2018 PLP 18 (PLC N)

JUSTICE (RETD.) CH. MUHAMMAD TARIQ, CHAIRMAN.

These two cross petitions i.e. petition under section 12(2), C.P.C. and complaint under section 47(8) of PIRA, 2010 for setting aside orders dated 20.3.2013 passed by this Tribunal and order dated 13.6.2012 passed by learned Punjab Labour Court No.2, Lahore respectively whereby complaint filed by the respondent No.2 Yasmin Kausar for implementation of order of reinstatement of the respondent with all back benefits. Muhammad Afzal etc. petitioners (who hereinafter referred as "petitioner") while Yasmeen Kausar (who hereinafter referred as "respondent").

2. Brief facts of the case narrated in the petition under section 12(2), C.P.C. are that the respondent Yasmeen Kausar, was appointed on temporary basis. She never completed more than 89 days. She used to be given extension by re-appointing her by the Cantonment Executive Officer who was not competent to appoint respondent. In this connection, it is very humbly submitted that law on this point is very clear. Under Rule 7 of the Pakistan Cantonment Servant Rules, 1954, the appointing authority of the Junior Computer Operator in BS-10 was not in accordance with law. Under Rule 7(5) of the Rules ibid if any appointment is made by the Cantonment Executive Officer that must be got approved by the competent authority by issuing a notification under Rule 7(5) and the sanction is to be obtained by the Director but in case in hand nothing has been done and the applicants were never informed about the appointment of Junior Computer Operator. Even otherwise, under Rule 9 if the appointment is made by the Cantonment Executive Officer, it must be got extended with the sanction of the President provided that such appointment shall be through the Director of Military Lands. While in this particular case, it has not been done, so the basic appointment, is illegal and in violation of law and the dictum laid down by the Hon'ble Supreme Court of Pakistan. The petitioners who were serving the department for the last more than 4 years are entitled for the promotion against the post of Junior Computer Operator as per policy of the Government of Pakistan duly issued by the Ministry of Defence, Government of Pakistan in this behalf. The order has been obtained by concealing the facts that the appointing authority of the respondent is the applicant/petitioner and the Cantonment Executive Officer had no jurisdiction whatsoever under the law to make the appointment as per notification issued on 9.2.2011, therefore, the basic appointment of the respondent from 24th of April, 2009 is basically void illegal. No publication was made in the newspaper inviting the applications for the post of Junior Computer Operator which is violation to the policy of the Federation of Pakistan and the judgments of the Hon'ble Supreme Court of Pakistan are very evident on this point that if the appointment has been made in violation to the policy and rules those are to be stuck down. The learned Punjab Labour Court No.2, Lahore has no jurisdiction to entertain the application of the employee of the Cantonment Executive Officer on the score that she was an employee of the Federation of Pakistan and was never a workman. The Appellate Tribunal also did not care to see that the employee of the Cantonment Board are only to be dealt with by the law of the Federation. In this connection, reliance is placed on 2011 SCMR 743 as the order passed by the learned Labour Court was without jurisdiction. Even otherwise, the principle of estoppel cannot be attracted in the case as the counsel for the petitioner while appearing in the writ petition gave the statement which is not binding, hence, it has no legal sanctity behind it. It is also pointed out that if some consent is given that neither confer any jurisdiction to the Court or Tribunal unless it is confirmed or barred by law as the respondent had no authority whatsoever under the law to proceed in the matter, therefore, the same is liable to be withdrawn. It is mandatory on the part of the authorities to pass proper orders and the order of termination was in accordance with law but the respondent No.3 got the petition filed with mala fide and with the connivance with respondent and contended that petition be accepted, order dated 20.3.2013 and order dated 13.6.2012 passed by Labour Appellate Tribunal and learned Labour Court respectively be set aside.

3. The respondent Yasmeen Kausar, has also filed a complaint before this Tribunal in which he has prayed that the respondent department be directed to implement the order and respondent department be also punished for non-compliance the order passed in favour of respondent Yasmeen Kausar.

4. Arguments of both the sides heard and record perused.

5. The respondent Yasmeen Kausar, was appointed as Junior Computer Operator on 24.10.2009 for 89 days but her services were extended from time to time till 17.1.2011. After serving with the department for about more than 9 months the respondent asked for her regularization but instead of regularizing the respondent, the department terminated her service vide letter dated 22.4.2011. In the circumstances the respondent filed a grievance petition which was allowed by the learned Punjab Labour Court No.2, Lahore vide its judgment dated 13.6.2012. The learned Labour Court accepted the grievance petition set aside the termination order and directed the petitioner department to reinstate the respondent Yasmeen Kausar with all back benefits.

6. Feeling aggrieved from the judgment dated 13.6.2012 passed by the learned Labour Court, department filed appeal before this Tribunal which was dismissed on 20.3.2013 and this Tribunal upheld the order passed by learned Labour Court below in favour of the respondent No.2.

7. The petitioner further assailed both the judgments i.e. 20.3.2013 and 13.6.2012 passed by this Tribunal and learned Labour Court respectively before the Hon'ble Lahore High Court, Lahore in Writ Petition No.13014 of 2013.

