1988 PLP (C (PLC(CS))

Mian Mahmood Hussain for Appellant. Sardar Muhammad Amir Akbar Khan for Respondent. Date of hearing: 23rd October, 1986. The relevant background giving rise to the present appeal is that the appellant was appointed as Line Superintendent (Grade‑II) on 5‑3‑1981 but after about a couple of weeks only his services were terminated vide order dated 24‑3‑1981 purportedly passed under clause 2 of his terms and conditions of service contained in his appointment order dated 5‑3‑1981 which provides that if during the period of probation, his work or conduct is found unsatisfactory, the appointing authority may dispense with his services without giving him any notice. The appellant challenged the said termination order before the learned Labour Court which by its order dated 14‑5‑1981, holding the impugned order to be illegal, directed the reinstatement of the appellant in service with full back benefits. The Respondent‑Authority, however, filed appeal to the learned Labour Appellate Tribunal which was dismissed on 31‑1‑1983. The Respondent‑Authority then filed a writ petition before the Honourable High Court which was accepted on 21‑4‑1984 holding that the appellant being a civil servant, the orders of the Labour Court were without jurisdiction. The appellant then filed the present appeal on 16‑5‑1984 before this Tribunal.

2. The appellant's case is that the impugned order was passed in purported exercise of the powers contained in clause 2 of the terms and conditions of the service of the appellant contained in his appointment order which could be invoked for dispensing with the services of a probationer only if his work or conduct during the period of probation, is found unsatisfactory, while, it was absolutely impossible to judge the work or conduct of the appellant during a few days he served as a probationer. It was asserted that the impugned order was passed under the pressure of the Chief Engineer, WAPDA, Lahore, to accommodate his own man, and, at any rate, the impugned order being devoid of good faith, is mala fide. It was further pointed out that before the Labour Court, a new plea was imported by the respondent that the reason for the termination of the services of the appellant, was the reduction in the posts of Line Superintendents by 50% but this plea was rightly repelled by the said Court, firstly, because no reduction in the posts of Line Superintendents had taken place but, in fact, 50% of the posts of Line Superintendents (Grade‑II) was designated as the posts of Meter Supervisors which are to be filled in by promoting Meter Readers; and, secondly, the so‑called reduction in the posts had already taken place in 1980, while, the appellant was appointed as Line Superintendent thereafter in 1981, on direct recruitment basis. Therefore, the termination of the services of the appellant was not warranted even by the so‑called reduction in posts. The respondent now has taken a quite new stand before this Tribunal that prior to 5‑3‑1981, the appellant was serving under the WAPDA as a Meter Reader in Hafizabad Division and had been charge‑sheeted there for bogus meter readings which fact he suppressed at the time of securing a higher position of Line Superintendent (Grade II). In rebuttal thereof, asserting that the appellant was not bound to disclose in his application for appointment that he was previously charge‑sheeted, and, in any case, such alleged omission does not constitute a misconduct, it was explained that he (the appellant) had submitted his application for the post of Line Superintendent (Grade‑II) through proper channel; the authorities of the Hafizabad Sub‑Division, who duly forwarded the same giving thereon their no objection to the appointment of the appellant to the post of Line Superintendent (Grade‑II). It was thus submitted that the impugned order being devoid of good faith and having been unjustifiably passed, is incompetent, unlawful and mala fide.

3. Sardar Muhammad Amir Akbar Khan, learned counsel for the?? Respondent‑Authority, apart from contesting the appeal on merit, raised legal objections about the competence and maintainability of the present appeal. He first submitted that no proper departmental appeal having been filed by the appellant against the impugned order, the present appeal is barred by proviso (a) to subsection (1) of[ section 4 of the Service Tribunals Act, 1973. The learned counsel, however, failed to show any statutory provision providing for a departmental appeal against the impugned order. This plea is accordingly repelled.

