2017 PLP 12 (PLC N)

JUSTICE (R) SAGHEER AHMED QADRI, CHAIRMAN.

The respondent Niaz Ahmad, Ex-Meter-reader filed grievance petition on 30.08.2007 under section 46 of IRO, 2002 before the learned trial court mentioning the facts that he initially was appointed as Meter-reader on 26.10.1998 and had been performing his duties when on 21.09.1999 he was compulsorily retired under the allegations that he on 09.07.1999 had shown ten advance units in the account of M/s Aziz Tanneries as well as he kept pending certain units in the account of one Ghulam Muhammad of Chak No.6/11-L on 04.08.1999. A show-cause notice was issued: and he denied the allegations but without affording an opportunity or conducting any regular inquiry in summary manner he was declared compulsorily retired as mentioned above. The respondent filed an appeal before Service Tribunal which was rejected on 13.04.2004 and he preferred CPLA No.2947-L/2004 which was abated on 18.08.2007 and thereafter he sent fresh grievance notice and filed the instant grievance petition challenging his retirement having been passed without any lawful justification and due process of law.

2. This grievance petition was replied by the appellant department raising nine preliminary objections having been filed without any cause of action with mala fide. It was further objected that departmental appeal was not filed by the respondent within time. On merits it was agitated that as the respondent misconducted, hence was rightly retired compulsorily vide impugned order dated 21.09.1999. It was prayed that grievance petition be dismissed.

3. Learned trial court recorded the statement of Niaz Ahmad as Pw-1 wherein he reiterated his stand mentioned in the grievance petition and while getting exhibited documents Ex.P.1 to Ex.P.14 closed the evidence. On behalf of the appellant-department one Mehar Allah Yar XEN appeared as RW-1 and submitted his affidavit Ex.R.1 reiterating the stand mentioned in the written reply while getting exhibited documents Ex.R.2 to Ex.R.5. He was cross examined and learned counsel for the appellant while getting exhibited documents Ex.R.6 to Ex.R.10 and application Mark-A closed the evidence.

4. Learned trial court vide impugned judgment dated 15.01.2014 allowed the grievance petition with the direction to reinstate the respondent and also granted 30% back benefits. Feeling aggrieved the appellant-department has preferred this appeal.

5. Learned counsel for the appellant contends that the grievance petition filed by the respondent was barred by limitation as initially he filed departmental appeal which was dismissed and thereafter he filed appeal before Federal Service Tribunal, same was also dismissed and ultimately he went before the honourable Supreme Court of Pakistan in CPLA that too was abated as withdrawn; that the finding of learned FST is still in field, hence the judgment passed by the learned trial court is without lawful justification, it be set-aside. While relying on 2015 SCMR 380 titled United Bank Limited and others v. Noor-un-Nisa and others, 2011 SCMR 676 titled Raja Khan v. Manager (Operation) Faisalabad Electric Supply Company (WAPDA) others, 2007 SCMR 513 titled Muhammad Aslam v. WAPDA and others, 2016 PLC 25 titled Chief Executive Officer MEPCO v. Punjab Labour Appellate Tribunal No. II, Multan, etc., 2012 SCMR 195 titled Sajjad Hussain v. Secretary, Ministry of Railways, Islamabad and others and copy of office memorandum dated 19th April, 2010, copy of repeal RSO, 2000 and copy of gazette of Pakistan dated 6th March, 2010 prayed that this appeal be dismissed.

6. Learned counsel for the respondent opposed the arguments advanced by the learned counsel for the appellant on the ground that no regular inquiry whatsoever was conducted before passing the order of compulsorily retirement which rightly was set-aside by the learned trial court; that as the respondent has already been superannuated and judgment passed by the learned trial court was well reasoned but department has filed the appeal without lawful justification. He while relying on 1997 PLC (C.S.) 817 titled Basharat Ali v. Director, Excise and Taxation, Lahore and another, PLD 1985 SC 134 titled The Deputy Inspector General of Police, Lahore and others v. Anis ur Rehman Khan and 1993 SCMR 603 titled Alamgir v. Divisional Forest Officer, Multan and others, prayed that this appeal be dismissed.

