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Petitioner: DIL BAHADUR KHAN VS Respondent: PAKISTAN ENGINEERING COUNCIL
1999 P L C (C
1999 P L C (C.S.) 1464
[Federal Service Tribunal]
Before Muhammad Ayub Khan and Syed Muhammad Zafar Babar, Members
DIL BAHADUR KHAN
versus
PAKISTAN ENGINEERING COUNCIL through Deputy Registrar, Islamabad
Appeal No. 115‑P of 1998, decided on 28th September, 1998.
(a) Pakistan Engineering Council Employees Recruitment Rules, 1995‑‑‑
‑‑‑‑8. 12‑‑‑Service Tribunals Act (LXX of 1973), Ss. 2‑A & 4‑‑ Probationer‑‑‑Dismissal from service‑‑‑Validity‑‑‑Civil servant appointed as Typist in B.P.S. 5 was dismissed from service on charge of misconduct after one year and two months from his appointment with immediate effect without any notice or conducting formal proceedings against him‑‑‑Civil servant being probationer could have no grievance to agitate his dismissal within probationary period and was also not entitled to any legal notice for conducting formal proceedings against him.
(b) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑Ss. 2‑A & 4‑‑‑Appeal‑‑‑Limitation‑‑‑Delay‑‑‑Condonation‑‑‑Departmental appeal filed by civil servant against his dismissal having remained unresponded, appellant, instead of filing appeal before Service 'Tribunal filed grievance petition before Labour Court which was dismissed on point of jurisdiction, being incompetent‑‑‑Appeal filed by appellant before Service Tribunal after about one year and eight months from order of his dismissal from service, had become tune‑barred by operation of law‑‑‑In absence of any cogent reasons, such inordinate delay in filing appeal could not be condoned.
PLD 1976 SC 195; 1995 PLC (C.S.) 419 and 1976 PLC (C.S.T.) 72 ref.
Wahid Hussain Naqvi for Appellant.
Rao Fazal Khan Akhtar alongwith Rao Abbas Khan, Legal Assistant for Respondent.
Date of hearing: 25th September, 1998.
JUDGMENT
MUHAMMAD AYUB KHAN (MEMBER)‑‑‑Learned counsel for the parties have been heard on 25‑9‑1998 and record perused.
2. Facts of the case, briefly stated, are that the appellant was appointed Typist in B.5 with effect from 1‑8‑1995 by order, dated 29‑7‑1995 (Annexure‑'A') but as luck would have it, he was dismissed from service with immediate effect by order, dated 1‑10‑1996 which is impugned under this appeal. The legal question under consideration is whether by the time of his dismissal from service the appellant was a regular employee of Pakistan Engineering Council or he was still a probationer and in order to resolve this point the rules on the subject known as "Pakistan Engineering Council Employees Recruitment Rules, 1995" (framed under section 25(2'), of .the Pakistan Engineering Council .Act, 1974), rule 12 of which relating to "Probation" is reproduced in verbatim hereunder for ready reference:‑‑
"(12)All selected persons will be on probation for a period of one year which may be extended to two years. On successful completion of probation period the incumbents shall be made regular."
A plain reading of the aforesaid provision of rule 12 indicates that the appellant was still holding the post as a "probationer" and as such in view of this rule he had yet to complete the probationary period upto 1-8‑1997 whereas, in fact, he was terminated with effect from 1‑10‑1996 after a period of about one year and two months. Legally a probationer can have no grievance to agitate his termination within probationary period and for that matter he is also not entitled to any legal notice or conducting formal proceedings against him being a probationer. In the instant case the appellant was not properly conducting himself and he was found indulging in corrupt practices by inducing an incumbent of the office to accept Rs.2,000 from him in return of supplying him "Licence Cards" (vide letter Annexure‑IV at Page‑9)/"Contractors Registration Forms" (vide Para.4 at Page 10 of the parawise comments) and this fact stands fully supported by the statements of two witnesses examined as P. W.1 and P. W.2 by the District Labour Court, Islamabad. on 5‑6‑1997 and 29‑5‑1997 respectively. On the factual side it was stated at the Bar on behalf of the respondents that the appellant had admitted the factum of his default and for that matter had also tendered the apology as is evident at Para.2 of the parawise comments available at Page 4.
3. Now coming to the point of limitation we find that the appellant felt aggrieved by an order, dated 1‑10‑1996, impugned under this appeal (Annexure‑A Page 9) where under he was dismissed/terminated on the charge of "misconduct". Against this order the appellant submitted a departmental appeal on 14‑10‑1996 which remained unresponded and thereafter, he filed a petition in the Labour Court, Islamabad, on 31‑10‑1996 which was ultimately dismissed on point of jurisdiction on 13‑5‑1998 being incompetent and after that he filed the present service appeal before this Tribunal on 3‑6‑1998. No doubt it is well within time from the date of dismissal order, dated 13‑5‑1998 on the point of jurisdiction by the Labour Court due to insertion of section 2‑A, in the Service Tribunals Act, 1973, vide which all the employees of corporations, autonomous bodies etc. ipso facto became civil servants by operation of law which had taken effect from the 10th June, 1997, and, according to law, he should not have waited for declaration of formal abatement order, dated 13‑5‑1998. The matter had ipso facto become time‑barred by operation of law as has been held by the Honourable Supreme Court of Pakistan in the judgment reported in PLD 1976 SC 195 and according to which an aggrieved civil servant should not wait for the abatement order. In view of this legal situation, it was the duty of the appellant to have sought legal remedy from this Tribunal instead of waiting for a formal declaration/abatement order by an incompetent forum and he thereby wasted much valuable and precious time. Limitation when once starts to run cannot be stopped in any way. We have also gone through the application for condonation of delay but reasons mentioned therein are devoid of substance and law and hence not worth consideration.
4. The learned counsel for the appellant placed reliance on the case reported as 1995 PLC (C.S.) Lah. 419 regarding condemned unheard but this authority was not produced whereas the learned counsel for the respondents has relied on the judgment reported as 1976 PLC (CST) 72 (Administrative Tribunal Punjab) wherein it has been held that:--
"each day of delay beyond limitation period must be explained with sufficient reasons delay of 16 days not explained condonation prayer rejected."
5. Pursuant to the facts available on the file and as briefly referred to above, the appellant was terminated/dismissed from service during the probationary period, therefore, he was not entitled for issuance of any notice to hi‑n before his dismissal/termination and as such the principles of natural justice do not appear to have been infringed. Moreover, on the factual side it is crystal clear that the appellant did involve himself in misconduct by inducing an incumbent of the respondent to accept Rs.2,000 from him in return of supplying him Contractors Registration Forms‑‑without which a contractor could not participate in execution of certain contracts etc. and the evidence recorded to this effect in the concerned Court does not favour the appellant. Measured from any angle the appellant cannot be blessed with the remedy sought for.
6. For the above stated reasons, we do not find any legal force in this appeal which fails and is hereby dismissed with no order as to costs. All the parties be informed accordingly.
H.B.T./285/ST/F Appeal dismissed.