2012 PLP 40 (PLC)

ABDUL HAFEEZ CHEEMA (CHAIRMAN).

The captioned appeals are directed against the judgment dated 29-5-2010 passed by the learned Presiding Officer, Punjab Labour Court No.9, Multan whereby the grievance petition filed by Allah Bachaya (hereinafter referred to as the respondent) was allowed without back-benefits and he has challenged the decision of the court to the extent of the grant of full back-benefits. The MEPCO Authorities (hereinafter described as the appellants) have challenged the impugned judgment in totality. Since common questions of law and facts are involved in both the appeals, they are being disposed of through this single judgment.

2. The background of the case briefly is that the respondent Allah Bachaya who was a Daftri in the office of the appellant remained absents from duty w.e.f. 13-9-1997 to 27-1-1998 on the plea that he was suffering with back bone pain. Some how or the other he managed to get post facto sanctioned of his leave on 16-7-1998. He again absented A himself from 20-12-1999 onwards for one month and eleven days. He was issued a show-cause notice. He failed to render any reasonable or plausible explanation. He however produced a medical certificate from a private doctor which was not accepted. Consequently after affording him proper hearing he was removed from service vide order dated 24-7-1999.

3. The respondent thereafter filed departmental appeal before the higher authorities which was not attended to. He then sent reminder after reminders but to no avail. He approached the Prime Minister of Pakistan with a request to intervene in the matter and to ensure justice to him but that too could not bear fruit. He was ultimately obliged to file a grievance petition after 8 long years in the learned Labour Court which allowed the same vide the impugned judgment without back-benefits.

4. It is submitted by the learned counsel for the appellants that there was a huge delay which the learned Labour Court over looked and if such laxity is shown to the litigants then the labour laws will not remain effective. No valid justification was shown by the respondent for the condonation of such a. long delay. As such, the impugned judgment merits to he quashed.

5. On the other hand it was pointed out by the learned representative of the respondent that he did not remain silent and moved heaven and unearth for getting relief. His appeal and reminders were not attended to by the WAPDA authorities and then he was obliged to request to the Prime Minister of Pakistan but no attention was paid to his grievance. The judgment of the learned Labour Court is just, fair and is blended with mercy.

6. Arguments have been heard and record has been gone through.

7. While appearing in the learned Labour Court as PW Allah Bachaya conceded that he filed his first departmental appeal (Exh.P-12) on 21-9-1999 which was not responded by the department. Then he explored all the avenues to seek relief through number of appeals but they failed to produce any positive result. He also conceded that he was removed from service on 14-7-1999 and he filed the grievance petition on 4-6-2008 after 8 years. The grievance notice was served upon the respondent on 26-5-2008. He conceded that he remained absent from duty for 40 days. He equally admitted that instead of going to WAPDA Hospital or securing a reference to some other hospital through WAPDA Hospital he banked upon a private doctor. The respondent was issued show cause notice by the WAPDA authorities wherein -he was given proper hearing but he failed to give any reasonable and plausible explanation for his absence at the time of his removal from service. He was MEPCO employee and his remedy was before the FST to approach there within a period of 90 days after the filing of the appeal which the respondent failed to do so.

8. In fact the starting point for approaching the Federal Service Tribunal (FST) after the rejection of his departmental appeal was 12-9-1999. He ought to have filed an appeal before the FST within 120 days, under section 4 of the Federal Services Tribunals Act, 1973 from the date of rejection of his departtfiental appeal: It would be advantageous to reproduce the relevant provisions of section 4 ibid:

"4 Appeal, to Tribunals.

(1) Any civil servant aggrieved by ,any final order, whether original or appellate, _made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal; Provided that:

(a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 1973, or any rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal orapplication for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred; (b) ??????????????????????????????????..

9. It is a special law and clearly requires that after preferring an appeal, review or revision the appellant must approach the Service Tribunal after waiting for a period of 90 days. It means that the law recognizes the right to file an appeal, review or revision etc. wherever it is legally available but the appellant must come to Service Tribunal after waiting for 90 days of the filing of appeal because the words used by law are "that the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authorities and a period 'of 90 days has elapsed from the date on which such appeal, application or representation???? was so preferred. This shows that the appeal before the FST should have filed within 120 days after 24-9-1999. The appeal before FST was thus hopelessly time-barred.

10. It is noteworthy that after the rejection of his departmental appeal all his endeavors in filing appeal, reminders, applications etc. instead of approaching the FST were indeed a sheer wastage of time. In such circumstances, the Hon'ble Supreme Court (PLD 1990 SC 692) was pleased to rule "Service Tribunal should press into service question of limitation strictly

Fact that the Service Tribunal had dismissed the appeal on the ground of limitation without touching upon the merits of the case, would not render the order under appeal legally infirm, as to warrant interference by Supreme Court. "Civil servant has to approach the Service Tribunal against a final order by which he is aggrieved within 120 days i.e. 90 days waiting period for receiving a decision on appeal, review or representation plus 30 days limitation period of the appeal before the Service Tribunal."

11. In this view of the matter, the appellant does not appear to have come to the court with clean hands. He had wasted his time in filing of his appeal, reminders, and applications if any and has. tried to circumvent the law of limitation. The matter which at the maximum after the rejection of the departmental appeal should have reached the appropriate C forum within 120 days had taken almost eight years

12. It is also a settled law that where the matter is barred by time the court cannot go into the merits of the controversy between the parties. Reference in this behalf may be made to Fazal Elahi Siddiqui v. Government of Pakistan through Secretary Establishment and 2 others (PLD 1990 SC 692) Wali Muhammad Khokhar v. Government of Sindh and others (2001 SCMR 912).

13. In this view of the matter the grievance petition was hopelessly barred by time and the learned Labour Court had wrongly assumed the jurisdiction and has shown unnecessary latitude in granting relief to the respondent which was absolutely unjustified. If such a colossal delay is excused, it would be highly against the spirit of labour legislation and would destroy its effectiveness.

14. Consequently, the impugned judgment is not sustainable and is hereby set aside. The appeal filed by the MEPCO authorities is accepted. As for the appeal filed by the employee for the grant of back benefits, since the appeal filed by the department has been accepted, the cross appeal of the employee is dismissed. There shall be no order as to costs. H.B.T./20/PLT???????????????????????????????????????????????????????????????????????? Order accordingly.