KHIZAR HAYAT Versus PAKISTAN RAILWAYS, KARACHI

DECISION

This appeal calls in question the order of the Labour Court No. 5, Karachi dismissing the petition filed by the petitioner under section 25‑A, I.R.O.

2. It is alleged that the appellant was working with the Railway Department as a pointsman since 12‑3‑1960. In January 1979, while posted at Malir Colony Railway Station, he became ill, on account of blood pressure and nervous debility. He took some treatment from the Railway Hospital at the cantonment for a while and, finding no improvement proceeded to his native place in the Rawalpindi District. His illness however continued till November, 1986.

3. The case of the petitioner was that he remained sending applications for extension of leave, but never received any reply from the authorities. When he eventually returned to Karachi to resume duty, the respondents, without assigning any reason, or affording him any opportunity to be heard, removed him from service, by their order dated 31‑12‑1988. According to this order, the removal was to take effect from 13‑1‑1979, as under Rule F.R. 18, a Railway employee, in case of continuous absence from duty for a period of 5 years, altogether cases to be in Government employ. .

F.R. 18 reads as under:‑

"The Governor‑General in view of the special circumstances of the case shall otherwise determine, after 5 years continuous absence from duty, elsewhere than on foreign service in Pakistan whether with or without leave, a railway servant ceases to be in Government employee."

4. The petitioner alleges to have preferred an appeal against this order, before the General Manager of the Railway the same day. It came to be rejected on 9‑9‑1989 and the said order was communicated to him on 29‑1‑1990. It was thereafter that the petition under section 25‑A, I.R.O., came to be presented before the Labour Court on 8‑7‑1990.

5. The petition was accompanied by an application under section 5 of the Limitation Act.

6. The respondents challenged the maintainability of the petition, due to the bar of limitation, and also because of the non‑fulfilment of the required conditions stipulated under section 25‑A, I.R.O. It was urged that even if the appeal to the General Manager could be treated as a grievance notice, even then the presentation of the petition was much‑ beyond the time, as given under section 25(4), I.R.O. They also filed a separate application under Order 7, Rule 11, C.P.C. for the rejection of the petition.

7. On the basis of the evidence led in the case, the learned Presiding officer found that the petition was time‑barred, and otherwise too, was devoid of any merit. He therefore dismissed the petition.

8. There is no gainsaying the fact that the petition had been filed much beyond time and there is no sufficient cause or good faith even remotely A, discernible. Mr. MA. Hassan, learned counsel for the appellant, however, referred me to Malik Khawaja Muhammad v. Marduman Behar Kahal reported in 1987 SCMR 1543, wherein it was held that where a decree was passed in utter contravention of the mandatory provisions of law, such an order was a nullity in law, against which no limitation could be run.

9. Mr. Hasan termed the order of dismissal, as coram non judice. Wharton's Law Lexican defines coram non judice: thus: "(In presence of a person not a judge) when a suit is brought and determined in a Court which has no jurisdiction in the‑matter, then it is said to be coram non judice and the judgment is void". He did not explain who had clutched a jurisdiction, which the law did not vest in him.

10. It is not necessary, in the circumstances of the case to examine the proposition in minutiae. He pointed out that F.R. 18 stood deleted vide O.M. No. 1333‑R/86 of the Finance Division dated 16‑12‑1986. He also referred to me to the decision an Divisional Superintendent Pak Railways, Karachi Division v. Muhammad Asad Khan 1991 PLC 676 and Pakistan Railways v. Sindh Labour Appellate Tribunal and others 1991 PLC 771 and I quite agree that the order of automatic removal of the appellant on the ground of continuous absence of 5 years in simply indefensible. However, .it was a mistaken view of the law held by the Department and should have been assailed in conformity with the provisions of section 25‑A, I.R.O. The rules have been clearly laid down and these have to be dutifully adhered to, unless for some good reason, which can pass muster in a Court of Law. If one fails to pass this test, the blame will be at his own door alone.

11. It is not necessary under the circumstances to show a total dearth of material, that he was really ill for about 7 years or at all, or that he was in touch with the authorities.

12. In the light of view, I have taken there is no merit in the appeal. I will therefore uphold the impugned order and dismiss the appeal.

H.B.T./2072/Lb.S Appeal dismissed.