Friday, 4 March 2016

Time Spent in Litigation at wrong forum is exempted

PL J 1985 Tr. C. (Services) 198 [Federal Service Tribunal, Islamabad]
Before JUSTICE SHAH ABOUR RASHID, CHAIRMAN S. A. SAYOOD, MEMBER
KHALIL AK.HTAR—Appellant
versus
CHAIRMAN, WAPDA, Lahore and 3 Others—Respondents Appeal No. 749 (L) of 1982, decided on 21-8-1985.
(i) Service Tribunals Act, 1973 (LXX of 1973)-
------ S 4 read with Limitation Act. 1908 (IX of 1908)—Ss. 3, 5 & 14—Service Tribunal—Appeal to—Delay in filing of—Condonation of— Time spent in litigating in wrong forum—Exclusion of—Appellant spending about four years in litigating in Labour Courts and High Court-Held : Tribunal to be competent to condone such time spent in litigating in wrong forums—No explanation, however, given for not filing appeal before Tribunal for about two months more— Held : Appeal to be barred by time. [P. 201]C
(ii) Industrial & Commercial Employment (Standing Ord ers)
Ordinance, 1*68 (W.P. Ord : VI of 1 68)—
——S 1 Proviso I read with Wnter and Power Development Authority Act, 1958 (W.P. Act XXXI of )9a8)—S. 17 and WAPuA Employees (Efficiency & Discipline) Rules, 1978 -R. 8-WAPDA—Employment of officers and servants of—Standing Orders Ordinance—Applica­bility of-Establishment of WA('DA admittedly carried on under authority of Federal Government—Htld : Workmen (employed in WAPDA) like ail other employees of WAPDA being governed by Efficiency & Discipline Rules (made by WAPDA). Standing Orders Ordinance not to be applicable (so far as efficiency and discipline of such workmen be concerned). [P.
4.       To challenge the orders of the Labour Appellate Tribunal, the reipondents went to High Court by way of writ petition.   The said Court accepted the petition by order dated 9-10-82, on the ground the appellaat being a civil servant, neither the Labour Court nor the Labour Appellate Tribunal had jurisdiction to hear the appeals.
5.                As a result of the decision of the High Court, the appellant was again removed from service by order dated i8-l!-82.    In the appeal before us filed on 18-iz-s2, orders of termination of services of the appellant passed on 23-1 78, 1-1 79 and 18 U-82 have been challenged.
6.       It was argued that the appellant being a workman was governed by 1968 Ordinance, and as such action could not be taken against him except on the ground and in accordance with the procedure la d down therein.   Two decisions of this Tribunal   are to the effect that no doubt the forum for adjudication on the grievance of workman employee of WAPDA is the Service Tribunal, nevertheless, action can be taken only if such misconduct, as defined in the 1963 Ordinance, is established  and  that too in accordance with the procedure laid down in the said Ordinance. Since we entertained some doubt about the correctness of these decision, we requested  Mr.   S   Jamshed  AH Advocate to act as amicus curias.   We have heard the learned counsel for the appellant,  the learned counsel for respondents and the  amicus ctiriae, all of whom rendered valuable assis­ tance to us.
7.    There can be no two opinions that if the WAPDA Employees (Efficiency and  Discipline)  Rules are applicable in the present case, thenthe appellant having been convicted to undergo imprisonment and suffer lashes by the Summary  Military Court, his services could be terminatedwithout notice or hearing under rule 13 of WAPDA Employees (Efficiency Discipline Rules,  1975 or  under rule 8 of WAPDA Employees (E&D)Rules,    1978,   as   the case may be.    However,  as already stated, the        .- appellant's case is that he being a workman, action could be taken against   ,-~him only if the misconduct as defined in Para 15(3) of the Schedule to the 1968 Ordinance is established, and that too after following the procedure provided for therein The learned counsel for respondents as also the amicus curiae have drawn our attention to the first proviso to section 1 of 1968 Ordinance, which reads as follows :"Provided that nothing in this Ordinance shall apply to industrial and   commercial  establishments   carried   on by or under the         ?fauthority .of the Federaj  or any Provincial Government,  where statutory* rules of service, conduct or discipline are applicable to the workmen employed therein".It canaot be denied that the WAPDA is very much an establishment  which        * s carried on under the authority of the Federal Government and as such the aforesaid proviso is strictly applicable.   This being the case, the  1968 Ordinance,  as far as Efficiency and  Discipline is concerned, shall not be applicable to a workman of WAPDA.   A   workman   like    all   other      ^ employees of the WAPDA is governed by the Efficiency and Discipline .Rules made by the WAPDA, and since under these rules, power to tenai-"nate the services of a convicted  person without notice is available to the competent authority, the orders of termination of service of the appellant passed on different dates are quite valid.scheme, ITO fell in error in re-opening assessment by taking resort to such circular. (Pp 203&204J/4&C
(fi) Income-tax Ordinance, 1979 (XXXI of 1979)-
------- S 59- Self assessment scheme— Circular curtailirg right of assessee—Construction of Held : Circular curtailing right of assessee under self assessment scheme to be interpreted strictly and in such way that interpretation fa curing assessee to be only accepted (in case of two interpretations being possible). [P. 203)5
Mr. Mazhar-ul-Hassan, Advocate for Appellant.
