2014 PLP 336 (PLC)

ABDUL GHIAS NOUSHERWANI (MEMBER).

The respondent/applicant challenged his dismissal order which read as under:

"Now therefore, having considered the record of proceedings, the Authority in exercise of Powers vested under rule 5(1)(iv) read with Rule 3 of Government Servant (Efficiency and Discipline) Rules, 1973 hereby imposed major penalty "Dismissal from Services" as prescribed in Rule 4(1)(b)(iv) of said rules upon Muhammad Ibrahim Postman (BPS-7) with immediate effect. The criminal case bearing F.I.R. No.14/2011 against him is under trial before Honorable Anti-Corruption Court Quetta and recovery of Embezzled amount Rs.578,232 may be made through court of law. His name is struck off from the strength D.O. Quetta." According to judgment impugned and order sheet dated 7-9-2012 the notices of respondents/appellant were ordered to be served for 17-9-2012. On that date of hearing record reveals that inspite of several calls the respondents did not appear though the notices were served upon respondents. Therefore they were proceeded ex parte. Thereafter ex-parte evidence in shape of affidavit submitted before learned Labour Court and the application of respondent/applicant was allowed by means of impugned judgment dated 20th November 2012 in Case No.27 of 2012 by Learned Presiding Officer 1st Labour Court Balochistan and concluded as under:

"keeping in view all the documents, circumstances, statements of witnesses, petitioner and the bail order, I, reached to the conclusion that the Department-Respondents have had tried to save the main culprit/accused and have implicated the petitioner Muhammad Ibrahim Post man of Post Office Killa Abdullah. The reply of the Show-Cause is involving many persons in the misappropriation and embezzlement of the money relating to the Benzir Income Support Program (BISP). I, therefore do accept the application-petition filed by Muhammad Ibrahim Post Man Son of Gul Baran in the interest of Justice. The order-decision passed by respondents dated 7-6-2011 and 14-7-2012 are hereby set aside with direction to restore the petitioner on his back/last position with all back benefits in the interest of Justice. The matter is before the Federal Investigation Agency, after the decision of Competent Court respondents are at liberty to deal with the applicant-petitioner Muhammad Ibrahim accordingly."

2. The learned counsel for appellant/respondent stated that the notices have not been served properly and ex parte judgment/order was passed without lawful authority for the reason that the establishment of post office runs under statutory rules and regulations and such matter does not fall under the jurisdiction of Labour Court. Next contended that the respondent/applicant was involved in a criminal case for embezzlement of Rs.570232 of Benzir Income Support Program (BISP). On the point of limitation the learned counsel states though an application for condonation of delay is accompanied with the appeal but the judgment impugned is void against which no limitation runs. In support of his submissions referred two orders of Labour Court 1st Balochistan dated 28-8-2007 and 17-5-2008 wherein it were held that the Labour Court had no jurisdiction with regard to matter of post office. Another judgment of Federal Service Tribunal Karachi bench also referred wherein the employee of post office approached the Federal Service Tribunal being civil servant. The learned counsel for respondent strongly supported the judgment impugned and submitted that post office is an establishment as defined under provisions of Standing Order Ordinance, 1968 and other relevant Labour Laws. Further contended that under Standing Order Ordinance the respondent/applicant fall within the definition of worker/workman. Lastly contended that instant appeal is hopelessly barred by time and no reasonable cause mentioned in application for condonation of delay.

3. This appeal has been admitted on 17-9-2013 subject to limitation. Apparently there is a delay of long period. In such situation it is necessary to resolve such delay because the point of limitation is a pure question of law.

4. The grievance application was filed before learned Labour Court on 7-9-2012 and on 17-9-2012 the appellant/respondents were proceeded ex parte. After completion of ex-parte evidence judgment was announced on 20-11-2012. Record reveals that on 18-7-2013 application for obtaining certified copy was submitted on behalf of respondents and the same was prepared and delivered on 23-7-2013. Civil Miscellaneous Application No. 24 of 2013 is an application on behalf of appellant/ respondents for condonation of delay. The facts mentioned in the application for condonation of delay at Para No.2 is relevant which is reproduced as under:

"That in fact recently received the notice with regard to pass the judgment during the pendency of the Application of the respondent. However, immediately application was moved for obtaining the certified copy and received the same. The matter was brought into the notice of the Higher Authorities of the Postal Services. In fact, no notice was served upon the appellants, but it has transpired after obtaining the copy of the judgment that the notice of the service issued by the Learned Trial Court was man-overed by the respondents, rather has mixed up with some officials, whose are trying to extend the benefit in favour of the respondents and obtain the ex-parte judgment fraudulently by concealing the facts." From above Para it reveals that notices were not served upon appellant/respondents rather notices of the trial court was man-overed by the respondent/applicant and some officials mixed up and tried to extend the benefit in favour of respondent/applicant and got ex parte judgment fraudulently by concealing the facts. For a delay of condonation section 5 of Limitation Act is applicable in BIRA, 2010 which read as under, "[Section 5] Extension of period in certain case

