2003 PLP (C (PLC(CS))

MOAZZAM HAYAT (MEMBER).‑‑‑Muhammad Mehmood appellant was an employee of the Utility Stores Corporation. He was dismissed from service vide order dated 19‑9‑1995 on the charges of A misappropriation and remaining absent from duty. Through the present appeal he has challenged the legality and validity of the dismissal order.

2. Learned counsel for the appellant has submitted that the charges against the appellant were not that serious so as to attract the severe penalty of dismissal from service. His only prayer is that the punishment awarded to the appellant be reduced in the peculiar circumstances of the case.

3. The appeal has been resisted by the respondents. It is stated that the appellant had‑ misappropriated trading stock lying in Utility Stores G.T. Road Muridke of which he was the incharge and had remained absent from duty for more than ten days, therefore, he does not deserve any leniency. An objection with regard to limitation has also been taken.

4. The appellant was dismissed from service on 19‑9‑1995. He submitted his grievance petition to the Appellant Authority on 11‑11‑1995. Thereafter he filed a petition in the Labour Court on 30‑11‑1995 which was abated on 6‑5‑1999. This appeal was filed on 3‑6‑1999. It is requested by the appellant in his application for condonation of delay that he had moved the Labour Court in good faith for redressal of his grievance and the time spent in that Court be excluded while computing the period of limitation. In support of this contention a reference has been made to the provisions of section 14 of the Limitation Act.

5. Section 2-A was inserted in the. Service Tribunals‑Act on 10‑6‑1997. A dispute had‑arisen before this Tribunal as to whether the said amendment made in the 1973 Act through section 2‑A was of retrospective effect or not. This controversy was ultimately resolved by the Honouarble Supreme Court. We find force in this argument of the learned counsel for the appellant that the said controversy did not enable the appellant to immediately come to this Tribunal with his present appeal. The appellant had filed his petition in the Labour, Court in the year 1995. In that year the Labour Court, was the only forum in which the appellant could have taken his grievance. We, therefore, hold that the time spent in the proceedings before the Labour Court are to be 7 excluded while computing the period of limitation fixed by law for filing this appeal under section 4 of the Service Tribunals Act. Section 14 of the Limitation Act clearly provides for exclusion of time spent in good faith in a wrong judicial forum. The appeal was abated in the Labour Court on 6‑5‑1999 and this appeal was filed within 30 days from that date. We accept the application for condonation of delay as it is stated therein that there was some confusion with regard to the correct forum in view of insertion of section 2‑A in Service Tribunals Act. The delay in filing appeal is condoned in the peculiar circumstances of the case. 6. 88 tins of GCP Ghee weighing 5‑Kg, each were found at Petrol Pump Kala Shah Kaku when a raid was conducted by the Procurement Manager of the respondents on 3‑12‑1994. A report was also lodged with the police. The appellant has not denied that 88 tins of GCP Ghee were not present in the stock. His defence is that he had sold this Ghee as he was forced to do by some MPA/MNA. It appears that the price of this Ghee had been paid and was deposited with the respondents. As such no loss had respondent, it is, therefore, not a case of embezzlement. It is a case of deviation of rules and we find that penalty of dismissal from service is very harsh. The appellant was a low paid employee. He could not resist MPAs or MNAs and the fact remains that he did not cause any loss to the respondents. The price in full was paid to the respondents. It is probably, for this reason that in the criminal case investigated by the police on the said charge, he was ultimately exonerated. In our view it is a case of deviations from the rules and for that the appellant is guilty. However, the punishment of dismissal from service is very harsh.

7. As regards the charge of absence it appears that the appellant had been arrested by the police as a case had been registered against him. He was released on bail on 22‑12‑1994. He joined duty on 9‑1‑1995. For period from 26‑12‑1994 to 5‑1‑1995 he submitted a medical certificate. The production of medical certificate has not been denied by the respondents. The only objection of the respondents is that the medical certificate was not on the prescribed form. Thus this is once again a charge of deviation from the prescribed rules. The appellant had remained in police, release from the clutches of the police has to be taken into consideration. The competent authority of the respondents should have also taken the mental and physical condition of the appellant into consideration while determining the punishment to be awarded to him. We once again find that the punishment awarded to the appellant is very severe.

8. No loss has been caused to the .respondents by the act of the appellant. The absence of the appellant from duty was for a very short period and for that too he had submitted medical certificate. For this reason we find that the penalty of dismissal from service awarded to the appellant is not commensurate with the gravity of charge levelled against him. As a result thereof we accept the appeal to this extent that the order of dismissal is set aside and the punishment is converted into reduction of the appellant to the initial stage of his scale for a period of three years. He is reinstated into service. The question of payment of past dues for the intervening period shall be decided by the respondents. If during this period the appellant has worked for gain he shall not be paid any benefit. However, if he has remained out of job and has not worked for gain the respondents shall pay him all the benefits. The period of absence shall be treated as spent on leave to which he is found entitled under the rules.

9. No orders as to costs. Parties be informed. H.B.T./215/FST?????????????????????????????????????????????????????????????????????? Appeal accepted accordingly.