1991 PLP (C (PLC(CS))

Dear Sir, (1) Please refer to your application, dated 24th February, 1986 addressed to the Managing Director, P.I.A.C. (2) The Management has carefully re-examined your case and regret to inform you that your request for reinstatement in the service of the Corporation cannot be acceded to. Yours faithfully, FOR PAKISTAN INTERNATIONAL AIRLINES CORP. (Sd.) M.R. KHAN, ADMIN. MANAGER FLIGHT OPERATIONS DEPARTMENT". The appellant then preferred this appeal on 17-6-1986 for setting aside the original order of termination of his service dated 14-2-1983 and the appellate order dated 15/18-tS-1986 and ordering his reinstatement in service of the PIAC as Captain DC-10, with all the consequential back benefits.

3. The respondents have resisted the appeal. They have taken preliminary objections that the appeal is time-haired and that the Tribunal has no jurisdiction in the matter as the impugned order was passed on 14-2-1983 when the appellant was not a `civil servant' for the purpose of invoking the jurisdiction of this Tribunal and the appeal was not maintainable in view of the provisions of Essential Services (Maintenance) Act, 1952, Their case on facts in the written objections is that the appellant made an application dated 11-2-1982 for three years leave without pay, while the order for his release from the Corporation service was already issued on 3-2-1982. They have not denied the other facts relating to the rejoining of the appellant in the PIAC service except the allegations that the undertakings were given by him under duress. Their contention, however, is that the appellant's services were terminated in accordance with the PIAC Rules and Regulations.

4. The learned counsel for the appellant has urged that almost all the facts stated by the appellant have been admitted by the respondents that the appellant was reinstated in service under order dated 25-8-1982 and he was put on the active job and there was no obvious reason for rescinding that order, abruptly by the impugned order dated 14-'2-1983, without issuing to him any show-cause notice, and the action of the respondents was not taken in good faith. On the other hand, the learned counsel for the respondents has laid emphasis on the legal objections that the appellant was not a civil servant when the impugned order was passed in the year 1983 as the PIAC employees were made civil servants for the purpose of the jurisdiction of this Tribunal with effect from 15-11-1984, when the PIAC Act was amended, and also that the appeal was time barred as the period of limitation started running from 15-11-7984 when this Tribunal assumed jurisdiction by the amendment of the PIAC Act with effect from 15-11-1984. He has also contended that the period of limitation did not stand condoned by the subsequent order dated 15/18-5-1986, as it was simply a reply to the appellant on a miscellaneous application and it was n t the appellate order.

5. The appellant was reinstated vide order dated 25-8-1982 reproduced below:- KARACHI AIRPORT NO: DFO/P-15604/82/689 DT. August 25, 1982. CAPT. ARIF HAYAT P-15604. Your resignation dated 29th December, 1981 was approved by the Management for the reasons you explained therein and accordingly you were released from 22nd February, 1982. On 25-5-1982, you submitted another application requesting the Management to allow you to withdraw the letter of resignation explaining the reasons therein. In view of the circumstances and as a special case, the Management is pleased to allow the withdrawal of resignation and by reinstating you- as Captain DC-10 from the date you will report for duties subject to the following conditions amongst other as under:-- 1(a) that the period from 23-2-1982 till your reporting for duty will be treated as leave without pay. (b) that you will serve the Corporation continuously for 5 years and during" this period you will not request for leave without pay. (c) that you will be placed at the bottom of the seniority list pertaining to the DC-10 Captains as todate. (d) that no subsequent representation whatsoever in this connection will be entertained. Please confirm in writing if it is acceptable and report for duty immediately. (Sd.) DIRECTOR FLIGHT OPERATIONS:' The appellant was retaken on duty as per rejoining report dated 26-8-1982, photostat copy whereof is Annex. `H' at page 18 of the memo of appeal. The impugned order of termination from service, reproduced above, was made on 14-2-1983. The appellant was actually put on the active job as Captain DC-10, as averred by him in paragraph 12 of memo of appeal, and admitted by the respondents at para 7 of the written objections. The appellant has alleged in paragraph 25 of the memo of appeal that the impugned order of termination of service was passed without affording him opportunity of showing cause against the action/and the respondents have not made specific denial of that fact and have made evasive statement that the facts stated in paragraph 25 of the memo of appeal are misconceived as the respondent was competent to terminate the services of the appellant at the relevant time. At the relevant time, the service of the appellant was regulated by the Regulations published in the Administration Manual of 1976. It was provided under Regulation 35-02-02 that an officer in Administration Pay Group, who was a permanent employee, could be discharged or his service terminated by the Corporation by giving him notice in accordance with Rule 35-01-02, which provides that an officer in Administration Pay Group VI and above wishing to leave the Corporation service had to give notice of one month if having 5 years service; of two months having above 5 and upto 10 years service; and of three months having service above ten years. In any case, requirement of notice was obligatory before terminating the services of an officer. Of course, it is provided under Rule 35-02-04 that the Corporation had a right to discharge an employee without assigning any reason if in the opinion of the Management he had been charged with and held responsible for repetition of any act or omission or acts or omissions in the performance of his duties and the decision so taken and implemented would be final and binding and would not be questioned. It was alleged at the hearing that the appellant had contravened the Flight Rules, while flying a DC-10 aircraft; he was awarded punishment by making him Co-pilot. Even if his services were to be terminated, there should have been such an explicit order but the order of his reinstatement could not have been rescinded with effect from the date it was made when the order had already been implemented and the principle of locus poenitentiae enunciated by the Supreme Court in the case of Pakistan v. Muhammad Himayatullah Farrukh (P L D 1969 SC 407) that the authority having power to make an order has power to undo it unless it has taken legal effect and certain rights have been created in favour of the beneficiary, but it cannot be withdrawn or rescinded once it has taken legal effect and certain rights have been created in favour of the individual. Thus, the impugned `termination order' dated 14-2-1983 was made without lawful authority.

