2002 PLP (C (PLC(CS))

(d) Service Tribunals Act (LXX of 1973)‑‑‑ ‑‑‑‑S.4‑‑‑Martial Law Regulation 52 (C.M.L.A.'s.), 1981‑‑‑Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983), Arts. 9 & 32‑‑‑Limitation Act (IX of 1908), Ss. 5 & 14‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Employee serving as Cadet Pilot. in Pakistan International Airlines was removed from service on 11‑9‑1981 under Martial Law Regulation 52‑‑‑National Industrial Relations Commission and Review Board directed his reinstatement in service‑‑‑Corporation through letter, dated 13‑12‑1990 gave an option to employee to get lump sum compensation in lieu of reinstatement, but he submitted joining report on 1‑2‑1990 Employee joined another Airlines on 12‑2‑1990 under a contract with an intimation to Corporation that he would report for assignment of his duty in Corporation thereafter‑‑‑Corporation granted such time to employee and required him to pay secondment charges @ 25 % of his basic pay‑‑‑Employee after expiry, of lump sum compensation in lieu of his reinstatement in service from date of his removal under M.L.R. 52 till 31‑1‑1990, which dismissed his claim on 29‑6‑1994 and his appeal before President of Pakistan too was dismissed‑‑‑employee on 18‑1‑2000 filed appeal before Service Tribunal against order of Wafaqi Mohtasib, which was accepted‑‑‑Validity‑‑‑Wafaqi Mohtasib had no jurisdiction in the matter‑‑‑Appeal filed before Service Tribunal was time‑barred‑‑‑Fault in approaching wrong forum for redressal of grievance would not at all be a reasonable. cause to condone the delay‑‑ Employee was offered two options through leter, dated 13‑12‑1990, but he accepted the offer for re‑employment and reported for same on 1‑2‑1990 as such he had waived his right to claim the compensation‑‑‑Cut‑ date for availing an option for compensation as affectee of M.L.R. 52 was 31‑12‑1990‑‑‑Corporation had been asking the employee to join its service on terms of secondment, but on his failure to do so, his services were terminated and his request for compensation had rightly been disallowed‑‑ Employee had not paid requisite contribution towards his self‑arranged secondment‑‑‑Employee had not approached the Court with clean hands as he had concealed the fact of being already in employment on contractual basis with another Airlines at the time of submitting joining report in Corporation‑‑‑Supreme Court accepted the appeal and set aside the impugned judgment. Fazal‑i‑Ghani, Advocate Supreme Court for Appellant. Respondent in person. Date of hearing: 28th March, 2002. ABDUL HAMEED DOGAR, J.‑‑‑Leave to appeal was granted in this matter to consider, inter alia, the following points: (1) Whether there was any legal justification to the Service Tribunal to condone the delay of 9 years in preferring the appeal? (2) Whether the respondent having failed to joint the service and having remained absent without any permission could claim any lump sum compensation? (3) Whether in view of removal of respondent under Martial Law Regulation 52 the Review Board could hold his dismissal as illegal?

2. This appeal by the leave of Court is directed against the judgment dated 23‑11‑2000 passed by the Federal Service Tribunal, Islamabad (hereinafter called as 'the Tribunal') in Appeal No.77(K)(CE) of 2000 whereby the appeal of respondent Captain M.S.K. Lodhi was allowed.

3. The facts relevant for the disposal of this appeal are that respondent joined a Cadet Pilot in Pakistan International Airlines Corporation (herein referred to as 'the Corporation') in April, 1969 and was removed alongwith others under Martial Law Regulation 52 on 11‑9‑1981. They approached the N.I.R.C. and their dismissal was held to be arbitrary, capricious, void and improper and the Review Board directed respondent's re‑employment in the service. As a result thereof, he was given an offer letter of reinstatement dated 31‑1‑1990. The respondent and others were also given an option to get compensation in lump sum in case they did not avail the aforesaid offer. The respondent, however, accepted the offer of re‑employment and submitted joining report on 1‑2‑1990 with the request that his seniority and service would be counted from the above date. He, however, did not join the Corporation but vide letter, dated 12‑2‑1990, intimated that he was serving with Saudi Arabian Airlines under a contract of service till March, 1991 and would report to the Corporation immediately thereafter for assignment of his duty. The said time was granted and the respondent was required to pay secondment charges @ 25 % of his basic pay as per policy of the Corporation. The matter thereafter prolonged and one year time allowed to him expired, as such he went on to move applications one after the other. Subsequently, he moved to Wafaqi Mohtasib (Ombudsman) who dismissed his appeal on 29‑6‑1994. Thereafter, he filed appeal before the President of Pakistan which too was dismissed on 18‑1‑2000. Thereafter, he preferred an appeal before the Tribunal on 1‑3‑2000 which was allowed vide the impugned order and the Corporation was directed to make payment of lump sum compensation from the date of his removal under M.L.R. 52 till 31‑1‑1990, after deducting the secondment charges @ 25 5o of the basic pay.

