1988 PLP 312 (PLC)

Abdul Ghani Khan for Respondents. Facts as pleaded in this petition succinctly are that the applicant was appointed on 18‑9‑1972 as Cashier and then he was promoted as Officer Grade‑III. In this position also he used to perform duties of clerical nature viz. making entries in the relevant accounts books, preparation of accounts statements, maintaining ledgers and that he had no power of hire and fire and further that he never performed the functions or powers of the general attorney of the respondent. Accordingly, he claims himself to be covered by the provisions of Standing Orders Ordinance 1968. On 11‑2‑1984 he applied for three weeks leave on the ground of ailment of his mother. This leave was granted and so he proceeded to Karachi where unfortunately he fell ill and remained bed ridden for a substantial period. He accordingly submitted various applications for the extension of his leave by mentioning his address of Karachi for future correspondence. It has been pleaded that the respondent never replied his applications and so he was unaware if his leave was refused. He submitted two medical certificates, one dated 10‑7‑1984 and the other dated 3‑6‑1986 to substantiate his plea of illness. It has also been pleaded that in the month of June, 1986 he received one letter dated 3‑12‑1985 sent by the respondent which showed his termination. The applicant pleads that he was never charge‑sheeted nor any enquiry was ever held against him and so was condemned unheard, Finding this termination as mala fide and illegal he submitted departmental appeal dated 17‑9‑1987 which was rejected on 22‑1‑1987. He then preferred grievance notice dated 16‑2‑1987 and on its rejection as well on 2‑3‑1987 he filed the present petition for his re‑instatement with back benefits. In the reply statement, it has been pleaded by the respondent that the applicant being an Officer was not a workman and so he cannot maintain the present petition. It has been pleaded that the applicant was conferred the power of attorney of the Bank and the applicant has repeatedly acted in pursuance of the said power of attorney in his day to day dealings. He was performing supervisory and managerial duties and never performed any clerical duties and so he is not covered by the provisions of Standing Orders Ordinance 1968. It has also been pleaded that the present petition is time‑barred because the grievance notice was also barred by limitation. On merits it has been pleaded that the applicant had absented from duty unauthorisedly from 11‑2‑1984. He never submitted any leave application and so he was charge‑sheeted on 9‑6‑1985. This charge‑sheet was duly served on him. Since he did not reply the same and continued to remain absent without intimation, enquiry was ordered against him after due intimation by registered post. The applicant again preferred to remain absent and so ex parte proceedings were held against him. He having been proved to be absent without any permission or intimation, he was lawfully terminated from service by letter dated 3‑12‑1985. Accordingly, the applicant cannot maintain the present petition. To substantiate his case applicant alone appeared as his witness, whereas the respondent examined Mr. Siraj Ahmed, Postman, and Mr. Mashallah Khan, an authorised Officer of the respondent. After evidence, I have heard Mr. M.Ishaque Abbasi, Advocate for the applicant, and Mr. Abdul Ghani Khan, counsel for the respondent. I have also examined the factual and legal propositions involved herein. The first ground which has been urged on behalf of the respondent is that the applicant does not come within the category of a workman and so he cannot maintain present petition. Mr Ghani submits that undisputedly the applicant was holder of a power cf attorney on behalf of the respondent and was also posted as an officer and so he used to perform supervisory duties as well as he always exercised the powers conferred on him by the said power of attorney. Moreover, according to him, he never performed any clerical duties and so he cannot claim himself to be a workman. He placed reliance on P L D 1987 Kar. 175, 1985 S C M R 1511, 1986 P L C 103 and 1030 and 1982 P L C

116. Mr. Ishaque, learned counsel for the applicant, on the other hand submits that the applicant performed duties only of clerical nature by maintaining the relevant records and making entries by himself. He had no power of hire and fire nor was supervising the work or conduct of any employee of the Bank. He had never acted on the power of attorney said to have been given to the applicant nor he even knew the contents of such power. Accordingly, he submits, the applicant cannot be excluded from the category of workman. The applicant has himself admitted that he was not only an Officer of the Bank but was also holder of power of attorney with the number allotted to him as 5313. Though he denied to have exercised any powers under the said power of attorney but he categorically admitted that he had been signing the documents on behalf of the Bank as an attorney by quoting the number of his attorney referred to above. Since the applicant was holder of power of attorney and as proved and admitted that he also acted upon such power of attorney, he cannot be covered