1982 PLP 863 (PLC(CS))

Mahmood A. Ghani for Appellant. Mirza Muhammad Kazim for Respondent. Date of hearing: 16th February, 1982. The services of the respondent were terminated, vide letter, dated 16th June, 1979, on the ground of unauthorizedly remaining absent from his duties and failing to appear before the Bank doctor for necessary medical check‑up. Prior to the issuance of the said order of termination of services, a letter of charge, dated 7th February, 1979, alleging that the respondent was in the habit of availing leave without prior approval, that in spite of a number of instructions he had not cared to improve his attendance, and that he had been unauthorizedly absent from his duties since 21st January,. 1979, is stated to have been sent to the address of the respondent by registered post, A/D. The respondent preferred a depart mental appeal, dated 10th May, 1980, against the order of termination of his services. A copy of the said appeal is not on the record of the learned Labour Court, but the submission of this appeal is admitted by both parties. The appellant bank, by its letter, dated 17th January, 1981 on the appeal of the respondent made a conditional offer to the respondent, the terns where of were, firstly, that he would be re‑instated in service as Assistant on a basic salary of Rs. 350 par month, secondly, that he would not be entitled to any back benefits, and thirdly, that all other terms and conditions of his services would continue to be the same as before. The respondent, by his letter, dated 25th January, 1981, declined to accept the above offer of the bank and demanded that he should be taken back on his old job on the pay and allowances attached to that job and to which he was entitled. The appellant bank, in view of this reply of the respondent, wrote to the respondent, on 4th February, 1981 that as he had declined the offer made by the bank and failed to joins the duties within the period specified in the letter of offer of the bank, the proposal of the bank for his re‑instatement in service stands cancelled. The respondent thereupon served a grievance notice, dated tat March, 1981, on the appellant bank and as his grievance was not redressed, he took his grievance to the learned Labour Court on 15th March, 1981. The appellant bank resisted the respondent's grievance petition on the grounds, firstly, that the respondent's services were terminated after due process, secondly, that on the request of the respondent for reinstatement a conditional offer was made to him, which he declined to accept, and that thirdly the grie vance petition was liable to be rejected on the additional ground of limita tion. The learned Labour Court, vide, its decision, given on 14th October, 1981, rejected the contentions of the appellant bank and has directed the reinstatement in service of the respondent with full back benefits. Aggrieved by this decision, the appellant bank had come up in appeal to this Tribunal.

2. Mr. Mahmood A. Ghani, the learned counsel for the appellant bank, has assailed the decision of the learned Labour Court on the grounds (1) that as the grievance notice was served by the respondent and the grievance petition was filed by him beyond the period of limitation prescribed in section 25‑A, I. R. O., the grievance petition was not main tainable and should have been dismissed on that account; (2) that the conditional offer made by the appellant bank to the respondent, vide, their letter, dated 17th January, 1981, not having been accepted by the respondent, it was rightly withdrawn by the appellant bank and could not be made the basis of a grievance petition by the respon dent; and (3) that since the original order of termination of services of the respondent, dated 16th June, 1979, was not challenged by the respon dent either in his grievance notice or in his grievance petition, the learned Labour Court was not entitled to set aside the same.

3. Subsection (I) of section 25‑A,

1. R. O., prescribes a period of 3 months, commencing from the date when the grievances arises within which grievance notice is be served by the workman upon the employer. The grievance of the respondent was indisputedly the termination of his services. No doubt, the services of the respondent were terminated by the appel lant bank's letter, dated 16th June, 1979, but the respondent had pre ferred an appeal against the said order. It is true that this appeal was belated, having filed about 1 I months after the services of the respondent were terminated, but the appellant bank did not reject the appeal of the respondent on that ground and in fact entertained the same. Having entertained the appeal, it is not now open to the bank, to claim that the appeal, was time‑barred and, therefore, the time taken in filing and deciding the appeal cannot be excluded in computing the prescribed period for service of the grievance notice. A similar issue arose before the Lahore High Court in the case of Allied Bank (Pak.) Ltd. v. Punjab Labour Appellate Tribunal (1980 P L C 42). In that case also, as in the instant case, the employer had entertained a delayed appeal, rejecting the contention of the Allied Bank that the time spent in the appeal could not be excluded from computing the period of limitation in preferring the grievance petition, it was observed by the High Court as follows:‑ "So far as the limitation is concerned the petitioner itself entertained the appeal and after disposal of the appeal, the petition under section 25‑A, was within time. Therefore, it cannot turn back to plead its own wrong for denying somebody else the right due under the law. As the petition entertained the appeal and dealt with it so it cannot plead successfully that the time spent in appeal be ignored. The limitation will, therefore, start in this case from the date the appeal was disposed of and from that date the proceedings were initiated within time."

