2012 PLP 181 (SCMR)

GHULAM RABBANI, J.

This petition seeks leave against the judgment dated 11-10-2010 passed by the Federal Service Tribunal, Islamabad (Karachi Bench) whereby Service Appeal filed by the respondent Abdul Fateh was allowed.

2. Precisely stated the facts of the case are that the respondent, a Waterman in Pakistan Railways, was removed from service with immediate effect vide letter dated 30-4-2001 communicated to the respondent on 5-5-2001. Respondent's appeal preferred thereagainst was rejected vide order dated 6-6-2001. Petitioner preferred before the Federal Service Tribunal a Service Appeal which was allowed vide judgment impugned herein.

3. It is contended by the learned counsel for petitioner that the Tribunal had no jurisdiction since the petitioner being a workman, his appeal was not competent before the Service Tribunal, more so when section 2-A of the Service Tribunals Act, 1973 was omitted on 6-3-2010 through Act No.II of 2010, therefore, the Tribunal was not competent to have entertained and decided the Service Appeal. It was further contended that this petition was filed within time, however, as an abundant caution the petitioner had made an application for condonation of delay. In this, reliance was placed on two documents i.e. letter dated 23-11-2010 of the Assistant Registrar, Federal Service Tribunal and the other an extract (Annexure A/1) from the Register maintained by the Pakistan Railways which, according to learned counsel, is used for receiving letters.

4. In the first instance we will deal with the question of limitation. In this behalf it may be stated that copy of impugned order dated 11-10-2010 was dispatched to the petitioner vide letter dated 23-11-2010 of Registrar of the Tribunal. And, it was received by the petitioner on 29-11-2010 as recorded in their "Inward/Receipt Register" referred hereinabove, whereas the instant petition was filed on 26-1-2011 i.e. before expiry of statutory period of 60 days. Thus, the office objection is overruled and the instant petition is found to be within time.

5. As regards question of jurisdiction, we have noted that it was also raised before the Service Tribunal and was overruled by observing:-- "So far as objection of the learned counsel for the respondents that appellant being Waterman is not a civil servant, it is not sustainable as the Hon'ble Supreme Court of Pakistan in its Order reported in 2008 PLC (C.S.) 240 (Chairman Pakistan Railways and others v. Arif Hussain and others) has held that, "We are afraid, the employees of railways department are governed by their own statutory rules, therefore, the Judgment relied by the learned counsel may not be attracted to exclude them from the definition of civil servants..." When confronted with the above observation of Service Tribunal, vis-a-vis the case-law referred therein, learned counsel for petitioner does not have any answer to rebut the same.

6. Record shows that the respondent was charged on an anonymous application for serious misconduct and breach of discipline. He was, however, absolved of the charges by the enquiry committee. It appears that thereafter four more enquiries on the same charges were conducted against the respondent and he was punished without resorting to the due process of law. In this, learned Members of Bench of Federal Service Tribunal observed that:-- "The enquiry committee, itself was of the considered opinion that the case was not dealt properly by the checking staff under the rules, the procedure of reporting was not adopted properly. The major punishment like removal from service is awarded it will be difficult for the administration to justify the same before the Court. Keeping in view this observation, there was no reason or ground with the enquiry committee to hold the appellant guilty which is totally against the evidence on record. It may be mentioned here that while the first Inquiry Officer had not proved guilt against the appellant, then why four more inquiries on the same charges were held, the major punishment was awarded on an anonymous complaint without providing the appellant opportunity of cross examining the complainant or any witness which was not warranted under the law." Nothing was brought to our notice to dislodge the view so expressed by the Service Tribunal. Consequently, we find no merit in this petition which is dismissed and leave refused. M.H./P-12/SC Petition dismissed.