2008 PLP 400 (PLC)

SAIF-UR-REHMAN, J.

Muhammad Arshad Khan, respondent No.1 was working as bill distributor in MEPCO, Al-Farid Sub-Division Pak Patton Sharif. It is alleged that he committed misconduct by misplacing the file of a consumer seeking installation of a new domestic connection with ulterior motive. Mst. Sughran Bibi, consumer filed complaint. Disciplinary proceedings were conducted against respondent No.1 culminating into awarding of major penalty in the form of compulsory retirement vide order dated 28-2-2001. Respondent No.1 filed grievance petition in the learned Labour Court, Multan which was accepted vide order dated 24-4-2008 passed by the said Court which has been assailed through this appeal. The learned Labour Court declared the order imposing penalty on respondent No.1 as void directing reinstatement of respondent No.1 in the service. Respondent No.1 was also found entitled to 50% of the back-benefits.

2. Learned counsel for the appellants contended that the penalty was imposed upon respondent No.1 on 28-2-2001 where he filed grievance petition on 28-7-2007 i.e. much after expiry of the period of limitation prescribed in this regard. He obtained the pensionary benefits and by doing so respondent No.1 admitted his guilt and was not entitled to agitate the matter anymore. Reliance in this context was placed on 1993 PLC

245. It was contended that by entertaining a time barred grievance petition, the learned Labour Court had exceeded its jurisdiction. The impugned order, therefore, was nullity in the eyes of law in the light of authority reported in 1981 PLC

4. It was contended that respondent No.1 was liable to commission of misconduct and that evidence had not been properly appreciated by the learned Labour Court.

3. Conversely, it was argued on behalf of respondent No.1 that he challenged the order of awarding penalty to him before the departmental authority on 13-3-2001, however, his appeal was never decided finally and the same was still pending. In this regard reference was made to statement of Mirza Muhammad Sharif, R.W.1 wherein the witness admitted that appeal dated 13-3-2001 filed by respondent No.1 was still pending before he department. Further submitted that under such circumstances receipt of dues did not create a bar on respondent No. 1 to seek appropriate remedy. Reliance was placed on 2001 SCMR 565 and 1992 SCMR

269. It was also maintained that the order of compulsory retirement was passed by unauthorized officer not competent to do so, therefore, the same was void ab initio.

4. Evidence was recorded by the learned trial Court. Certain admissions made by two witnesses produced by the appellants in support of their contentions are material. In his cross-examination Sheikh Abdul Hameed AMO RW-2 (incorrectly written as RW-1) stated:

"Manager Operation is the appointing authority of the petitioner. I am not the appointing authority. I myself enquired and investigated the matter. I am inquiry officer of my own accord. I was not appointed as inquiry officer from any higher authority or employer. I do not know the date on which the enquiry proceedings were started and close the same on issuance of dismissal order i.e. 28-2-2001. This date is termination date. I myself issued show-cause notice. I initiate the enquiry as Enquiry Officer and I punished the petitioner. It is correct that I did not record the defence or statement of the petitioner as well as consumer and Departmental personnel."

5. Mirza Muhammad Sharif, Deputy Manager (Operations) R.W.1 admitted during his cross-examination that he was not witness of the occurrence and not even posted at this division at the relevant time. He also admitted that no inquiry officer was appointed in this case and no opportunity was afforded for cross-examination to the appellants. As mentioned above, he also admitted that petitioner's appeal was still pending before the department.

6. When inquired as to why appeal filed by petitioner had not been decided, learned counsel for the appellants contended that to the best of his knowledge no appeal had been filed by respondent No.1.

7. It simplifies the matter because appellants were not even admitting filing of the appeal whereas respondent No.1 while appearing as P. W.1 mentioned the details about filing of appeal by giving its diary number and the subsequent reminders with the numbers under which the reminders were received by office of appellants. All these facts stood unrebuttedly proved.

8. The facts admitted by witnesses of the' appellants themselves proved beyond shadow of doubt that neither the prescribed procedure was adopted nor was any inquiry conducted under authority of a competent authority nor was a fair chance of being heard providing to respondent No. 1 nor was the penal order passed by competent Authority. The whole proceedings, therefore, were unholy, coram non judice and void ab initio. Question of limitation or laches, therefore, did not arise. The authorities relied upon by the appellants, therefore, were not applicable to the case in hand. The rights of respondent No.1 could not be defeated due to receipt of pensionary benefits by him in the light of ratio decided in 1992 SCMR 2169 and 2001 SCMR 565.

9. In view of the above, this appeal is held to be devoid of force which is hereby dismissed. H.B.T./C-14/L Appeal dismissed.