EXECUTIVE ENGINEER, LCC (W), FAISALABAD Versus MUHAMMAD ARSHAD

This is an appeal challenging the decision dated 19‑9‑1986 recorded by the learned Presiding Officer, Punjab Labour Court No. 4, Faisalabad, whereby the respondent was directed to be reinstated in service with effect from 31‑12‑1981 with fifty per cent. back benefits.

2. The respondent was a Baildar. He was proceeded against for remaining absent from 1‑1‑1982 to 29‑10‑1982. He was charge‑sheeted but without holding any inquiry he was dismissed from service.

3. It has been argued that the grievance petition was time‑barred, inasmuch as the respondent was sent a letter of dismissal from service in the first week of August, 1982 but the grievance notice was served on 14‑11‑1982. It has also been argued that the previous grievance petition was withdrawn with permission to bring fresh one and the subsequent grievance petition was lodged on 29‑6‑1985.

4. The order of removal from service is Exh. P.7.It is alleged to have been verbally announced to the respondent but his presence is not recorded on Exh.R.7. This order is alleged to have been sent by registered post to the respondent. The envelope is Exh. R‑15 which contains a copy of this order. On the envelope the words written are . The note does not bear the signatures of the postman. The postman was examined as RW. 5 who deposed that the report was in his handwriting but he stated that the respondent was not present at his residence and the inmates said that it was not known when he would be back, therefore, he kept the letter with him for five or six days and then sent it back to Faisalabad with the report of refusal. It is manifest from the statement of RW. 5 that the respondent was not contacted nor he refused to receive the letter, so the service of the registered letter containing the dismissal order does not stand established. The previous petition, therefore, was not time‑barred. As stated by the respondent, the previous petition was withdrawn on 27‑6‑1985. The respondent did not explain the delay from 27‑6‑1985, when the previous petition was withdrawn, to 29‑6‑1985 when the present one was lodged. The learned lower Court has condoned the delay on the ground that the very order of dismissal was a nullity and no question of limitation arose. The reasoning given by the learned lower Court is not convincing and acceptable. An order, which is a nullity can be ignored till it is not made use of. As soon as such an order is given effect to, it is necessary for the person against whom it is passed to challenge the same. So, in such cases period of limitation starts from the date on which such an illegal order is used. Since the respondent was not given duty pursuant to the order of removal from service, it had become incumbent upon the respondent to challenge the said order within limitation. So far as the first petition is concerned, as observed above, it was not time‑barred, inasmuch as the service of the order of dismissal from service was not established. So far as the second grievance petition is concerned, since the previous one was withdrawn on account of the defect in the presentation, section 14 of the Limitation Act applies and the total period spent in the learned lower Court from the date of the institution of the previous grievance petition to the date it was withdrawn is to be excluded. Excluding the said period, the second petition was not time‑barred.

5. The order of reinstatement is justified, inasmuch as R.W.1 admitted in cross‑examination that no inquiry was held against the respondent and only charge‑sheet was served upon him. The respondent brought on the record of the learned lower Court the copies of the applications of leave and medical certificates alleged to have been sent by him to the appellant. If an inquiry had been held, he may have proved the sending of the leave applications and the medical certificates. He was, therefore, condemned unheard and in these circumstances the learned lower Court was justified in setting aside the order of dismissal and directing the reinstatement of the respondent in service.

6. The respondent has been allowed fifty per cent back benefits by the learned lower Court and he has not brought any cross‑objections to claim full back benefits.

7. As a result of what has been observed above, the appeal fails and is dismissed.

A.E./246/Lb.P

Appeal dismissed.