4. It was next contended by him that the present appeal having been inordinately delayed, is barred by limitation. Quite obviously, the present appeal having been filed on 16‑5‑1984 against the impugned order dated 24‑3‑1981 is hopelessly time‑barred. There is however, an application for condonation of delay wherein it has been stated that the appellant in pursuance of certain judgments of this Tribunal and the Labour Courts whereby the categories of the persons of the appellant were treated to be "workmen" and not "civil servants", had challenged the impugned order before the Labour Court which by its order dated 14‑5‑1981, set aside the impugned order and in pursuance thereof the appellant was reinstated in service and was allowed back benefits. An appeal filed by the Respondent‑Authority before the Labour Appellate Tribunal had also failed but the respondent then filed a writ petition before the Honourable Lahore High Court which was accepted on 21‑4‑1984 and the appellant then vigilantly filed the present appeal on 16‑5‑1984. It was urged that the appellant acted under a bona fide impression and as such his mistake was excusable. The learned counsel for the Respondent‑Authority, however, vehemently opposing the petition for condonation .of delay, contended? that assuming but not conceding, if there was any controversy of opinion in respect of the jurisdiction of this Tribunal. It was finally resolved by an authoritative pronouncement of the Honourable Supreme Court on 5‑12‑1982 in the case of F U. Malik v. WAPDA and reported as 1985 S C M R

663. The learned counsel emphasized that the appellant and his counsel, in any case, became fully aware of the correct legal position on 11‑4‑1983 when another petition being No.117/1982 filed by the appellant before the Punjab Labour Court against another order of his dismissal from service, was returned to the applicant by the Labour Court holding him a civil servant on the basis of the decision of the Supreme Court in the above‑referred case whereon the same counsel. Mian Mahmood Hussain. had filed an appeal in the said matter of the dismissal of the appellant from service before this Tribunal on 27‑4‑1983 but even then it was not cared to? an appeal before this Tribunal against the order impugned herein the appellant further had been sleeping negligently for more than a year and filed the present appeal only on 16‑5‑1984. It was submitted that there was no occasion or justification for the appellant month is counsel for delaying the present appeal by more than twelve correct simply because, by return of his Petition No.117/1982 the legal position was, in any case, known to them and they acted accordingly in that matter, therefore, they should have clearly understood that the order of the appellant's reinstatement in service passed by the Labour Court became ineffective and inoperative notwithstanding the pendency of the writ petition filed by the respondent for which, according to the appellant himself, he had no notice.

5. We found ourselves in accord with the learned counsel for the Respondent‑Authority that at least on 11‑4‑1983 the appellant and his counsel were quite aware of the correct legal position about the exclusive jurisdiction of this Tribunal in the matter; and that the delay occurred thereafter has to be explained and, according to the well‑settled principle of law, reason for each day's delay has not, only to be explained but substantiated. In such a context, however, the sole submission of the learned counsel for the appellant is that if' the delay in filing the present appeal is not condoned, injustice done, to the appellant shall be perpetuated and thereby he shall suffer an irreparable loss caused by the impugned order which, on the face of it, is illegal and mala fide. The law on the point, however, is well settled that after the prescribed period of limitation has elapsed, the door of justice is closed and no plea of injustice, hardship or ignorance can be of any avail unless the delay is properly explained and accounted for. Indeed, exercise of discretion to condone the delay has to be reasonable and not arbitrary and can be resorted to in very special circumstances and only when delay of each day stands accounted for. As discussed above, the appellant has utterly failed to explain and account for such an inordinate delay and as such the same is inexcusable and un-condonable.

6. Our examination of the case on merits, however, led us to the conclusion that the impugned order is devoid of good faith but we could give such declaration only if the present appeal is found to be competent which, as we have said above, it is not.

7. For the foregoing reasons, the petition for condonation of delay is rejected and, in consequence, the appeal is dismissed as incompetent being barred by limitation.

8. No order as to costs. A.E. /384/Sr.F???????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.