GHULAM DASTGIR UQAILI Versus THATTA CEMENT COMPANY Ltd

ORDER

1. Both the applicants are admittedly permanent employees of the respondent, one is Supervisor (Accounts) and the other Supervisor (Purchase). Both have claimed themselves to be workmen and so are covered by the provisions of Standing Orders Ordinance of 1968. Both these applicants were suspended by letter dated 31‑8‑1985 for indefinite period and such suspension is said to be still continuing. It has been pleaded that no charge‑sheet whatsoever was issued to the applicants and further that no enquiry has ever been conducted against them. Since this suspension order is violative of the provisions of Standing Orders Ordinance and is also actuated by mala fides, they served grievance notices dated 17‑2‑1987 but the same was rejected by letter dated 24/25‑2‑1987. Considering this suspension and the action of the respondent as illegal, un warranted and also mala fide, they have filed the present petitions for .their restoration to duty with consequential benefits.

2. In both the cases the plea of the respondent, as raised in the reply statement succinctly is that both the applicants do not fall within the category of workmen because they were perform'ng supervisory nature of duties and were drawing Rs. 2,500 P.M. Their suspension from 31‑8‑1985 for an indefinite period has however been admitted but at the same time it has been pleaded that the grievance notice issued to the respondent by the applicants were hopelessly time barred. On merits, it has been pleaded that the applicants were issued charge sheets and enquiry was also ordered against them. The charges were duly established and so, in pursuance of the directives of the Ministry of Interior as well as Ministry of Production, the applicants were suspended. Moreover, FIR No.29/82 was also lodged against them. It has finally been pleaded that since the applicants are not workmen and since their grievance notices are time‑barred, the present petitions are not maintainable in law.

3. Both the applicants filed their respective affidavits in evidence but despite ample opportunity provided to the respondent, they were not cross‑examined by the respondent. However, in rebuttal the respondent examined Mr. Mashooq Ahmad Abro, Manager Administration. He has also been cross examined on behalf of the applicants. After evidence, I have heard Mr. Mohd Moosa Leghari, Advocate for the applicants, and Mr. N.A. Talpur, Counsel for the Respondent. I have also examined the material eon record.

4. I would first dispose off the legal objections raised by the respondent in its reply statement. Though these pleas have nowhere been agitated or pressed in the affidavit in evidence and also no arguments have been advanced by Mr. Talpur but in order to avoid any future complications, I would examine these legal objections.

5. The applicants have specifically detailed their duties in their respective affidavits in evidence and if such duties are kept in view, and which have nowhere been disputed on behalf of the respondent, the applicants would certainly fall within the category of workmen. Moreover, in Para 3 of the affidavit filed on behalf of the respondent il has also been stated that the applicants are subject to the Labour Laws of the Country. In the cross‑examination as well it has been stated that the workers of the respondent are proceeded against as per the Labour Laws. In this view of the matter, the applicants are definitely workmen and so they are covered by the provisions of S.O. Ordinance of 1968.

6. As to the limitation, suffice it to say that the suspension, which has been impugned herein, is a continuing cause of action and so long such suspension continues, the affected workmen shall have cause of action. Reliance can safely be placed on 1983 PLC 596 and 808; 1987 PLC 511 & 843 and also 1981 PLC 219. In regard to the continuing cause of action our own Tribunal has observed that the A suspension is a continuing wrong and every day during continuity of suspension gives a fresh cause of action to aggrieved party. In view of this case law the grievance notices issued by the applicants cannot be pleaded as time‑barred.

7. Reverting to the merits of these cases I have to state that admittedly the incident was said to have been committed on 20.12‑1981 and the charge‑sheet if any was, issued to these applicants on 21‑10‑1984, i.e., after nearly 3 years of the alleged commission of misconduct. It has also come in evidence that this charge sheet was issued to these applicants only under the directions of Ministry of Interior. It has also been admitted by the solitary witness of the respondent that much before the suspension and the charge‑sheet a departmental enquiry was conducted but no direct evidence was available against these applicants. In this view of the matter, firstly the charge‑sheet is hopelessly time‑barred inasmuch as it was issued after 3 years of the alleged misconduct; secondly this charge‑sheet having not been issued by a competent authority and by applying its own independent mind is of no legal consequence; and thirdly the suspension based onno charge sheet and that too for an indefinite period having been ordered after more than 3 years of the incident would also be patently illegal as has been held ,by D.B. of Lahore High Court as reported in 1981 PLC 219 and as by our own Tribunal in 1957 PLC 843.

8. The submission of Mr. Talpur that the applicants who are public servants and are also involved in a misappropriation case cannot be covered by the provisions of Labour Laws alone and so their suspension order would be perferly justified, is wholly misconceived. His further submission that the applicants being. Pakistanis are to be covered by the General Law of Pakistan besides Labour Laws is fantastic and ridiculous. When a law is framed by the Legislature to regulate the service or conduct of a particular person, he is to be governed by the same and not by the whims and caprices of some Officers. In the instant cases admittedly the applicants are not only workmen but are also covered by the provisions of S.O. Ordinance and so if any action is found contrary to such law, the same is to be declared as illegal and without jurisdiction. 'If the applicants are involved in a criminal case, such proceedings against them would not take them out of the purview of the Labour Laws. The present action of the respondent against these applicants is not only patently illegal but also appears to be mala fide particularly when as admitted by the solitary witness of the respondent, the Departmental Enquiry Committee did not find anything against these applicants.

9. In view 'of the above, the impugned orders of suspension are set aside and declared as illegal and without jurisdiction and, as a result thereof, the applicants are directed to be restored and reinstated to their original status and position immediately with all consequential benefits.

10. A.E/1126/Lb. S Applications allowed.