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Petitioner: MUHAMMAD RAFIQUE VS Respondent: WAPDAHonorable Justice CH. HASAN NAWAZAnwar Ali,Hamid Ali Shah
1989 P L C (C
1989 P L C (C.S.) 417
[Federal Service Tribunal]
Before Ch. Hasan Nawaz and Rasheed‑ud‑Din Arshad Members
MUHAMMAD RAFIQUE
Versus
WAPDA
Appeal No. 285(L) of 1983, heard on 26th September, 1988.
(a) Service Tribunals Act (LXX of 1973)‑‑
‑‑‑S. 4‑‑Termination of service and non‑payment of arrears of salary‑‑No order of termination was ever passed in writing nor notice thereof given‑‑Employee was thus entitled to emoluments for the period between the period of stoppage of work by employer and the date when' his claim was refused, in absence of any notice in writing, regarding termination of his services.
(b) Service Tribunals Act (LXX of 1973)‑‑
‑‑‑S. 4‑‑Appeal‑‑Limitation‑‑Condonation of delay‑‑Claim for non‑payment of salary for specific period‑‑Respondent denying such claim on the ground that employee's services having been terminated, he could not claim payment of salary and that appeal against non‑payment of salary was beyond limitation‑ Respondent failed to prove that such services had been terminated in writing and employee had been informed about same‑‑Time would thus not be deemed to have started running against employee, when he had not been informed of termination of his services‑‑Employee had been pursuing his case in good faith before Labour Courts under the impression that he was a worker‑‑There being ample justification for condonation of delay particularly when respondents did not appear from record to have pleaded against application for condonation of delay‑‑Appeal was thus deemed to have been filed within limitation.
Anwar Ali for Appellant.
Hamid Ali Shah for Respondent.
Date of hearing: 26th September, 1988.
JUDGMENT
CH. HASAN NAWAZ (MEMBER).‑‑This judgment purports to de; 0 with an appeal under section 4 of the Service Tribunals Act, 1973, where it is ;:rayed that the order of termination of appellant's services may be set aside with all consequential benefits including payment of arrears of salary.
2. These are the facts in the background. The appellant was employed as a surveyor by the respondent authority on 1‑3‑1979. He states that no salary was, however, paid to him for the period from 1‑6‑1980 in spite of fact that his job was that of a permanent nature and that he had regularly been going to the place of his work. It is further pleaded that he was not allowed to perform his duty, even though no order in writing had been passed regarding the termination of his services.
3. It is conceded by the respondent authority that no payment was made to the appellant for the period from 1‑6‑1980. The defence in the main, is that he was only a temporary employee and that his services were rightly terminated. The appeal has also been opposed on the legal grounds that it is bad for non‑joinder of necessary party and that it is liable to dismissal as time‑barred.
4. After service of a grievance notice under section 25‑A of the Industrial Relations Ordinance, 1969 on 2‑2‑1980, the appellant filed a petition under the same section on 24‑2‑1981 with Punjab Labour Court No. 1, Lahore, where it was prayed that the respondent be directed to allow the petitioner to perform his duties and that arrears of salary may also be paid to him from 1‑6‑1980 to 31‑1‑1988.
5. The petition was, however, dismissed by the learned Presiding Officer of the Labour Court on 16‑4‑1981 as time‑barred. The appellant successfully challenged the validity of this order in an appeal under section 37(3) of the Ordinance, where it was held that the grievance petition was within time. The case was remanded to the Labour Court on 27‑6‑1982 for a decision on merits. The learned Labour Appellate Court held that there was nothing on the record to show that the order of termination of appellant's service passed in 1980 was ever conveyed to him. It was found, on the basis of material on the record, that the grievance notice was served within time after the appellant learnt about the termination of his services.
6. The record bears out that the appellant made a representation to the respondent‑authority, praying that the appellant's salary for the period from 1‑6‑1980 to 31‑1‑1981 may be paid to him alongwith the travelling allowance. This representation was rejected by the authority on 12‑1‑1981, with the observation that there is no justification for payment of dues to the appellant after 31‑5‑1980, on account of the work having been stopped by the Project Director, C.M.O.
7. Although neither of the parties has so pleaded, what can clearly be gathered from the appellant's grievance: petition under section 25‑A of the Ordinance and the orders passed by the Labour Court (Annex A and Annex. C) is that the appellant had been employed in March, 1979, against a work charged post. His services were terminated on 22‑9‑1979 and he was reinstated on 24‑1‑1980. Any way, it is common ground that the appellant actually worked uptil 31‑5‑1980.
8. The respondent's pleadings regarding the date of termination of appellant's services are rather evasive. It has not been clearly stated as to when the orders were passed. This apart, it is not possible to get hold of any document to support a finding as to when exactly the of order of termination of service was passed. Letter dated 12‑5‑1980 addressed by the Senior Engineer to the Project Director no daub causes an indication of the fact that the services of entire work charged establishment were terminated on 10‑5‑1980. But still the letter does not provide us with any justification for a definite conclusion in respect of the date of termination of the appellant's services, especially when it is read in juxtaposition with letters dated 15‑7‑1980, 8‑9‑1980 and 8‑12‑1980 on the record, which give us a clear indication of the fact .that the appellant was still in service during the period in dispute. On the basis of this material, we feel no hesitation in saying that no order of termination of appellant's services was ever passed in writing by the respondent‑authority before order dated 12‑1‑1981 (Annex. F) which said that he was not entitled to any dues after 31‑5‑1980, because of stoppage of work at Pir Mahal by the Project Director. This order seems to have been conveyed to the appellant by the respondents by the end of January, 1981, which is suggested even by his grievance petition dated 24‑2‑1981 where he requested for payment of arrears of salary for the period from 1‑6‑1980 to 31‑1‑1981. We hold that e was entitled to salary for this period in the absence of any notice in writing regarding l the termination of his services.
9. As for the question of limitation, it could not be deemed to have started running against the appellant, when he had not been informed of the termination of his services. The respondents have denied that this order was verbal. If this be so, there is no reason why it should not have been communicated to him. Since he was not aware of any such order, the appellant was within time in filing the present appeal, especially in view of the fact that he had been pursuing his case in good faith before the Labour Courts under the impression that he was a worker and that they had the jurisdiction to grant relief to him. As already pointed out, even his grievance notice and the consequential petition under section 25‑A of the Ordinance were held to have been within time by the learned Labour Appellate Tribunal. We feel that there is ample justification for condonation of delay under the circumstances of this case, particularly when the respondents do not appear from record to have pleaded against the application for condonation of delay.
10. It is, therefore, held that the applicant had been in the respondent's services as a work‑charged employee for the period from 1‑6‑1980 to 31‑1‑1981 and that the respondent is under a legal obligation to pay his emoluments for this period. They are accordingly directed to make payment of arrears of salary to the appellant for the period from 1‑6‑1980 to 31‑1‑1981. There will be no order as to costs under the circumstances of this case.
A.A./441/Sr. F Appeal allowed.