Any appeal or application for [a revision or] a review of judgment or for leave to appeal or any other application to which this section may be made applicable [by or under any enactment] for the time being enforce may be admitted after the period of limitation prescribed therefore, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation

The fact that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section." In view of examples of sufficient cause and delay of each and every day which has not been explained for the reason that Para No.2 of application does not disclosed the role of some officials who tried to extend the benefits to respondent/applicant as well as their names has not been mentioned. It was also not mentioned that how the notices were man-overed. In such view the same is not a sufficient cause.

5. For the sake of arguments if the period from date of announcement of judgment i.e. 20-11-2012 and after delivery of certified copy of impugned judgment dated 23-7-2013 be excluded for the reason that the appellant/respondents were unaware about the impugned judgment even than after obtaining the certified copy of impugned judgment there is a delay of 54 days and this period has not been explained. For the cost of repetition the certified copy of impugned judgment received on 23-7-2013 and appeal filed before this Tribunal on 17-9-2013 but no explanation offered neither in said application nor during the course of arguments.

6. Learned counsel for appellant/respondents based his arguments with regard to limitation and contended that the judgment was passed without law full jurisdiction is a void order against which no limitation runs.

7. Again for the sake of arguments if this plea be considered even then it is settled principle of law that void order be set aside by process of law within reasonable period. In a reported judgment in PLD 2003 Karachi 691 it is held, "Void Order:

Effect of void order

Principles

Void order is nullity in the eye of law and does not confer any rights on the parties

Party adversely affected by void order should take resort to proper proceedings for getting the same set aside in accordance with the provisions of law as and when it comes to the knowledge of the affected party." Similar view taken by honourable Supreme Court of AJ&K in another judgment reported in 2003 YLR 1752 wherein held:

"A void order must be challenged within a reasonable time if the same adversely affects the interest of a person. Indolence and negligence of such person cannot be excused." As stated above that if it presumed that the appellant/respondents became in knowledge about the impugned order after receiving certified copy on 23-7-2013 but came forward and filed instant appeal on 17-9-2013 without any reasonable ground. Similarly in a reported judgment 2010 PLC 104 it is held:

"Ss. 3 and 5

Limitation

Limitation would shut the door and bar the remedy

Statutes of limitation were statutes of respose

It was in the interest of Society and the community at large that after a certain lapse of time the citizens and the parties must be allowed ease of relaxation of their vigils." In a similar case with regard to condonation of delay the honorable Supreme Court of Pakistan in PLD 2003 Supreme Court 628 held:

"When the delay in filing the appeal was seemingly due to mere negligence and carelessness of the appellant who failed to pursue his case with due diligence, he was not entitled to any indulgence by the Supreme Court

When on the day period of limitation expired, copies of the impugned judgment were available with the appellant and appeal could have been filed in time, delay regarding time consumed between preparation of copies and its delivery was condoned but each day after expiry of period of limitation, having not been satisfactorily explained appeal was liable to be dismissed as time-barred

Involvement of valuable rights would not furnish a proper ground for condonation of delay in a civil matter

Door of Justice was closed after the prescribed period of limitation had elapsed and no plea of injustice, hardship or ignorance could be of any avail unless the delay of each day was properly explained and accounted for." The point of limitation and condonation of delay is a pure question of law and Courts are under legal obligation to take notice of the same if the point has not been raised by the parties. Honorable Supreme Court of Pakistan in PLD 2002 Supreme Court 403 observed as under:

"(b) Limitation

Question of limitation

Duty of Court

Scope

Bounden duty of Court to notice the question of limitation, irrespective of the fact whether the question had been agitated or not

Any order or judgment passed by Trial, Appellate or Revisional Courts should be indicative of the fact that the Courts concerned were not only aware but were conscious regarding the question of limitation to be dealt with the same diligently with application of mind prior to dilating upon and deciding the controversy on merit because disposal on merit alone was not sufficient to presume that the delay was condoned." The law, judgments of superior Courts and discussion made hereinabove the appeal is hopelessly barred which accurated a right in favour of respondent/applicant. Therefore cannot be condoned without any sufficient cause.

8. The upshot of above discussion is that the appeal filed after limitation period cannot be proceeded ahead. Consequently the order impugned is upheld and appeal is dismissed with no order as to cost.

9. The copy of order along with original record of trail Court be sent to trial Court. Case after completion be consigned to record. HBT/6/BLT Appeal dismissed.