WATER AND POWER DEVELOPMENT AUTHORITY, LAHORE and another vs JAVAID AHMED and others
This petition for leave to appeal arises from a judgment of the Federal Service Tribunal which accepted the respondent's appeal, setting aside his termination from service and ordering reinstatement with consequential benefits on the ground of mala fides. The core legal question involved whether the Service Tribunal committed an illegality by failing to explicitly record a finding on the question of limitation raised by the petitioner, and whether the termination of the respondent while retaining his juniors was lawful. The Supreme Court held that the Tribunal, being conscious of the limitation objection, had impliedly rejected it by deciding the matter on merits, and that the termination was indeed mala fide as junior employees appointed on the same day were retained. The Court laid down that an omission to write a formal finding on limitation does not vitiate a judgment where the circumstances show the objection was consciously considered and overruled, and refused to grant leave to appeal as no question of legal or general public importance was raised.
- Whether failure of the Tribunal to explicitly record a finding on limitation vitiates its judgment when the objection was raised and considered?
- Can the termination of an employee during probation be held mala fide when junior employees appointed on the same day are retained in service?
- Does a petition for leave to appeal lie against a factual finding of mala fides where no question of public importance is involved?
ORDER
' SALEEM AKHTAR, J.---The petitioner, Water and Power Development Authority, seeks leave to appeal against the judgment of the Federal Service Tribunal whereby the appeal filed by the respondent was accepted holding that the order passed by the petitioner was mala fide and unlawful. Consequently, the respondent was ordered to be reinstated in service from the date of his termination with consquential benefits.
2. The respondent was employed as Line Superintendent-II by letter dated 5-3-1981 alongwith other candidates. It is alleged that because of shortage of funds retrenchment in the posts of Line Superintendent-II was carried out and the service of the respondent was terminated during probation period by letter dated 24-3-1981. The respondent challenged this order of termination before the Punjab Labour Court where he succeeded and the petitioner's appeal was dismissed.
The petitioner filed writ petition, which was also dismissed. The petitioner then filed petition for leave to appeal which was granted and the appeal was accepted holding that the orders passed by the Punjab Labour Court and the Punjab Labour Appellate Tribunal were without jurisdiction. The respondent, who had contnued in service till then and had been performing his duties, was relieved of his duties. The respondent then approached the Federal Service Tribunal on 21-6-1989 and filed application for condonation of delay. This appeal was accepted by the impugned judgment.
3. The learned counsel for the petitioner contended that the appeal filed by the respondent was barred by limitation and despite the fact that this issue was raised, no finding or decision has been given by the Tribunal. The learned counsel for the respondent contended that the objection was raised and was noted and further that the Tribunal conscious of this objection proceeded to decide the appeal on merits and therefore it had impliedly rejected the objection on question of limitation.
The learned counsel has referred to Muhammad Yousaf v. Member, Board of Revenue (1970 SCM R 170) and Allah Ditta v. Muhammad Ashraf (1989 SCM R 92). The contention raised by the learned counsel for the petitioner cannot be accepted as the facts and circumstances of the case and a reading of the impugned judgment show that the same was passed consciously having the knowledge of the objection of limitation raised by the petitioner. This plea, therefore, in view of the aforestated judgments cannot be sustained. The learned counsel for the respondent also pointed out that the action of the petitioner as held by the Tribunal is mala tide as two persons who were appointed alongwith the respondent on the same post and, were junior to him, have been retained and n not retrenched. The reason for not retaining the respondent given by the petitioner is that there exists an order of the Supreme Court that WAPDA should not retain him in service. Such objection has been held to be mala fide and in conflict with the rules of justice and equity. The judgment of the Supreme Court has held that the orders passed by the Labour Court and the Labour Appellate Tribunal were without jurisdiction as the jurisdiction to decide service matter of WAPDA employees was exclusively with the Federal Service Tribunal. This could not be made a smoke screen for terminating the service of the respondent as in normal circumstances the respondent would have been retained as two junior persons who were appointed the same day in the same category have so far been retained. Considering the facts and circumstances of the case and that no question of legal/general public importance is raised, we refuse to grant leave.
4. C.P. No, 25-L of 1993 is barred by 147 days. No ground for condonation of delay has been made out. This petition is also dismissed.