8. The Hon'ble Lahore High Court, Lahore after hearing both the sides vide judgment dated 24.12.2014 dismissed the writ petition in the following terms:-- "The basic grievance of the petitioners is that the Labour Court did not have the jurisdiction as the Respondent No.3 was not a workman. Admittedly, the Respondent No.3 was a daily wager, appointed five times for 89 days. The relevant Rules do not provide for appointment of daily wagers. It provides for temporary appointment under Rule 9 of the 1954 Rules. The Respondent No.3 was not appointed under the 1954 Rules as her work spell was only for 89 days and each time she was reappointed for another spell of 89 days. That being the case, the 1954 Rules were not relevant to her case. The Petitioner was hired for skilled work by the Respondents for 89 days, successively. She is a workman and the Board is an employer within the meaning of section 2(C) and (i) of the Standing Orders. Furthermore, the Petitioner first objected to the jurisdiction of this Court vide order dated 6.11.2013 and then objected to the remediless. Under the circumstances the Petitioner cannot take advantage of its own objections and prevent the Petitioner from pleadings its case before the Labour Court. Hence, no case for interference is made out. Petition dismissed."

9. It is pertinent to mention herein that the judgment passed by the Hon'ble High Court against the petitioner was further assailed before the august Supreme Court of Pakistan in C.P. No.205/L of 2015 which was also dismissed on 29.4.2015 and the august Supreme Court of Pakistan refused to grant leave.

10. After being remained unsuccessful till august Supreme Court of Pakistan the petitioner has once again filed the instant application under section 12(2), C.P.C. on the grounds mentioned therein.

11. The main focused of arguments learned counsel for the petitioner was that respondent joined hands with the officials of petitioner department and succeeded in obtaining her appointment by concealment of relevant fact, misrepresentation and in league with the officials of petitioner department. He further contended that before appointment of respondent no advertising was made in the newspaper which was mandatory. The petitioner also challenged the jurisdiction of learned Labour Court below as well as of this Tribunal and prayed that the petition under section 12(2), C.P.C. be accepted as prayed.

12. The respondent was appointed on 24.10.2009. According to the arguments of learned counsel for the petitioner the appointment of respondent was collusive, a result of misrepresentation and without adopting codal formalities. The appointment was made on 24.10.2009 by the colleagues of petitioner establishment in league with the respondent.

13. In the light of arguments of learned counsel for the petitioner the date of appointment of respondent is 24.10.2009 which was well within the knowledge of petitioner hence, this petition is barred by limitation.

14. Secondly, if the respondent has played fraud with the petitioner department even in such case petition under section 12(2) C.P.C. is not maintainable before this forum because it is not case of petitioner that the respondent has played a fraud or she is guilty of misrepresentation or concealment fact before this Tribunal or the learned Labour Court.

15. The respondent was appointed as Junior Computer Operator on 24.10.2009 her service was extended till 15.2.2011. The services of respondent were terminated on 22.4.2011. Against her termination the respondent firstly served the petitioner with a grievance notice, thereafter filed a grievance petition which was accepted vide judgment dated 13.6.2012 by the learned Labour Court.

16. During the argument, this Tribunal inquired from the parties that what were the qualification for the post of respondent. The parties informed this Tribunal that for the appointment of Junior Computer Operator the candidate shall be a matriculate. While the respondent is a graduate with one year Computer Diploma. The qualification of respondent is not disputed. On the cut-off date, the respondent was qualified in all respect for the post of Junior Computer Operator thereafter, the appointment of employee could not be challenged on the ground of irregularities or lapses on the part of department. In such like cases action must be taken against the appointing authority instead of penalizing the employee relied on law laid down by the Hon'ble Supreme Court of Pakistan as:- 2006 SCMR 678 and 2009 SCMR 412.

17. The question of jurisdiction raised by learned counsel for the petitioner was already decided by the Hon'ble Lahore High Court, Lahore in its judgment dated 24.12.2014 passed in Writ Petition No.13014/2014. Thereafter to re-agitate the same matter in application 12(2), C.P.C. before lower forum constitute contempt of court of Hon'ble High Court.

18. In the earlier round of litigation, the petitioner remained unsuccessful up till honourable Supreme Court of Pakistan thereafter the petitioner has filed fresh application under section 12(2), C.P.C. which is on the face of its mala fide and it is not proceedable in the light of law laid down by the august Supreme Court of Pakistan in case:- Mst. Sabiran Bibi and others v. Ahmad Khan and others reported as 2008 SCMR 226.

19. The record available on the file require that this application under section 12(2), C.P.C. petition be dismissed without any further probe. Relied on:- 2000 SCMR 296.

20. The upshot of the above discussion is that petitioner has filed this petition with ulterior motives and mala fide intention. In fact it is a war of ego. It is not digested by the petitioner, that how an employee of very low grade stand before him and demand her rights granted by the constitution. Therefore, this petition under section 12(2), C.P.C. is dismissed with a costs of Rs.50000/- (fifty thousands) copy of this order be sent to the learned Punjab Labour Court No.2, Lahore, who is directed to recover the amount of costs from the petitioners individually/collectively and be paid to the respondent. The Learned Court may recover the amount of costs by adopting coercive methods if so needed.

21. So far as the complaint filed by the respondent is concerned. The respondent is directed to file the same before the Honourable Court who passed the final order. Relied on:- 2000 SCMR 900 The complaint is returned to the respondent for submitting it before the proper forum. With this observation both the petitions are disposed of. MQ/3/PLT Application dismissed.