AKBAR M. MEMON, MEMBER.-- Appellant hereinabove, who was working as Postman with the pensionary benefits under the orders of an official, who had no authority, as such, the very order dated 24.1.1988 is void ab initio and has no legal effect, In support of his contentions, he has. Placed reliance on 1985 PLC (CS) 711 and 1981 PLC (CS) 277. Continuing his arguments, he has contended that the birth date, which was recorded in the service book could not be suspected and in case of doubt, the documents produced by the appellant were to be considered or in the alternate the authority ought to have sent him to Medical Officer/Civil Surgeon for ascertaining the age, but this was not done in the case of appellant and on this point he has placed reliance on 1994 PLC (CS)
1305. He has further contended that the appellant had filed civil suit with bona fide intention, and the same continued till 1999, though on account of insertion of Section 2-A in the Service Tribunals Act, 1973, suit ought to have been abated on the prescribed date of 10.6.1997, but the suit continued till 1999, as such, delay in such cases has already been condoned. On this point, he has placed reliance on 1995 SCMR 584, 1995 PLC (CS) 1026, 1996 SCMR 856 and 2000 TD (Service)
76. Even otherwise, according to him, it is a question of monetary benefits particularly ttae pensionary benefits, it is cause of action, which recurs from day to day, as such, limitation would not come in the way of the appellant. He has also contended that admittedly the appellant joined the service of the respondent in the year 1962 and in case his birth date was 1931 then it was not possible for the respondents to have appointed him.At the age of 31 years and if at all it was so then his age must have been relaxed under the orders of the authority, but no such order has been placed on record by the respondents. He has contended that the appellant at the time of joining the service had placed on record his birth certificate and so also medical fitness certificate and it was the sole responsibility of the respondents to have kept all these documents intact and even the seniority lists of such incumbents must be available with the respondents, but they have not been able to produce any record, which could show that it was the act of the appellant who made such interpolation, whereby there appears overwriting in the birth date, In such circumstances, he has contended that it is a fit case where the order to correct the birth date issued by the respondent No. 3 be set aside and the respondents be directed to release his pension and gratuity on the correct date of 1941 instead of 1931 forthwith as the appellant has suffered .Right from 1988 till to- date.
4. Mr. Niaz A. Khan, learned Standing Counsel, who was present with Mr. Zafar Muhammad, Assistant Director, had not been able to controvert the arguments advanced by Mr. Ghouri. He has, however, contended that the appeal is time-barred, as such, it cannot be entertained. While going through the comments, he has contended that the appellant ought to have approached the Labour Court, but instead of doing so he went to a wrong forum by filing civil suit in the Civil Court.
He has lastly contended that it was the responsibility of the appellant to have produced such proof and when .The same was not produced by him, he has no case and the appeal is liable to be dismissed.
5. After hearing the arguments of learned counsel appearing for the parties, we have gone through 'the entire appeal file and so also the authorities cited by Mr. Ghouri.
6. ' It is an admitted fact that the appellant joined the respondents as "Mail Peon" on 20.4! 1962 and was subsequently promoted as Postman on 2.8.1986. In case his birth date, which is alleged to be 1.7.1931 is taken into consideration then we are of the view that it was not possible for the respondents to have appointed him at the age of 31 years. If it was so then the respondents ought to have produced such letter duty and obligation of public functionaries to redress the grievance of citizen with reasons-The impugned orders as well as order of departmental appellate authority dated 2.2.1988 are set aside meaning thereby the appeal filed by respondent No. 1 before Works Manager Steel Shop Pakistan Railway, Mughalpura, Lahore shall be deemed to be pending adjudication-For decision strictly in accordance with law-This writ petition is disposed of.
(Paras 3,4)
For the Petitioner: Taj M. Agha, Advocate.
For the Respondent: Tariq Shamim, Advocate Legal Advisor, Pak. Railways.
Date of hearing: 15th November, 2000.
