THE POSTMASTER-GENERAL, NORTHERN PUNJAB AND (AJ&K), RAWALPINDI vs MUHAMMAD BASHIR and 2 others

' SH. RIAZ AHMAD, J.---This appeal through leave of the Court is directed against the judgment and order dated 14-11-1994 delivered by a learned Single Judge of the Lahore High Court whereby writ petition filed by the appellant was dismissed on the question of limitation as well as on merits.

2. The facts in brief , giving rise to the institution of this appeal are that respondent Muhammad Bashir Bhatti, an employee of the Postal Department appeared in the Departmental Promotion Examination and having been declared successful was promoted to the post of Inspector B-9. The respondent kept on working for a number of years against the said post when suddenly he was directed by the Department to reappear in the same Departmental Examination, which he had already taken and had been declared successful. The respondent was also threatened by the Department that in the event of his failure to appear in the said examination, he would be reverted.

3. Aggrieved by the conduct of the Department, the respondent instituted an application under section 25-A of the Industrial Relations Ordinance, 1969 in the Labour Court. The said petition was allowed vide order dated 8-10-1987. Dissatisfied with the decision of the Labour Court, the Department assailed the aforesaid orders by way oftaking an appeal before the Punjab Labour Appellate Tribunal and the appeal also met the same fate and was dismissed vide order dated 9- 5-1988. The Labour Appellate Tribunal had dismissed the appeal as barred by time and furthermore, the Labour Appellate Tribunal also came to the conclusion that no case was made out on merits too. It was also declared that the respondent had qualified the requisite departmental examination for promotion and having been promoted has been working against the said post for the last so many years and as such he could not be compelled to re-take the examination and thus, the threat to revert him was illegal.

4. Still aggrieved by the orders passed by the Labour Appellate Tribunal, the Department then chose to challenge the order of the Labour Court as well as the Labour Appellate Tribunal by way of filing a petition under Article 199 of the Constitution. On 27-9-1993 the petition was dismissed for non-prosecution because none appeared on behalf of the Department. On 16-12-1993 Civil Miscellaneous No, 2125 of 1993 was moved for restoration of the petition and a notice was issued to the respondent, who contested the restoration application. On behalf of the respondent it was urged in the High Court that the application seeking restoration of the writ petition was barred by time and no sufficient cause has been shown for condonation of delay in filing the said application.

The learned Single Judge of the High Court after hearing the parties came to the conclusion that no case for restoration was made out inasmuch as the application was barred by time. The learned Single Judge also took note of the interpolation in the application, which did not correspond with the affidavit filed in support of the application seeking condonation of delay. The petition was dismissed for non-prosecution on 16-12-1993 and according to the appellant he came to know of the dismissal of the application on 14-11-1993, and thus, he filed the application seeking restoration on 16-12-1993. It was thus, held that assuming that the time would run from the date of knowledge, even then the application seeking restoration was barred by time.

5.Having held the application seeking restoration not maintainable being barred by time, the learned Judge in the Lahore High Court still proceeded to examine the merits of the case. The learned Judge came to the conclusion that the direction by the Tribunal to the respondent to reappear in the departmental examination, which he had already taken, was mala fide. The learned Judge also came to the conclusion that the respondent was being harassed unnecessarily and the direction to re-appear in the examination was most unreasonable. The learned Judge also came to the conclusion that the action of the Department was oppressive in nature and the respondent, who is a petty employee in B-9 had been drawn into litigation, which was nothing but a source of torture to him. In the light of this background the learned Judge not only dismissed the petition seeking restoration of the writ petition dismissed for non-prosecution, but also chose to burden the Department with costs to be paid to the respondent. Accordingly, the learned Judge ordered the Department to pay the respondent Rs,30,000 as special costs.

6. Leave to appeal was granted to consider whether the High Court, while deciding the writ petition, could have awarded costs of Rs,30,000 against the appellant. We have heard both sides at length and we are of the view that in a fit case there is no bar to award special costs particularly when the process of litigation is initiated in a mala fide manner and only with a view to oppress and harass the opposite party. In the circumstances of the present case, it is unintelligible as to how the Department was coercing the respondent to take such Departmental Promotion Examination which he had already taken and qualified. Obviously, such a course of action was mala fide, and therefore, special costs could be awarded. Having held so, we are of the view that the costs of Rs,30,000 are excessive and accordingly we reduce it to Rs,15,000. The appellant is directed to pay the costs to the respondent within a period of two months. We do not find any flaw in the order impugned so as to justify interference by this Court. Hence, this appeal is dismissed.