1990 PLP 275 (PLC)

Date of hearing: 29th September, 1988. This is an appeal which has been preferred by the appellant workman against the impugned order dated 23‑2‑1988 passed by the learned Labour Court No. VI at Hyderabad on the point of limitation.

2. Brief facts are that the appellant was employed as Dozer Operator on work‑charged establishment. The service conditions of such workman are governed by the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and services of workman employed on work‑charged establishment can be determined only in accordance with one of the modes provided under the provisions of Standing Order 12(3) and no other mode or method is available to dispense with the services. It is an admitted fact that the respondents have so far not terminated the services of the appellant by an order expressed in writing and giving explicit reasons therefor and it is also an admitted fact that the appellant workman was not given any show‑cause notice contemplated by Standing Order 15(4) and the violation of mandatory standing orders cannot be permitted directly or indirectly.

3. It is settled law that things should be done in the manner prescribed and in no other way. It is not open to the learned Labour Court or to this Tribunal to regularise what is invalid at its inception. I inquired from the respondents the day on which the order of termination against the appellant was issued but the respondent's representative admitted that order of termination was not issued and in fact this was not denied even by the department's witness who deposed on behalf of the respondents. The order of the learned Labour Court on the point of limitation is not sustainable.

4. Today I have heard Mr. Muhammad Bashir Awan, the learned Advocate for the appellant and Mr. M. Ibrahim, the learned department representative, who submitted an adjournment application, which was rejected. I have carefully perused the entire record of proceedings and I reached the conclusion then and there that the appeal deserved to be allowed as the respondents failed to show to me even at the appellate stage the written order of termination so as to give effect to the plea of limitation.

5. Mr. Bashir Awan argues that no evidence was led to show that the services of the appellant were terminated on such and such date so that time commences from such particular date and the order based as such has resulted into miscarriage of justice and the order deserves to be set aside. This argument has force as for the negligence of the department, the appellant cannot be rendered without remedy. This is supported by the observations of the learned Labour Court in last para. at page 2 which is reproduced: "On going through the pleadings and the evidence, I feel that no doubt the office of the respondent and the person pursuing this case on behalf of the respondent have not performed their duties either in the interest of justice or at least in the interest of the Government and perhaps this application was brought in with the connivance and at the instigation of some person working in the concerned office of the respondent."

6. I cannot enter into the arena of lithargy obtaining in the Government Department and I cannot punish the appellant for the default of Government officials who have to obey the law and no different treatment is deserved by them. In the circumstances the order of the learned Labour Court has to be set aside and since it is not sustainable, and since no order in writing as contemplated by Standing Order 12(3) has been claimed, the department cannot be given a naked arbitrary, uncontrolled, unbriddled and unqualified power to refuse to furnish a written order with explicit reasons and yet be allowed to plead limitation and to throw the appellant out of Court and render him without any remedy. This is whimsical reason as it offends against Article 4(1) of the Constitution of the Islamic Republic of Pakistan. This act is ex facie violative of Standing Order 12(3), and therefore, the appellant is entitled to an order of reinstatement with back benefits from November, 1985 only, and thereafter, it will be open to the department to take proceedings against the appellant if permitted by law. The fact that the appellant had 22 years service has not been disputed at any stage of proceedings.

7. For the reasons discussed by me above, I would set aside the impugned order dated 23‑2‑1988 passed by the learned Labour Court do sheer whimsical grounds which are even not borne out from the record and the remarks are uncalled for and would order reinstatement of appellant in service forthwith and that he shall be paid back benefits from November, 1985 only. A.E./1316/Lb. S Appeal accepted.