1991 PLP 771 (PLC)

NASIR ASLAM ZAHID, J.

Respondent No. 3, an employee of Pakistan Railways, was employed by the petitioner on 13-7-1965 after requisite training at the Walton Training School, Lahore. Respondent No. 3 was granted annual leave of two months from 15-3-1978 by the petitioner. After taking leave, he left for his village in District Liah, Punjab. The case of respondent No. 3 is that in May 1978 he felt ill and due to protracted illness he could not resume his duties for over 4 years and on 13-12-1982 he reported for duty and submitted medical certificates of sickness and fitness. According to the respondent No. 3 he was not taken on duty and was made to await for orders and ultimately an order was passed on 30-8-1983 that as respondent No. 3 had remained absent from duty for over 5 years, under F.R. 18 he ceased to be in service. According to the respondent No. 3, the said order was not served upon him but later on after obtaining a copy of the order from the office of Pakistan Railways he preferred a petition to the Divisional Superintendent Railways, Karachi to which a reply dated 5-11-1983 was received by respondent No. 3 on 13-11-1983. The respondent No.3 made a representation to the Chairman Pakistan Railways Board also through a petition dated 5-12-1983 but no reply was received by him. In the circumstances, he filed a grievance petition under section 25-A of Industrial Relations Ordinance, 1969 before the labour Court at Karachi on 14-1-1984. Some legal objections were raised in the reply by Pakistan Railways and the grievance petition was also contested on merits. After recording evidence, by order dated 8-12-1984, the Labour Court allowed the application of the respondent No.3 holding that the respondent No.3 had reported for duty on 13/14th December, 1982, and, therefore, he had not remained absent from duty for 5 Years and as such F.R. 18 was not applicable. Pakistan Railways, being aggrieved, filed an appeal before the learned Sindh Labour Appellate Tribunal, who by order dated 2-4-1986, dismissed the said appeal. The orders of the Labour Court and Sindh Labour Appellate Tribunal are challenged in the present Constitutional Petition by Pakistan Railways. We have heard Mr. Ch. Rashid Ahmed learned counsel for the petitioner and Mr. Akhtar Ali Mahmud, learned counsel for respondent No.3, the employees.

2. It was first submitted by the learned counsel for the petitioner that I.R.O. is not applicable inasmuch as respondent No.3 was a clerk. Learned Counsel, however, conceded that in case respondent No.3 was a skilled employee, he would be covered by I.R.O. In this context the labour Court as well as Sindh Labour Appellate Tribunal have referred to para 1 of the application under section 25-A of I.R.O., 1969 where it was averred as follows:- "That the applicant is a workman of the respondent and was employed after requisite training at the Walton Training School, as Trains Clerk on 13-7-1965". In their reply statement before the Labour Court Pakistan Railways have admitted para. 1 of the applicant In our view, therefore, the Labour Court as well as Sindh Labour Appellate Tribunal were right in holding that on account of the aforesaid admission of Pakistan Railways in their reply statement, the objections raised by Pakistan Railways, that respondent No.3 was not a workman and I.R.O. was not applicable, were without merit.

3. The two Courts have also found on the basis of evidence produced before the Labour Court that respondent No.3, reported for duty on 13-12-1982. This is a concurrent finding and is based on evidence recorded before the Labour Court. Such factual finding cannot be disturbed in this constitutional Petition. In view of this concurrent finding, the assumption of the Pakistan Railways, that respondent No.3 had reported for duty after 5 years and as such F.R. 18 was applicable, is not correct. Under F.R. 18, a Government employee ceases to be in service if he remains absent for a continuous period of 5 Years. Admittedly respondent No.3 was on leave from 15-2-1978 to 15-5-1978 and as he had reported for duty on 13-12-1982, 5 years of his absence from duty had not passed and as such the two Courts rightly concluded that F.R. 18 was not applicable. It may be observed here that the only reason given in the order dated 30-8-1983 of Pakistan Railways terminating services of the respondent No.3 was that he had remained absent from service for a period of 5 Years. Another legal objection that was raised on behalf of the Pakistan Railways is that no grievance notice had been given by respondent No.3 before the application under section 25-A of I.R.O. had been filed before the Labour Court. On this point also there is a concurrent finding that a grievance notice had been given. We have not been persuaded to disturb this concurrent finding. In the circumstances, we find no merits in this petition which is dismissed but with no order as to costs. M.Y.H./P-193/K Petition dismissed.