CHAIRMAN, RAILWAY BOARD Versus MUHAMMAD ASLAM NAZ

This is an appeal directed against the decision dated 19‑8‑1986 recorded by learned Presiding Officer, Punjab Labour Court No. 2, Lahore whereby the reversion order of the respondent from the post of Number‑Taker to the post of T.L. Muawin was set aside and he was directed to be posted again as Number Taker.

2. The facts of the case are that the respondent was employed as T.L. Muawin on 30‑3‑1973. He was made to officiate as Number‑Taker with effect from 30‑5‑1978 vide order copy of which is Ex. P‑I. On 7‑7‑1980 he was reverted to the post of T.L. Muawin vide order, copy of which is Ex. P‑2 and another person was posted as Number‑Taker in his place. The respondent firstly brought a civil suit which was dismissed vide order copy of which is Ex.P‑4 for want of jurisdiction. The respondent, thereafter,, sent grievance notice and then brought grievance petition under section 25‑A of Industrial Relations Ordinance, 1969.

3. It has been argued by the learned counsel for the appellant that since the respondent despite the objection with regard to jurisdiction continued with his suit, he is not entitled to the condonation of delay and the learned lower Court wrongly held that the grievance notice and the grievance petition were within time. In support of his arguments the learned counsel has cited 1986 P L C 922 but the same is not helpful. The observation made in the ruling is that what is not done with due care and caution cannot be considered to have been done in good faith. It has been further observed that the explanation offered by an employee that the notification with regard to jurisdiction of respective Courts was not available and, therefore, the petition was kept pending in the wrong Court is not sufficient for the condonation of delay.. In the case from which the ruling emerged the party had continued with the case in. the wrong Court in spite of the objection having been ‑raised. 1n the present case 'in order to support the plea that the respondent had continued with the suit in spite of the objection raised, the copy of the written statement filed in answer to the suit was not brought on the record. The respondent has with him the copy of the written statement delivered to him in the suit brought by him and its perusal shows that no objection with regard to the jurisdiction was taken therein. After considerable time such a plea may have been raised. Even in the written statement filed in answer to the grievance petition no clear cut objection was raised that in the suit objection with regard to jurisdiction was raised but in spite of it the respondent continued with the suit. The objection is that the petition is time‑barred. No reason is given why it is time barred. The respondent, therefore, had no knowledge on what grounds his petition was being attacked as beyond time. If clear cut objection had been taken, the respondent may have brought on the record the copy of the written statement filed in the suit and application, if any, given to the Civil Court at a later stage with regard to the lack of jurisdiction of the Court. It, therefore, cannot be said that in spite of the objection with regard to the jurisdiction, the respondent had contumaciously continued with his suit. After the suit was dismissed for want of jurisdiction, the respondent without challenging the order in appeal directly sent grievance notice and brought grievance petition. Section 14 of the Limitation Act read with section 29 therefore applies and the learned lower Court rightly ignored the period spent in the civil Court.

4. On merits the learned counsel for the appellant has argued that the post of Number‑Taker does not fall in the channel of promotion to the post of 1.L.' Muawin, therefore, the reposting of the respondent to the post of T.L. Muawm does not amount to revertion. He has also argued that the respondent was made to work as Number‑Taker in officiating capacity temproarily, therefore, he had no right to retain the post nor he could claim promotion. No doubt, since the post does not fall within the channel of promotion, the respondent could not claim to be promoted but unless selection was held and some one duly selected was posted, the respondent could not be sent back to his original post. The learned counsel for the appellant has failed to show that any selection was held and that the person who was appointed as Number‑Taker in place of the respondent had been duly selected. For holding selection applications are to be invited. If now this is done, the respondent would have a chance to apply for the same and to compete with other candidates.

5. As a result, the appeal is dismissed with the observation that if after inviting applications for the post of Number Taker selection is held and some one else is selected and not the respondent, only then he can be reverted to the post) of T.L. Muawin.

A.E./275/Lb. P.

Orders accordingly.