6. The respondents have contended that the appellant could not invoke the jurisdiction of this Tribunal as the impugned original order was passed on 14-2-1983, whereas the employees of the PIAC were declared to be civil servants for the purpose of the jurisdiction of the Service Tribunal by the Pakistan International Airlines Corporation Act (Amendment) Ordinance, 1984, promulgated on 15-11-1984. Of course, the impugned original order was passed earlier than the jurisdiction of this Tribunal was extended to the employees of the PIAC; but the case of the appellant had not become past and closed chapter as the appellant had, in exercise of right of appeal provided under Rule 08-01-01, preferred a departmental appeal on 15-2-1983 and it had remained un-disposed of until the jurisdiction of the Tribunal was extended to the employees of the respondent PIAC, as aforesaid, and, therefore, the judicial forum for the appellant was only this Tribunal and nowhere else in view of the provisions of subsection (2) of section 3 of the Service Tribunals Act, 1973, providing that the Tribunal constituted under the Act shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of `civil servants' and the employees of the PIAC were declared as `civil servants' under the aforesaid amending Ordinance for the purpose of the, jurisdiction of this Tribunal. The appellant has also challenged the letter of the PIAC dated 15/18-5-1986 as the appellate order intimating him that his request for reinstatement was considered but it could not be acceded to. The appeal, therefore, does lie within the jurisdiction of this Tribunal. The other objection taken by the respondent PIAC is that of limitation. It is contended that the appeal riled on 17-6-1986 calling in question the original order dated 14-2-1983 is hopelessly time-barred. The appellant has, of course, challenged that order dated 14-2-1983 but on the basis of the order dated 15/18-5-1986 treating it as the appellate order. As stated above, the appellant did have the right of departmental appeal against the impugned order as per rules 08-01-01, and he did prefer departmental appeal on 15-2-1983 i.e. well within the period of limitation. He awaited decision on his departmental appeal and went on inviting the attention of the appellate authority to pass order thereon. Lastly, he approached the appellate authority by his application, dated 24-2-1986 and he was informed under letter, dated 15/18-5-1986 that his request could not be acceded to. The contention of the respondents is that the letter, dated 15/18-5-1986 was not an appellate order but it was just a reply to the miscellaneous application made by the appellant. Since the appellant's departmental appeal remained un-disposed of despite his repeated request: for its disposal, the letter dated 15/18-5-1986 informing him that hi; request could not be acceded to was deemed to be the order of rejection of his departmental appeal. That being the case, the appeal riled or 17-6-1986 was within the period of limitation of thirty days. The appeal is therefore, not barred by limitation.

7. For the reasons recorded above, the appeal is allowed and the impugned order dated 14-2-1983 and 15/18-5-1986 are set aside. The appellant shall be deemed to have remained in service all along and he shall be entitled to all the I benefits of service as such. No order is made for costs. M.Y.H./550/Sr.F Appeal allowed.