1985 PLP 118 (SCMR)

NASIM HASAN SHAH, J.-- The respondent, an Assistant Lines man, Moghalpura Sub-Division was charge-sheeted by the XEN Shalamar Division, Lahore for being absent without leave from 19 to 23 May, 1982 (five days), 7 to 8 June, 1982 (two days) and 10-6-1982 (one day). The respondent, in his reply, denied the allegation. However, he was removed from service by the order of the XEN Electricity WAPDA, Shalamar Division, Lahore, vide his order, dated 6-3-1983. The respondent issued a grievance notice under the Industrial Relations Ordinance, 1969 protesting against this action. He then filed a petition before the Labour Court to challenge his removal but the Presiding Officer of the Labour Court returned his petition for want of jurisdiction. Thereafter, he filed an appeal before the Federal Service Tribunal. In defending the appeal, the respondent herein took the plea that since the departmental remedy had not been availed of by the respondent herein the appeal, in view of the provisions of section 4(1)(a) of the Service Tribunals Act, 1973, was not maintainable. This plea was rejected by the Service Tribunal observing that where the employees had gone to the Labour Courts under section 25-A of the I.R.O. and had approached the Service Tribunal after their petitions were declared to have abated in view of this Court's pronouncement in the case F.U. Malik, the Tribunal had treaded their notices to the Department given under the Industrial Relations Ordinance as equivalent to having availed of the departmental remedy. On the merits, it was observed that the department had utterly failed to prove the factum of absence from duty of the official concerned. No evidence was recorded in the case and the charge of absence had been accepted without ever having been substantiated. In fact, the employee was condemned unheard. The Tribunal went on to observe that "the XEN appears to have acted not only in a highly irresponsible but also in a despotic manner". The appeal of the employee was, accordingly, accepted and he was re-instated into service with full benefits. Hence this petition for leave to appeal. In support of this petition, Mr. Asif Hussain Siddiqui, Advocate, has argued that the learned Tribunal has erred in treating the notices under section 25-A of the Industrial Relations Ordinance, 1969 as equivalent to and a substitute for the departmental appeal prescribed under section 4(1)(a) of the Service Tribunals Act, 1973. He submits that the appeal filed by the respondent before the Federal Service Tribunal, without his having preferred any appeal to his department, was not maintainable and incompetent and the learned Tribunal could not have treated the grievance notice under section 25-A of the I.R.O. as equivalent to a departmental appeal. We do not think that this is a fit case to decide the issue whether grievance notice under section 25-A of the Industrial Relations Ordinance can be treated as equivalent to a departmental appeal under section 4(1)(a) of the Service Tribunals Act, 1973. In this case, the Tribunal found as a fact that the department had not been able to prove that the respondent had ever absented himself. Neither the charge of absence was enquired into nor substantiated and that the order of removal passed against the respondent was a highly arbitrary and irresponsible action. These findings have neither been challenged in the petition for leave to appeal nor in the oral submissions made before us. This is, therefore, not a fit case for interference. M.Z.M. Leave refused