2011 PLP 1988 (SCMR)

JAWWAD S. KHAWAJA, J.

We have heard learned counsel for both sides at length. This very unfortunate litigation commenced as far back as 14-2-2004 when the respondent was dismissed from service. Although the litigation is long drawn-out, the one essential fact necessary for its disposal is very straightforward.

2. The respondent approached the Service Tribunal against his dismissal by way of appeal. The appeal was declared by the Tribunal to have abated. This order of abatement was passed on 8-7-2006. Thereafter, the respondent having accepted the fate of his appeal, approached the labour Court for redressal of his grievance. The labour Court dismissed his petition in default vide order dated 24-3-2007. An application seeking restoration of the said petition was also dismissed on 11-12-2007.

3. Thereafter, the respondent remained silent for a further period of almost 2 years when on 21-10-2009 he filed a Civil Miscellaneous Application before the Service Tribunal, praying that the order of abatement dated 8-7-2006 be recalled. The ground on which the application was moved stated that it was the Registrar of the Tribunal who had passed the order of abatement. This assertion is patently incorrect because the order dated 8-7-2006, holding that the respondent's appeal stood abated was passed and signed by two learned Members of the Tribunal. Notwithstanding this circumstance, there is no valid explanation as to why the respondent had not assailed the orders of the labour Court when his petition before the said Court had been dismissed in 2007 and even the restoration application filed by him stood dismissed on 11-12-2007. The respondent did not, in fact, take any further action in the matter. There is yet another aspect of the case. The Service Tribunal had no jurisdiction to recall its order of abatement dated 8-7-2006 on the basis of the aforesaid Civil Miscellaneous Application filed two years after the dismissal of the respondent's case by the Labour Court.

4. We are therefore, satisfied that the very order of the Tribunal whereby the respondent's abated appeal was restored, is without jurisdiction or lawful basis.

5. In view of the foregoing conclusion, it is clear that any order or determination made by the Tribunal after the order of 8-7-2006 was itself without any jurisdiction or lawful basis. Even the petitioner's own application under Order IX, Rule 13, C.P.C. was not competent before the Service Tribunal. This, however, is of little relevance considering what has been discussed above. In view of the foregoing discussion, we find that the respondent's appeal could not have been revived on the basis of his application before the Tribunal. The order of revival passed on the said application being without merit is therefore, set aside.

6. Learned counsel for the respondent contended that the petitioner's grievance against the said order was not agitated in a timely manner and therefore, the petitioner's invocation of the jurisdiction of this Court was time barred. This contention is misconceived because we have concluded that the order of the Tribunal reviving the respondent's abated appeal was patently without jurisdiction. In this view of the matter, this petition is converted into appeal and is allowed in the light of our determination and, as a consequence, the respondent's dismissal from service on 14-2-2004 is affirmed having attained finality. S.A.K./C-7/SC Appeal accepted.