4. In the case gal‑ Haji Qadir Bux v. Province of Sind and others (Civil Appeal loo. 58 of 1979), decided by the Supreme Court on 3rd February, 1982, their Lordships of the Supreme Court, by majority, have held that for the purposes of computing the period of limitation for pre ferring an appeal to the provincial Civil Services tribunal, the time spent in the appeal to the departmental authorities is to be excluded. I would also like to refer to another decision of their Lordships of the‑Supreme Court reported as Rasheed Ahmad v. State (P L D 1972 S C 271). That was a case under the Pakistan Criminal Law Amendment Act and the question which arose before their Lordships of the Supreme Court was whether sanction for the prosecution of the accused before the Special Judge was necessary in view of the fact that he had been dismissed from service. The Supreme Court held that as the accused had preferred appeals against his dismissed from service and as these appeals were still pending, he was to be deemed to be still in service and sanction for his prosecution before the Special Judge was necessary. In view of the above decisions, the real grievance of the respondent arose when his departmental appeal was rejected and he was informed by the bank's letter, dated 4th February, 1981 that even the conditional offer of re‑instatement had been withdrawn. Even if the letter of the bank, dated 25th January, 1981 is considered to be the decision of the bank on the appeal of the respondent, the period of limitation, so far as the grievance of the respondent in res pect of the termination of services is concerned, would start from the communication to him of the said letter. As admittedly the grievance notice was served by the respondent on the appellant bank within 3 months of the said letter, dated 25th January, 1981 the grievance notice, in my humble opinion, was well within time. Similarly, the grievance petition, which was filed after 15 days of the service of the grievance notice, was in tune.

5. It is not necessary fur the purpose of deciding this appeal to con sider the conditional offer of re‑instatement in service made by the bank, by its letter, dated 17th January, 1981, and the rejection of the said offer by the respondent as his grievance notice of the respondent and his grievance petition are nor directed against the said offer but the termination of his services. In any, case since the offer of the bank was declined by the respondent, the offer is no more in issue.

6. Elaborating his arguments in respect of his cast contention, it was submitted by Mr. Mahmood A. Ghani that neither in his grievance notice tier in his grievance petition, the respondent has challenged the original order of termination of his services, slated 16th June, 1979, but has treated the withdrawal by the bank of its conditional offer as the termination of his services and has challenged the same. A perusal of the grievance notice and the grievance petition clearly show that grievance complained of by the respondent was the termination of his services by the appellant bank. In his grievance notice he has referred to the allegedly unlawful termination of his service by the bank's letter, dated 16th June, 1979 and has requested for re‑instatement in service. The more fact that he has claimed that the letter of the bank, dated 4th February, 1981 gave him a fresh cause of action does not mean that his grievance was not against his original termination of services. The very fact that in his grievance notice, he has claimed back benefits supports the view that his grievance was against the original termination of services. Similarly, in his grievance petition, he has prayed that his dismissal orders, be set aside and he be re‑instated with full back benefits, which would again mean that he was challenging the original orders of termina tion of his services which orders were re‑affirmed in appeal,

7. Coming to the merits of the case, I find that admittedly no enquiry as contemplated by the Efficiency anti Discipline Rules. as applicable to the employees of the bank, was held against the respondent. I have already referred to the fact that according to the appellant bank, a charge‑sheet, dated 7th February, ON, was sent to the address of the respon dent by registered post, A/ D. The receipt of this charge‑sheet, however, has been strongly denied by the respondent in his evidence before the learned Labour Court Mr. Mahmood A. Ghani attempted to argue that this charge‑sheet, which was sent ‑ by registered post to the correct address of the respondent, should be deemed to have been served upon the respondent, and in support of his contention, he sought to rel. upon the decisions of this Tribunal in the cases of Noor Muhammad V M/s. Shah Textile Mills Ltd. (1980 P L C 665) and Abdul Karim Khan v. Karachi Transport Corporation (1980 P L C 754). Both these decisions are based on the provisions of section 27 of the General Clauses Act, 1897. The presumption of service under said section, however, would only arise if the requirements of that section are fulfilled. These requirements are, firstly, that a document moat be pat in a cover on which the correct address of the person to whom it is to be despatched must be recorded, secondly, the correct postage stamps must be affixed on the cover, and. thirdly, the cover should despatched by registered post. In the instant case, neither the persona in the appellant bank responsible for the posting of the letters nor the postman who is alleged have delivered the letter at the address of the respondent was examined. Furthermore, the postal receipt in respect of the letter was not produced and the failure to produce this receipt was sought to be explained on the ground that it was not available with the management If the cover containing the charge. Sheet was in fact posted by the bark or one of its employees, there is no reason why the postal receipt should not have been available with the bank. An acknowledgement receipt bearing the address of the respondent has no doubt been produced but it has been admitted by Asif Hussain, Deputy Controller in take appellant‑Bank, that acknowledgement receipt does not bear the signature of the respondent. It is not even the case of the appellant dark that the signature is of some inmates of the house of the respondent. In the circumstances, no presumption can be raised under section 27 of the General Clauses Act that the cover containing the charge sheet must heave delivered to the respondent in due course of postal business. As it has neither been established that a charge‑sheet was served upon the respondent nor was any opportunity given to him so rebut the allegations against him, the orders of his termination of services, which are grounded in the alleged misconduct of the respondent, cannot possibly be sustained. I would, therefore, concur in the finding of the learned Labour Court that the respondent has to be re‑instated in service.

8. There remains the question of award of back benefits to the respondent. I have already referred to the face that the respondent took as much as II months to file his departmental appeal. This would seem to indicate at least gross negligence on his part in pursuing his case, if not actually acquising in the order of his dismissal. In the circum stance I am of opinion that the respondent would not be entitled to full back benefits. I would, therefore, scale down his back benefits to 50%.