1997 PLP 646 (PLC)

Ch. Bashir Ahmad for Railways. Syed Anwar‑ul‑Hasan Gilani for Respondent. Date of hearing: 4th April, 1997 By this single judgment, I shall be disposing of General Manager. Pakistan Railways, Lahore's appeal filed against Fazal Elahi (Appeal No.542 of 1993), and the other appeal with the reverse title (Appeal No. 604 of 1993), the matter being the same. In the course of the Judgment, the Railway Department shall be referred to as the appellant and Fazal Elahi as the respondent, as the main judgment is being rendered in Appeal No. 542 of 1993.

2. Learned Labour Court No. 2, presided over then by Haji Muhammad Akram Baitu, had, vide judgment dated 24‑10‑1993, accepted the grievance petition, filed under section 25‑A, Industrial Relations Ordinance, 1969, by Fazal Elahi, the respondent before him being the General Manager, Pakistan Railways, Lahore. Fazal Elahi's reinstatement in service was ordered 14 but without back benefits. He lays claim to the same, as, according to him, the back benefits have been withheld, without any justification, by the learned Labour Court. On the contrary, the Pakistan Railway has brought under challenge the validity/soundness of the decision of the Labour Court, reinstating Fazal Elabi in service.

3. Fazal Elahi was working as Assistant Station Master, Grade‑II, at Sahiwal, and was suspended, the allegation being that he did not wear his uniform on 20‑2‑1978. His plea is that it was a gazetted holiday, being Eid Melad‑un‑Nabi, and further that the uniform had not been provided to him over years. He submitted an appeal against that order before the Divisional Superintendent, Railways, Multan. He states to have never been intimated about the fate of his appeal, and it was for the first time, in the year 1985, that he came to know that the D.S. Multan had passed a favourable order and reinstated him in service, vide order dated 18‑7‑1978, Exh. R.6. He, however, could not report for duty, by reason of his ignorance about the aforesaid order` After about two months, an order about Fazal Elahi's removal from service, Exh.R‑4, was passed by the competent Authority, as he had not resumed duty and had remained absent over a long time. He states to have been representing to the Authorities, and on failure to get a favourable response, he served upon his employer a grievance notice Exh.P.4 on 28‑1‑1988, although the impugned order of his removal from service had been passed on as back as 9‑4‑1978. The notice was thus palpably time‑barred, and there is no force whatever in the employee's contention that no limitation runs against a void order, adding that the aforesaid order was void ab initio, as it had been rendered, without issuing any show‑cause notice to the employee, serving him with a charge‑sheet and making him to face a regular inquiry. The plea taken up by the Railway Department is that earlier a minor punishment, namely, his reversion from the post of Assistant Station Master to that of Signaller for a period of two years had been imposed on him and he had been required to report for duty forthwith. Letters were sent to him at his home address, but the same came back undelivered, in July and September, 1978, and the report was that he had left Pakistan and was living or doing some service in a foreign country. The Department, in these circumstances, was helpless.

4. Under F.R. 18, an employee, remaining absent from duty for a period of five years, would automatically lose service. Exh. R. 6 is the registered letter dated 18‑7‑1978, addressed to Fazal Elahi, intimating him that his punishment of removal from service had been reduced and a lesser penalty of his reversion to the post of signaller for a period of two years had been imposed on him. He was asked to report for duty immediately, as already said. Such an intimation was again sent to him as per Exh. R. 7, on 30‑7‑1978; but he failed to assume duty and had most probably disappeared, with a view to obviate the incidence of serving in downgraded capacity. I have come across a document dated 10‑4‑1978, Exh. R. 5, which is in the nature of a departmental appeal, addressed by Fazal Elahi to D.S. Multan, against the D.T.O's. order dated 9‑4‑1978. It shows that he had become aware of the incidence of his removal from service, and he had made grievance of the fact that he had not been served with a charge‑sheet, prior to such action by his superiors. Vide order dated 9‑4‑1978, Exh. R. 4, he had been removed from service, as previously stated. Exh. R. 2 reveals that he had received a show‑cause notice dated 30‑1‑1978 alright, but it pertained to his suspension from service. Show‑cause notice dated 30‑1‑1978, Exh. R. .1, had been issued to him, intimating him that he had been absent from duty since 8‑6‑1977, without sufficient cause, and was proposed to be proceeded against, under the Railways Rules, 1975. As he did not participate in the departmental inquiry, by submitting reply to the charge‑sheet, the proceedings were taken ex pane against him, but F.R. 18 fully justified the action against him. Learned counsel for the respondent has referred to rule 703(b), Pakistan Railways Personnel Manual, stipulating that punishments contemplated by F.R. 18 cannot be imposed without calling upon the employee to explain his position after serving him with a show cause notice. It is to be borne in mind in this regard that it had become practically impossible for the Railways to serve upon the employee or convey to him personally a show‑cause notice or a charge‑sheet, although the same had been despatched to him at the stated address. The reports came, as already said, that he was no longer available in the country. After return to the home‑land, he started making petitions/representations to different Authorities, right up to the President of Pakistan.

5. By referring to the document Exh.P.5, it has been urged by the learned counsel representing the employee that his case was being processed, having been referred to the Railway Board, the decision was awaited, and he was informed that he would be communicated the same, on receipt. It is to be noted that the chapter of Fazal Elahi's continuance in service had already been closed in the year 1978, and when he started re‑agitating his rights, on return to the country in the year 1988, he was told that his representations and requests would be considered in due course. It did not mean that he should expect a favourable reply. Thus, the contention that, as shown by the document Exh.P.5, his case for reinstatement was still under consideration, cannot be endorsed. Where is any correspondence between Fazal Elahi and the Authorities, having taken place, in that behalf, after his removal from service in April, 1978, over several years, 1982 onwards? Where had he remained during the period in‑between? After coming back to Pakistan, and realising that he had lost his service, he started making pathetic appeals and sentimental petitions, addressed to the higher Authorities of the Railways, the Minister for Railways, the Prime Minister of Pakistan and the President of Pakistan, but this was all in vain, as his services had already been terminated as required or commanded by the rules. It is highly implausible and indeed improbable that the employee, as he states, has been paying visits to different offices of the Railways and yet remained unaware about the order of his reinstatement in service, followed by another order of his removal from service, in consequence of his failure to resume duty as Signaller. He is endeavouring to make out a case of his complete unawareness about all these developments; but he cannot be believed and heard saying so. One is impelled to arrive at an inescapable inference that Fazal Elahi had purposely absented himself from duty for that long period. The learned lower Court has erred in holding that the grievance notice, as also the grievance petition, were riot time‑barred and that Fazal Elahi had not competently and lawfully been removed from service. Actually, even the jurisdiction of the Labour Court and the one functioning at Lahore was also open to serious exception. The mere fact that this Tribunal had remanded the case for final decision by the, Labour Court did not necessarily imply that competence of the Labour Court and of the one at Lahore had been endorsed. I would set aside‑ the impugned decision dated 24‑10‑1993 being based on surmises, conjectures, as also erroneous interpretation of law, coupled with incorrect appreciation of the relevant facts. The appeal is not without force and is allowed, although with no order as to costs.

6. Natural corollary would be that Fazal Elahi's claim to back benefits is also liable to rejection. His appeal filed for the purpose is, therefore, also dismissed. H.B.T./875/Lb.P Order accordingly.