1998 PLP 524 (PLC)

MUHAMMAD ZAMAN QURESHI (CHAIRMAN)

This appeal is directed against the order dated 19-11-1996 passed by the Single Bench of the N.I.R.C. whereby the respondent was ordered to be- reinstated from the date of his termination and to be paid the salaries for the termination period. The learned counsel for the appellant argued that the respondent absented himself from duty from 25-8-1978. He was issued a charge-sheet to explain the misconduct. The respondent did not submit any reply thereto. An enquiry notice was given and after holding a proper enquiry the respondent was found guilty. He was issued a second show-cause notice on 29-11-1978. He was also offered an opportunity of personal hearing but he did not avail it. Consequently the competent Authority dismissed him from service on 3-1-1979. The respondent filed a time-barred representation for reinstatement through Adviser to the Chief Minister, Punjab which was rejected and a reply was sent to the Adviser to the Chief Minister, Punjab. The respondent after about 16 years of his dismissal filed a petition under section 22-A(8)(g) of the I.R.O., 1969 in the N.I.R.C. on 13-9-1995, which was highly belated. He further stated that under Article 181 of the Limitation Act, where no period of limitation is provided elsewhere in the Schedule for filing an application, the limitation provided is three years when the right to apply accrues. On that account as well the petition filed by the respondent was highly time-barred and the Single Bench without sufficient cause condoned the delay. It was next contended the Single Bench decided the case without recording any evidence. No unfair labour practice was, therefore, established through oral or documentary record nor any instance of unfair labour practice was specifically mentioned in the petition. It was next urged that the Single Bench heard the arguments on 20-10-1996 and the order was reserved, although the order sheet was not signed by the Single Bench. The order was thereafter announced on 19-11-1996 without intimation to the appellant. On 16-12-1996, the respondent submitted an application wherefrom it came to the knowledge of the appellant that the impugned order had been passed. Accordingly, application for obtaining the certified copy was submitted and the certified copy was supplied on 1-1-1997, whereafter the appeal was filed on 14-1-1997 within time. The delay if any was beyond the control of the appellant and may be condoned. Lastly, it was argued that the dismissal order was not challenged for a long time and it had attained finality, hence the petition filed by the petitioner was not competent.

2. The learned counsel for the respondent replying the contentions raised by the learned counsel for the appellants, stressed that the respondent was a driver and false allegations of absence were levelled against him. Without issuing him a charge-sheet or show-cause notice and without granting personal hearing, he was dismissed from service and thereby the respondent was condemned unheard. The respondent filed an appeal which was replied on 16-1-1995 and thereafter the petition before the N.I.R.C. was filed well within time. Since the mandatory provisions laid down by law for holding the enquiry against the petitioner were not observed, it amounted to unfair labour practice, and therefore, the petition filed by the respondent was competent. It was next submitted that although the order-sheet dated 20-10-1996 was not signed inadvertently but the arguments were heard and the order was announced on 19-11-1996, therefore, no illegality was committed. It was for the appellant to have kept a watch. The appeal filed by the appellant was time-barred and no plausible explanation was given for condonation of the delay.

3. We have considered the arguments advanced by the parties counsel and have perused the record. It is noticed that the arguments were heard by the Single Bench on 20-10-1996 and the order was reserved. However, the order-sheet was not signed by the Single Bench. The petition was finally decided on 19-11-1996. There is nothing on the record to show that any intimation was given to the appellant for that date or the order was communicated to them after announcement. The appellants have placed on record of the memo. of appeal an application submitted by the respondent for allowing him to join duty, which was received on 16-12-1996, whereafter the impugned order came to their knowledge. An attested copy was supplied to them on 1-1-1997 and the appeal was filed on 14-1-1997, as such it is within time.

4. It is further noticed that the respondent was admittedly dismissed from service on account of unauthorised absence without leave on 3-1-1979. He kept quiet thereafter and made an appeal/representation for reinstatement through Adviser to the Chief Minister, Punjab which was replied on 16-1-1995 and then he filed the petition under section 22-A(8)(g) of the I.R.O., 1969 on the allegations of unfair labour practice. In his petition he stated that he was an active member of Airways Union which had political affiliation with Pakistan Peoples' Party and that in 1978 the Military Dictator Ziaul Haque started victimisation to all such workers who were members of trade union abusing the Martial Law. The respondent was kidnapped by the members of the rival union who were supporting the Martial Law. The respondent managed to escape from the illegal confinement and reported for duty but was informed by the management that his services had been dispensed with. The respondent made a representation to the respondent No.2 as far back as 15-9-1980, but of no avail. Thereafter, he made many representations to different authorities but without any result. From the above narration of facts, it is clear that the respondent did not intentionally and deliberately make any mention as to when was he arrested and when he managed his escape, on which date he reported for duty and who refused him duty, or from what date he was dismissed from service. Except two applications dated 15-8-1980 and 20-10-1994, which were allegedly addressed to the Managing Director, P.I.A.C. all the other applications annexed with the petition were addressed to the Prime Minister of Pakistan or to the Secretary Defence. There is no proof on record to show as to whether those applications were, in fact, posted to the Managing Director or received by him. It is further clear that the petition before the N.I.R.C. was filed after more than 15 years, which was highly belated and doctrine of laches is fully applicable in this case. If the respondent was aggrieved of non?-issuance of show-cause notice or improper holding of enquiry etc., he could seek his remedy in a competent forum at the relevant time, which he failed to do. The law favours the vigilant and not the indolent. The order of dismissal, thus, attained finality.

5. We also find that no specific act of unfair labour practice has either been mentioned in the petition by the respondent nor the same was proved through evidence during the course of hearing of the case. As mentioned in the petition, the kidnapping of the respondent by rival union, who were supporting the Martial Law Authorities,: would not make out a case of unfair labour practice within the meaning of section 15 of the I.R.O., 1969. It is not understandable as to why after the respondent had managed his escape from the illegal confinement, he kept quiet and did not challenge his removal from service in a competent forum. The findings of the Single Bench, "as to whether an unfair labour practice has been proved or not", are erroneous in view of the dictum laid down by the Supreme Court of Pakistan in LD 1988 SC 53, whereby the N.I.R.C. could not assume jurisdiction unless unfair labour practice had been proved. It is also noticed that no evidence was recorded after soliciting the reply statement to the petition. For the reasons mentioned above, we accept the appeal, set aside order dated 19-11-1996 and dismiss the petition filed by the respondent with no order as to costs. H.B.T./303/N.I.R.C. ?????????????????????????????????????????????????????????????????????????? Appeal accepted.