7. I have heard learned counsel for the parties and perused the records of the trial court minutely.

8. The first objection raised by the learned counsel for the appellant about the maintainability of the grievance petition having been filed beyond the period of limitation as according to him grievance arisen in favour of the respondent in the year 1999 and this petition was filed in the year 2008. There are admitted fact on record that after having been compulsorily retirement vide order dated 21.09.1999, the respondent preferred an appeal before Service Tribunal which was dismissed on 13.04.2004 and CPLA No.2947-L/2004 was filed before the honourable Supreme Court of Pakistan which was according to the order present on record (Ex.P.5) dated 09.08.2007 was dismissed as having been abated in the light of judgment passed by the honourable Supreme Court of Pakistan cited as PLD 2006 SC 602 titled Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others. It is admitted on record that the grievance petition after passing the said judgment by the honourable Supreme Court of Pakistan was filed on 30.08.2007. The sub-paras B & C of Para 109 of the judgment (Mobeen-ul-Islam's case) supra are hereby reproduced; (b) The proceedings instituted either by an employee or by the an employer, pending before this Court, against the judgment of the Service Tribunal, not covered by category (a) before this Court or the Service Tribunal shall stand abated, leaving the parties to avail remedy prevailing prior to promulgation of section 2-A of the STA, 1973. (c) The cases or proceedings which are not protected or covered by this judgment shall be deemed to have abated and the aggrieved person may approach the competent forums for redressal of their grievances within a period of 90 days and the bar of limitation provided by the respective laws, shall not operate against them till the expiry of stipulated period.

9. The respondent in the light of sub-para C of Para 109 of the judgment supra immediately sent grievance petition notice and filed the grievance petition within prescribed period, hence the grievance petition was filed within time. The objection raised by the learned counsel for the appellant is without any lawful justification.

10. Now comes to the merits of the case, the statement of RW-1 Mehar Allah Yar XEN was recorded on behalf of the appellant-department who in his statement while during cross examination admitted:

11. There is no cavil to the proposition that the respondent is a meter-reader and clearly falls within the category of worker/workman as defined under section 2(i) of Industrial and Commercial Employment (Standing Orders), Ordinance, 1968. The definition of misconduct on the basis of which major penalties can be imposed on worker/workman are defined in Para 15(3) of Standing Orders, Ordinance, 1968. The relevant provisions applicable on the facts and circumstances of the case are hereby reproduced: (3) The following acts and omissions shall be treated as misconduct. (a) (b) theft, fraud, or dishonesty in connection with the employer's business or property. (c) willful damage to or loss of employer's goods or property. (d) (e) (f) (g) (h) (i) (j) (k) (l) It is also further provided under Para 15(4) of Standing Orders, Ordinance, 1968: (4) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct [within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer's] and is given an opportunity to explain the circumstances alleged against him. The approval of [the employer shall be required in every case of dismissal] and the employer shall institute independent inquires before dealing with charges against a workman; [Provided that the workman proceeded against may, if he so desires for his assistance in the enquiry, nominate any workman employed in that establishment and the employer shall allow the workman so nominated to be present in the enquiry to assist the workman proceeded against and shall not deduct his wages if the enquiry is held during his duty hours].

12. In view of the circumstances, in the light of law and procedure provided under Standing Orders, Ordinance, 1968, it is clear on record that no such procedure was ever followed nor any regular inquiry was conducted against the respondent. He was even not issued any charge sheet to defend himself and if the statement of Rw-1 Mehar Allah Yar XEN are seen, no damage was caused due to allege act of misconduct and negligence on part of the respondent to the department, hence in these circumstances, the learned trial court rightly allowed the grievance petition. The judgments cited by the learned counsel for the appellant are not applicable on the facts and circumstances of the present case, hence in these circumstances, no merits in this appeal, it is hereby dismissed.

13. As far as back benefits are concerned as allowed by the learned trial court, the respondent did not challenge those findings, therefore, those findings are upheld, however, as he has been retired after superannuation, therefore if any benefits he had already been received those shall be calculated and remaining benefits if any shall be paid to him accordingly by the appellant-department. File be consigned to the records room after its due completion. The trial court's records be sent back immediately. WA/13/PLT Appeal dismissed.