1989 PLP 956 (PLC(CS))

‑‑‑Ss. 25‑A & 38(3)‑‑Grievance petition against termination of service‑‑Railway employee remaining absent for about 5 years without leave‑‑Services terminated without enquiry‑‑Termination order was wrongful‑‑Reinstatement awarded only on technical grounds‑‑Back benefits, held, were rightly disallowed. (d) Industrial Relations Ordinance (XXIII of 1969) ‑‑‑Ss. 25‑A & 38(3)‑‑Grievance petition against termination of service‑ Termination found wrongful on technical grounds due to non‑holding of enquiry‑ Reinstatement awarded without back benefits‑‑Increments of out of service period admissible‑‑When a person is reinstated in service, his service becomes continuous and it is deemed that he was never removed from service‑‑Where pack benefits are not allowed employee will be entitled to increments for future without arrears. Agha Taj Muhammad for Appellants. Ch. Muhammad Akram for Respondent. Date of hearing: 31st May, 1988. The appeals captioned above emerge from the decision dated 30‑3‑1988 recorded by learned Presiding Officer, Punjab Labour Court No. 6, Rawalpindi whereby Syed Liaquat Hussain Shah (hereinafter called as the respondent) has been directed to be reinstated to service without back benefits. The respondent prayed before the learned lower Court that he be allowed annual increments but the learned lower Court refused to issue any direction and left the matter to be decided by the department. The respondent has in his appeal claimed back benefits and the Divisional Mechanical Engineer, P.R. Rawalpindi. The Divisional Superintendent P.R. Rawalpindi and the General Manager, Pakistan Railways, Lahore (hereinafter described as the appellants) have in their appeal challenged the direction of the reinstatement of the respondent in service. Since both the appeals arise from the same decision they are being disposed of together through this single judgment.

2. The allegation for which the respondent was removed from service was absence for more than five years. The respondent met with an accident in May, 1979 resulting in fracture of his right leg for which he remained admitted to Holy Family Hospital till 1981. On account of absence he was removed from service with effect from 11‑2‑1984. The date of the order is not given but since he was removed from service with effect from 11‑2‑1984 it is apparent that the order of removal was passed after the said date. Charge‑sheet was screed but admittedly no enquiry was held. It has been argued by the learned counsel for the appellants that since the absence was for more than 5 years, the services of the respondent stood automatically terminated, therefore, it was not necessary to hold an enquiry. Firstly the period of absence was not more than five years inasmuch as according to the very memorandum of appeal of the appellant the respondent had met with an accident in May, 1979 and his services were terminated with effect from 12‑2‑198‑

1. According to the Rule 703, of the Personnel Manual Vol. I, page 241 service of an absentee for live years who is a permanent employee, do not come to an end automatically and it is necessary to serve a show‑cause notice upon him. Since the absence of the respondent was less than five years, therefore, he should have been given opportunity to give the grounds for‑remaining absent. Since no enquiry was held, he was thus condemned unheard.

3. It has been argued by the learned counsel for the appellant that even though question of limitation was raised in the written statement, yet the learned lower Court did not advert to it and did not give any finding thereon. This is true but the grievance notice and the grievance petition were not time‑barred. The appellants have in para. No. 3 of the memo. of the appeal urged that the D.S.P.R. Rawalpindi referred the case of the respondent to the General Manager, Pakistan Railways, Headquarters Office vide letter dated 23‑5‑1984 and later further referred the matter to the Secretary Board Pakistan Railways, vide his letter dated 25‑5‑1985 for the relaxation of absence but the relaxation was withheld. It appears that no reply to the reference was made. Since the question was under consideration the respondent was justified in not serving grievance notice soon after the termination of his services. When do remedy came he served grievance notice and brought the grievance petition. So in these circumstances neither the grievance notice nor the grievance petition was time‑barred. If the respondent had been informed finally that rule could not be relaxed and he had not served grievance notice within three months of the said date only then it could be paid, that the notice was time‑barred. The other thing is that it has not been shown when the order of termination of service was served upon the respondent Period of limitation was to start either from [he date on which he was informed about the termination of service and after that from the date when he was informed that the rules had not been relaxed. Even the actual date on which the order of removal from service was passed is not known.

4. So far as back benefits are concerned the same have been rightly disallowed by the learned lower Court to the respondent. The grounds that the father of the respondent died on 19‑7‑1981 and then thereafter his younger brother and five others died in an accident in Iran were not sufficient for his absence. The respondent should have got leave sanctioned for the period of his absence. Ire has been given benefits by the learned lower Court of the fact that enquiry was not held. So more or less only on technical grounds the respondent has been directed to be reinstated in service. He should feel satisfied that in spite of remaining absent for a longer period he has been reinstated in service. However, the learned lower Court should have directed that the annual increments which the respondent would have, but for the order of removal from service, earned be included in his pay for future i.e. from the date of the reinstatement onwards without arrears. When a person has been reinstated in service, his service becomes continuous and it is deemed that he was never removed from service, therefore, in cases where back benefits have not been allowed the incumbent is not entitled to arrears but for future annual increments are to be added.

5. As upshot of the observations made above the appeal of the appellants is dismissed and the appeal of the respondent is partly accepted by directing the appellants to add in the pay of the respondent for future from the date of reinstatement annual increments which had fallen due to him during the period he remained out of service. A.E./550/Lb. P Orders accordingly.