1989 PLP 937 (PLC)

This is an application under section 25‑A, I.R.O., 1969 for reinstatement of the petitioner. The applicant was appointed as a lineman on 72‑3‑1983 at the rate of Rs.617 per month. He qualified a written test for the post of a regular Lineman. The petitioner served the department for about four years and was then removed from service. In his place one Muhammad Sheraz was appointed who was not made a respondent at the beginning but later on he appeared and became a respondent because he thought he was likely to be affected by any order passed by this Court and therefore it was necessary to hear him. The written statements have been filed in the case, one by the department and other by Sheraz respondent. The petition has been contested. Some preliminary objection were raised.

2. Both sides led evidence. P.W. 1 is Tahir Ahmed. He stated that the appointment letter is Exh. P.1 and that he was posted in Westridge. He was made regular vide Exh. P.2 arid his services were terminated in May. 1987. He has further stated that he has been working continuously with the respondent since 12‑3‑1983. When he was removed from service he filed a departmental appeal which Exh. P.3. This was not decided and he then sent a grievance notice Exh. P.4 which was rejected through Exh. P‑

5. He has been cross‑examined. R.W. 1 is Ghulam Shabbir Bhatti the engineer supervisor who has appeared on behalf of the respondent. R.W. 2 is Muhammad Sheraz.

3. After the conclusion of the case I heard arguments of both sides and have attended to the record. Counsel for the petitioner submitted that the appointment letter Exh. P. 1 does not indicate that the applicant had been appointed against a leave vacancy. But the petitioner has himself admitted that he was posted against the vacancy of Muhammad Ramzan on temporary basis. This is an answer to a question put by counsel for the respondent No.

2. Vide Exh. P. 5. which is reply to the grievance notice Exh. P.4, the department has stated that the termination order was given to the petitioner at Chaklala Rawalpindi. This means that the cause of action arose in the favour of the petitioner at Rawalpindi and, therefore this Court would have the jurisdiction to hear this case. Counsel for the respondent submitted that the petition is time‑barred. He argued that the petitioner instead of sending a grievance notice filed a departmental appeal. Thereafter a grievance notice was sent. The document Exh. R.8 shows that the services of Tahir Ahmed Khan were terminated on 22‑4‑1987. He then filed a departmental appeal and since he received no reply he served a grievance notice. The grievance notice is Exh. P. 4 and is dated 22‑3‑1987. The petition before this Court was filed on 22‑10‑1987. Counsel for the petitioner has relied on 1980 P L C 106, 1980 P L C 510 and 1980 P L C page

42. He has argued that if the A petitioner filed the departmental appeal then that period must be excluded. I have studied these authorities with care and find that they apply to the facts of the present case. I do not think the grievance notice or the grievance petition are in any way time‑barred.

4. Learned counsel for the petitioner submitted that since being appointed the petitioner worked continuously for a period of four years and since he was working as a lineman, he would be regarded as a workman. On the other hand he stated that the respondent has failed to point out if any statutory rules of service are applicable to the petitioner or that the department functions under the control of Government, Federal or Provincial. There is no doubt that the telegraph and telephone department functions under the Federal Government but there arc no rules of service applicable to linesmen. At least none has been shown. I would therefore conclude that the petitioner is governed by the Standing Order Ordinance. 1968. Since the evidence shows that the petitioner had been working continuously for four years he will be deemed to have become a permanent workman as defined in Standing Order I‑B. The fact that he was working against a leave vacancy does not make any difference because he had been on the job for almost four years.

5. Counsel for the petitioner argued that the record shows that Sheraz respondent No. 2 had not been working continuously and, therefore, the petitioner would be deemed to be senior to him. This argument going beyond the pleadings. I will, not, therefore, attend to it.

6. Counsel for the respondent argued that tile leave vacancy was to last for some time and it was only therefore a mistake that the petitioner continued in service. The respondent cannot have the benefit of his own mistake. There is nothing to show that the service of the petitioner was not continuous. No other point has been raised before me.

7. The upshot of the above discussion is that this petition succeed and is hereby accepted. The order of removal of service of the petitioner is set aside and he is reinstated. However, no back benefits arc allowed for the reason that they have not been prayed for. In any case there is no evidence to show that the petitioner was not unemployed during all this time. This disposes of the petition. The respondent No.1 is directed to take the petitioner back into service within two weeks of the dated of this order. A.E./00n8/Lb. P Petition accepted.