2013 PLP 273 (PLC)

AFTAB AHMED GORAR, J.

Through this petition, the petitioner has assailed the decision of Sindh Labour Appellate Tribunal Karachi camp at Hyderabad dated 10-2-2011, whereby the appeal of the petitioner was dismissed and the order of Sindh Labour Court No.VI Hyderabad dated 7-11-2009 dismissing the grievance petition of the petitioner was maintained. The petitioner has prayed as under:

(a) Call the Record and Proceedings from the learned Labour Court as well as Sindh Labour Appellate Tribunal; (b) Hold that the petitioner is a "workman" for the purpose of Standing Orders Ordinance, 1968 and the Standing Orders Ordinance, 1968 is applicable over the establishment of the HESCO; (c) Declare that WAPDA leave Rules having no applicability over the provisions of Standing Orders Ordinance, 1968 as Rule is in contravention of Fundamental Right of hearing and Islamic injunction; (d) Set aside both Order and Decision passed by the learned Labour Court and Labour Appellate Tribunal and allow the grievance petition with the direction to the respondents to reinstate/ allow the petitioner to join his duties with all consequential benefits; (e) Award Cost (f) Any other relief;

2. Brief facts leading to this petition are the respondents employed that petitioner in November, 1973 as Helper. The petitioner was promoted as S.S.A in the year 1977-78. He claimed to have been victimized in the year 1982. His application for leave was declined, on the contrary on the recommendation of enquiry committee, he was awarded penalty of reduction of his grade to BPS-5. According to the petitioner, due to aforesaid tension and victimization, he suffered mental pressure consequently fell ill and was under treatment, therefore, applied for leave but he was not informed about fate thereof. After recovery of health, the petitioner reported for duty with a joining report on 6-11-1991. On such report petitioner was referred to Medical Board for his examination and the Medical Board after his examination issued a report on 10-11-1992 wherein it was observed that at such later stage, board could not observe anything about his past illness however, he was found fit for duty. The petitioner again submitted his joining report but same was declined.

3. The petitioner filed an application under section 15 of Payment of Wages Act for recovery of wages of said period of unemployment which was allowed by the Commissioner for Workmen's Compensation and Authority under Payment of Wages Act, Hyderabad with directions to the respondents to pay an amount of Rs.4,68,836 for the intervening period. The respondents preferred an appeal against such order but subsequently withdrew the same. The petitioner again submitted his joining report but the respondents declined it. Thereafter vide letter dated 6-2-2008 the respondents informed the petitioner that he was no more their employee, hence his joining could not be considered. The petitioner filed Grievance petition with prayer to set-aside the impugned order of the respondents and for his reinstatement in service with all consequential benefits.

4. The respondents in their written statement denied the contention of the petitioner and stated that the petitioner remained absent from his duties for about 9 years w.e.f. 11-9-1983 to 5-11-1991 without any leave. He turned up on 6-11-1991 and applied for leave on medical ground as such he was referred to Medical Board, where he was examined and was found fit for duty. According to the respondents, if an employee continuously remains absent for about 5 years, he ceased to be the employee of the respondents as per rule 27 of WAPDA Rules, 1982.

5. The trial court after hearing the parties dismissed the grievance petition of the petitioner while holding the same not maintainable in terms of WAPDA Rules, 1982, according to which the petitioner ceased to be the employee of the respondents and also that the petitioner could not explain about his long absence.

6. Learned counsel for the petitioner argued that decision of the learned Labour court was based on misreading and non-reading of the facts as well as misinterpretation of law. He further argued that salary has nothing to do with the status of the workman and only the nature of the duty could determine such aspect of the matter; his application before authority under Payment of Wages Act was allowed and thereby the respondents admitted him to be their employee for that period. Learned counsel stated that WAPDA Rules are not applicable to the petitioner. Learned counsel added that the petitioner has not been terminated till date, therefore, his eviction from service is illegal, unlawful and of no legal effect. He further contended that on one hand, the respondents paid the wages to the petitioner for intervening period under the orders of the Authority under payment of Wages Act and on the other denied his joining which is uncalled for. He stated that once the respondents paid the wages to the petitioner, they cannot deny his joining of his duties, therefore, letter dated 16-1-2008 is illegal and without providing opportunity of defence/show-cause notice to the petitioner and therefore, the decisions of both courts below are not sustainable in law.

7. Learned counsel for the respondents argued that the grievance petition was not maintainable in law, therefore, was rightly dismissed by the learned trial court and upheld by the learned appellate court. He submitted that the petitioner did not perform his duties regularly, therefore, in the year 1982 the petitioner was imposed penalty of reversion on account of his absence. He further contended that the petitioner remained absent from his duty w.e.f. 11-9-1983 to 5-11-1991 without any leave or prior permission. He further contended that after lapse of 9 years, appeared on 6-11-1991 and applied for leave on medical grounds and after having been examined by the Medical Board, he was found fit for duties and it was further reported that leave for 09 years was not justified, hence his leave was declined. He argued that decision on the application regarding payment of wages by the Authority under payment of Wages Act has no relevancy with the present matter. Learned counsel for the respondents referred to WAPDA Rules and contended that according to Rules; if an employee remains, absent for continuous period beyond five years ceases to be the employee of the WAPDA. He submitted that the petitioner remained absent without leave for about 9 years, therefore, he was no more employee of the respondents, hence, the petition is not maintainable in law. Learned counsel further argued that the petitioner also could not justify his long absence of about 9 years and on his appearance before the Medical Board, he was found fit. Learned counsel supported the impugned orders of the courts below and prayed for dismissal of the petition.

8. We have heard learned counsel for the parties and examined the material available on record with their able assistance. Case of the petitioner is that he was victimized by the respondents and in the year 1982 was awarded penalty of reversion/reduction to BPS-5 due to which he became ill and remained absent. The petitioner further pleaded that after recovering health, after about 09 years, appeared before the respondents and applied for leave. On query, learned counsel for the petitioner could not satisfy regarding absence of the petitioner for such long time and failed to produce any medical certificate to justify his contention regarding illness of the petitioner. We, therefore, are of the view that the absence of the petitioner for such 9 years remained unjustified and unexplained.

9. Learned counsel for the respondents has referred Rule 27 of WAPDA Rules, 1982. For the sack of convenience Rule 27 is reproduced as under;

"

27. Combination of different types of leave etc. One type of leave can be combined with joining time or with any other type of leave admissible to a WAPDA employee subject to a maximum of five years at a time, except leave preparatory to retirement. A WAPDA employee shall cease to be an employee, if he remains absent beyond the said period". From the bare perusal of the aforesaid rule, it appears that an employee due to his absence beyond the period of five years, shall cease to be an employee of the respondents company. This rule has closed the ways of the petitioner to claim his reinstatement after remaining absent for a period of 9 years, which too without any cogent or satisfactory reason. The contention of learned counsel for the petitioner that WAPDA Rules are not applicable is not acceptable as originally the petitioner was the employee of the WAPDA and different electric companies were created from the WAPDA for the purpose of the management.

10. In view of the above circumstances, we are of the considered view that the petitioner has failed to make out any case for interference in the decisions/orders of the courts below, which appear to have been passed in accordance with law. Consequently, the petition stands dismissed with no order as to costs. HBT/M-49/K Petition dismisse