, CH. IJAZ AHMAD, J-- The brief facts giving rise to this writ petition are that respondent No. 1 was appointed, as Naib Qasid. He remained absent from duty, therefore, charge-sheet was issued to respondent No. 1 and consequently his services were terminated vide order dated 20.1.1986.
Respondent No, 1 being aggrieved, filed appeal before petitioner No. 2 on 6.1.1988 which was rejected vide order dated 2.2.1988. The respondent No. 1 being aggrieved, filed petition u/S. 25-A of I.R.O, before Punjab Labour Court No. 3, Lahore at Ferozewala, who dismissed the same vide order dated 30.9.1989. Respondent No. 1 being aggrieved, filed appeal before Punjab Labour Appellate Tribunal, who accepted the same vide judgment datej 21.2.1990.
2. The petitioners' counsel submits that impugned judgment of Punjab Labour Appellate Tribunal is result of misreading and non-reading of record; that Punjab Labour Appellate Tribunal set aside the order of Punjab Labour Court without adverting to the reasoning of Labour Court; that Punjab Labour Appellate tribunal misread the record and impugned judgment is not sustainable in the eyes of law; that respondent No. 1 remained absent for two and half years. This fact was not noted and was considered by Punjab Appellate Tribunal; that respondent No. 1 did not send grievance notice to the petitioner well in time as prescribed under the provisions of I.R.O., 1969.
2. Respondent No. 1 supported the judgment of Appellate Tribunal that he did not receive the notice from petitioners. The notice for appearance was sent by petitioners at the residence of respondent No. 1 but he was mentally upset and at that time he was admitted in the mental hospital, therefore, he did not receive the notice from petitioners; that impugned judgment of Punjab Appellate Tribunal is valid and has given findings of fact against the petitioners after proper appreciation of evidence; that grievance notice of petition filed by him is within time as prescribed under the provisions of I. R.O., 1969; that Punjab Appellate Tribunal passed the order after proper appreciation of evidence.
In rebuttal, the petitioners' counsel submits that impugned judgment is not in accordance with law laid down by the Superior Courts, In support of his contention, he relied upon following judgments:- (1993 PLC 184) Younis Gill v. Mis, A.D.
Marker (Pvt.) Ltd., Karachi; '
(1993 P.L.C. 882), Abdu! Qadeer v.' Pak Railway, Karachi.-
3. I have given my anxious consideration to the contentions of learned counsel for the parties and perused the record. Both the Tribunals below-misread the record therefore judgments of the Tribunal below which a result of misreading and non-reading of record. It is admitted fact that respondent No. 1 filed appeal before Works Manager Steel Shop Pakistan Railway, Mughalpura Lahore on 6.1.1988 against his removal which was dismissed vide order dated 2.2.1988 which is as under:- "Your appeal dated 6.1.1988 against the order of removal has been considered by the appellate authority (ESW) Mughalpura and rejected."
The aforesaid operative part of order of departmental appellate authority reveals that the same was passed without applying independent mind, In fact the appellate authority countersign the order of removal, therefore, same is not sustainable in the eyes of law as is held in Ghulam Mohy- ud-Din's case (PLD 1964 SC 829). After addition of Section 24-A in the General Clauses Act, it is the duty and obligation of public functionaries to redress the grievance of citizen with reasons as the principle laid down in M/s. Airport Supports Company's case (1998 SCMR 2268).
4. In view .Of what has been discussed above, the impugned orders as well as order of departmental appellate authority dated 2.2.1988 are set aside meaning thereby the appeal filed by respondent No. 1 before Works Manager Steel Shop Pakistan Railway, Mughalpura, Lahore shall be deemed to be pending adjudication. Respondent No. 1 is directed to appear before petitioner No. 2 on 30.11.2000, who shall decide the appeal of respondent No. 1 strictly in accordance with law after providing proper hearing to respondent No. 1 within two months.
With the above observation, this writ petition is disposed pf. > . liVol.XXIlI P.S.I.C. Div. Staff Union V. P.S.I.C., Lahore L&S.C. 75 I (ljaz Ahmad Chaudhry, J.)