by the definition of a workman particularly when he was also posted as an Officer. This being the legal position, in view of the case‑law cited by Mr. Ghani, tie cannot maintain the present petition and so it is liable to be dismissed on this score alone. The second ground which has been urged by Mr. Ghani is that even if Standing Orders Ordinance of 1968 can be applied to him, the petition of the applicant is wholly time‑barred. According to him, the order was issued on 3‑1Z‑1985 but the grievance notice was sent by him on 16‑2‑1987 and so this petition would be barred by limitation. The submission of Mr. Abbasi however is that the applicant had no knowledge about this termination order till June 1986 and as soon as he came to know about this order, he first preferred departmental appeal and on its rejection he submitted his grievance notice well within time. Accordingly, this petition cannot be pleaded as time‑barred. As per the respondent the termination order was sent by registered post at the given address of the applicant on 3‑12‑1985 and the same was also duly served on him. Assuming that the applicant received this letter in June 1986, though he has not proved the same, still the grievance notice may be considered as time‑barred because the departmental appeal, though not mandatory, was also preferred after about 3 months of the receipt of termination letter. There would be no substance in the submission of Mr. Abbasi that the period spent in the decision of his appeal is to be excluded to compute the period of limitation because the appeal itself was preferred after about 9 months of the termination letter and further that such appeal is not a pre‑condition for serving the grievance notice. Moreover, the appeal was not rejected on merits. Even the applicant is considered to be a workman and the present petition is also deemed to be within time, still I am of the considered view that the applicant has no case at all. It is the case of the applicant himself that he had proceeded to Karachi after applying for 3 weeks leave on 11‑2‑1984. As per the pleadings this leave was said to have been granted to him. He however led no oral or documentary evidence to prove the submission of this leave application even what to talk of the grant of the same. In any case, it is the further plea of the applicant that he himself fell ill at Karachi and remained as such for more than 2 years. He however failed to substantiate his this fantastic plea of illness. The record shows that the applicant never submitted any leave application to the respondent during this long period of 2 years nor he ever submitted any medical certificate. The two certificates said to have been submitted by him were produced only alongwith the departmental appeal but these certificates as well have not been produced in this Court. The applicant was admittedly terminated on 3‑12‑1985 and, according to the applicant himself, he received this letter sometime in June 1986. He nowhere disclosed in what manner and where from he received this letter dated 3‑12‑1985. In fact, the applicant has unsuccessfully attempted to cover up his deliberate false statements by raising this unbelievable plea that he received letter dated 3‑12‑1985 in June 1986. It has been pleaded by Mr.Abbasi that the applicant was never the impugned nor he had any knowledge about any enquiry and so the impugned order is of no legal consequence. I have examined the evidence on record and I have no difficulty in repelling this submission of Mr‑ Abbasi. The management had waited for nearly one year and when the applicant neither appeared for duty nor applied for any leave, it sent the charge‑sheet by registered post A/D at the admittedly given address of the applicant. This charge‑sheet was duly received at his said address. The enquiry letter as also the termination letter were also duly served on the applicant at the said given address. The plea of the applicant now is that he was either at Karachi or at a different place at‑Latifabad during this period of 2 years and his changed addresses were duly intimated to the management. He however adduced not an iota of evidence to substantiate his this averment. Accordingly, the onus that was on the applicant to prove the communication of his changed address was never discharged and so the respondent has rightly urged that the charge‑sheet etc. were duly served on the applicant at his notified address and if the applicant chose to remain absent throughout without any intimation, he has to thank his own stars. I would record here that the management is not legally obliged to search out the applicant or his whereabouts as it was only to issue necessary letters to the already given addresses and if such letters are properly addressed and are also served on that address, it would exonerate itself from its liabilities or legal obligations. In the instant case, the applicant has been proved to have been properly and legally proceeded against and since his absence without any intimation for more than 10 days has been established, the impugned order is perfectly justified and cannot be called in question. In view of the above, I do not find any substance in this petition, which is accordingly dismissed. S. Q. /1053/Lb.S Petition dismissed.