4. We have heard Mr. Fazal‑‑i‑Ghani, learned Advocate Supreme Court for the appellants and Mr. M.S. Lodhi, respondent who appeared in person and have gone through the record minutely.

5. Mr. Fazal‑i‑Ghani, learned Advocate Supreme Court for the appellants at the very outset submitted that in view of the law laid down by this Court in Civil Petition No.23‑K of 2000 (Shafatullah Qureshi v. Federation of Pakistan) the Tribunal had no jurisdiction in the matter as the respondent had challenged the order dated 29‑6‑1994 of the learned Wafaqi Mohtasib before it. He next argued that the respondent by submitting joining report gave up his right to claim compensation. Irrespective of this, the respondent was allowed one year time to complete his contractual period of service with Saudi Arabian Airlines, even then he did not join the Corporation. According to him, the Corporation vide letter, dated 16th December, 1993 clearly appraised the respondent that in case of failure to report for duty, the offer of re‑employment offered vide letter, dated 31‑1‑1990 shall be treated as cancelled. In the same letter, it was also mentioned that the respondent neither joined the Corporation as per undertaking nor made requisite payment of self‑arrangement secondment for a period of one year as such his case for compensation was also declined. According to the learned counsel, admittedly no departmental representation or appeal before the Tribunal was preferred by the respondent against this letter, therefore, the appeal before the Tribunal was barred by nine years and was liable to be dismissed on this score also.

6. While controverting the above contentions, the respondent argued that he had been agitating for the claim of the compensation from the very beginning and used to roam from pillar to post but his request was not acceded to by anyone. He referred the letters dated 4‑6‑1990, 18‑7‑1990, 12‑8‑1990 and 26‑8‑1990. addressed to the Corporation asking for the compensation but all in vain. He lastly submitted that the appeal before the Tribunal was within time as his representation was lastly disallowed by the Corporation on 4‑2‑2000.

7. Admittedly, the appeal filed by the respondent before the Tribunal was hopelessly time‑barred. The fault in approaching the wrong forum for redressal of the grievances would not at all be a reasonable cause to condone the delay. Para. No.5 of the letter dated 31‑1‑1990 clearly mentions that in case the respondent failed to avail the offer of joining the service for any reason, best known to him, he would be entitled to a lump sum compensation in lieu calculated at the rate of one‑third of the basic pay and full house rent from the date of ceasure of employment till 31‑1‑1990. According to the above mentioned letter, the respondent was offered two options and was at liberty to avail anyone of them. He in his joining report, accepted the offer for re‑employment and reported for same on 1‑2‑1990 as such waived the right of claim of compensation. Moreover, he had concealed the fact of being already employed on contractual basis with Saudi Arabian Airlines at the I time of submitting joining report as such he had not approached the Court with clean hands. Irrespective of the above, the respondent was extended one year time to join the Corporation on self‑arranged secondanment alongwith the other affectees who were removed from service under M.L.R. 52 vide letter dated 14‑5‑1990 but he failed to avail that opportunity and admittedly did not pay the requisite contribution in respect of his self‑arranged secondment. As per letter, dated 26‑12‑1990 of the Corporation, it has been mentioned that no further extension of secondment tenure would be granted to the respondent and if he failed to resume duty, he would be deemed to be terminated without further notice the cut date for availing an option for compensation by the affectees of M.L.R. 52 as per letter dated 13‑12‑1990 of the Corporation was dated 31‑12‑1990. The Corporation had been asking the respondent to join service uptill 31‑3‑1991 on the term of secondment and sent such letters dated 3‑1‑1991 and 17‑2‑1991, even then he did not respond and join the service which was accordingly terminated and his request for compensation was thus rightly disallowed. The case of Shafatullah Qureshi v. Federation of Pakistan (supra) supports the version of the Corporation that Wafaqi Mohtasib had no jurisdiction in the matter. 8: For what has been discussed above, we are of the considered opinion that the Corporation has succeeded in proving its case. Accordingly the respondent is not entitled to the relief claimed. The appeal is allowed and the impugned judgment dated 23‑11‑2000 is set aside. S.A.K./P‑52/S Appeal allowed.