in asserting their right and despite becoming aware of the alleged void order adverse to their interest remain in deep slumber. Therefore, according to our considered opinion, facility regarding extension of time for challenging orders cannot be legitimately stretched to any length of unreasonable period at the whims, choices or sweetwill of affected party. Thus, order termed as nullity or void could at best be assailed by computing period of limitation when he factually came to know about the same. When a person presumes that adverse order is a nullity or totally devoid of lawful authority and ignores it beyond the period specified by law of limitation, then he does so at his own risk."
' The case cited by the learned counsel for the respondent viz. 1997 SCMR 753 has no nexus whatever with the present case. Delay of 2412 days was condoned in the cited case for two reasons, firstly that the petition for leave to appeal filed in the Supreme Court of Pakistan was found to be in time from the date of the final order passed by the Division Bench of the High Court though time-barred when reckoned from the date of the judgment of Single Bench and secondly because the leave to appeal had been granted in the connected petition wherein similar questions of law were involved.
9. Next question arising for consideration in this case is whether the removal of the respondent from service was by way of unfair labour practice so as to attract the jurisdiction of this Commission under clause (g) of subsection (8) of section 22-A of I.R.O. Whereunder the respondent had challenged his removal and sought redressal of his grievance. The respondent had no doubt alleged in his petition filed before the Single Bench that he was victimised on account of his trade union activities and was removed from service when he did not disassociate from the CBA Union and refused to give up his union activities on the demand of the appellants but we find after appraisal of the relevant material available on the file that he could not substantiate this allegation. The plea taken by the respondent appears to be an afterthought as he did not take such a plea in his reply to the show-cause notice which fact he admitted in his cross-examination by stating that he did not specifically mention in his reply to the show-cause notice that he was being victimised due to his trade union activities. On the contrary, the plea which the respondent took in his reply to the show-cause notice was that contemplated action (of his removal from service) was being taken against him and four other employees due to "some underground politics" as they unfortunately happened to be Sindhis. This plea the respondent reiterated in his statement as a witness before the Single Bench when he admitted in cross-examination "I have not specifically mentioned in my reply to show-cause notice that I was being victimized due to my union activities" though he further proceeded to state as if by way of explanation "but in para. No,10 of my reply to show-cause notice, I have mentioned that I was being victimized due to underground politics which implies trade union activities". It may pertinently be observed that the meaning which the respondent sought to give to his plea of 'underground politics' apart from being preposterous is' clearly contrary to what he had categorically stated in his reply to the show-cause notice. Quite evidently, what the respondent meant or intended by the plea of underground politics was that he and his colleagues were being victimized on account of being Sindhis, that is to say, his removal from service was motivated by ethnic considerations. Not only that, the respondent had also admitted in his cross-examination that he was not an office-bearer of the union and stated he was an active member of the union and his subscription was deducted. He also admitted in cross-examination that he had no document to show that he had made any demand regarding the workers from the management of the appellant-company. Similarly, the respondent's witness and his dismissed colleague Riaz Ahmad also stated in his cross-examination "it is not in my knowledge that the petitioner in writing had made complaints to the management about grievances of the staff workers". In the face of these statements, could the respondent legitimately and reasonably claim that he was an active member of the trade union? It appears that he was just an ordinary member of the union whose subscription was deducted from his salary.
10. It is submitted by the learned counsel for the appellant and rightly so that the respondent had not produced any satisfactory and cogent evidence to substantiate his allegation that his removal from service was the result of his trade union activities of which he furnished no specific details/instances. It has been further contended that the learned Member did not record any definite finding on this aspect of the matter. This contention is amply borne out from the perusal of the impugned order, in para. 13 whereof it has been simply observed by the learned Member that the instant case was based on the allegation of unfair labour practice falling within the ambit of section 15 of I.R.O., 1969. The learned Member may be right in observing that since the respondent had made allegation of unfair labour practice in the petition, he had the jurisdiction to take cognizance thereof and to proceed with it. The fact, however, remains that the learned Member did not give any categorical finding as to the impugned action being the result of unfair labour practice as he did not point out any instances of the respondent's trade union activities. In fact, the respondent and his witness Riaz Ahmad, in their affidavits-in-evidence did not cite any specific instances of the respondent's trade union activities. On the contrary, the respondent and his witness Riaz Ahmad when cross-examined could not give any tangible proof of the trade union activities of the respondent. When questioned, both of them had to state that there was nothing in writing to show that the respondent ever took up/raised the demands/grievances of the workers with the management. In the circumstances, the learned Member had no evidence before him to support his so-called finding/observation. Needless to observe that in the absence of any evidence clearly pointing out the specific activities of the respondent as a trade unionist which could have possibly caused extreme annoyance to the, appellant, it could not be legitimately claimed that the removal of the respondent was the result of his trade union activities. In other words, the removal of the respondent from service cannot be held to be an act of unfair labour practice so as to attract jurisdiction of this Commission. The learned Member does not appear to have addressed himself to this vital aspect of the matter with the result that he failed to record any clear and definite finding that the removal of the respondent from service was motivated by any of the consideration specified in section 15(1) of I.R.O. It may pertinently be observed that the jurisdiction of this Commission is confined only to the cases of unfair labour practice, that is to say, its jurisdiction is attracted only to those cases where the management in taking the impugned action is motivated by any of the considerations specified in section 15(1) of the I.R.O., 1969. The Commission is not concerned with mere illegalities/irregularities of the impugned action which is the function of the Labour Courts acting under section 25-A of I.R.O., 1969. Thus, even if it be assumed for the sake of argument that the respondent's removal from service was tainted with any illegalities as observed by the Single Member in his impugned order, that per se would not justify setting it aside unless it was established on record that his removal from service was motivated by any of his trade union activities as the Commission's jurisdiction can only be invoked/exercised in cases involving an element of unfair labour practice.
' Upshot of the above discussion is that the impugned order of the learned Single Member is unsustainable in law. We accordingly allow this appeal, set aside the impugned order of the