Mr. Muhammad Far id, Departmental Representative by Respondent.
Date of hearing : 16*12-1904.
ORDER
Mr Mazhar-ul-Hassan, Advocate appearing for the appellant have vehemently contended that the ITO had no jurisdiction to re-open the assessment completed u/s«9(l) as Circular No. 32 of 198j dated 7th December, 1980 did not apply in his case. The brief facts giving rise to this appeal are that the appellant an individual earning bis income from tale of artificial jewellery, filed his return for assessment year 1980-81 under self assessment and the same was accepted u/s 59 (1) of the 1. T. Ordinance. However subsequently, the assessment was re-opened in view of Circular No. 32 of 1980 dated 7th December, 1980 The appel­lant again filed bis return showing income at Rs. 20.990/- with total sales of Rs. 2,18,796 O. P. rate of 25.6% and G. P. of Rs. S6.728/-. The ITO however for various reasons given in his assessment order rejected the trading versions and estimated the sales at Rs. 3,/5,000/- and applied O. P. rate of 26%. The appellant felt aggrieved and went up in appeal. The learned A\Cvide his order dated 25th May, 1982 recorded in ITA No. AAC/E/K.E/1983/1980-81 confirmed the order of ITO.
2.    Elaborating his argument Mr. M. H. Advocate submitted that clause 6 of Paragraph B of Circular No. 3/ of 1980 dated 7th December. 1980 dealt with cases of jewellery, goldsmith and bullion dealers and did not cover the case of dealer of artificial  jewellery.   According to learned counsel the appellant was dealer of artificial jewellery and was a retailer. When his attention was invited to  memorandum of appeal and the order of thi learned AAC Mr. M .ul .H...Adv.  submitted that the appellant had filed an affi-Uvit alongwith additional grounds of appeal in which the .question regarding the applicability of circular 32 of 1940 and invalidity of the notice issusd u/s 65 were taken. Ha also extensively argued against the various findings of the assessing officer recorded in his assessment order. However, I do not wish to dilate on them simply for the reason that the appeal may be disposed of merely on the legal grounds urged by the learned counsel for the appellant.
3.    Mr. M...F...the learned Departmental Representative submitted that the word "jewellery" also included artificial jewellery in its meaning. Referring to Vallentine's Law  Dictionary, 3rd Edition,  Mr. M ..F...the learned D. R. argued that the word jewellery included all articles of personal adornment.   As   such   according  to learned DR tmmttatioq (interpretations are   possible only the   one which favours the assestec •should be accepted.
6.   Now turning to the facts of the case it appears that the appellantis admittedly a retailer of artificial jewellery.   It further transpires fromperusal of the record that 99% sales of the appellant were cash and belowRs. 1,000/-,   This fact further lends support to my conclusion that theCircular No. 32 of 1980 was not meant for dealer of artificial jewellery.For the reasons given above 1 am of the view that the ITO fell inerror in re-opening the assessment of the appellant by taking resort to Circular No. 32 of 1980. Sirce the case of the appellant was qualified to be accepted under self assessment scheme I, therefore, allow this appealand by setting aside both the orders of the officers below direct to ITO to accept the return as filed by the appellant. Since the appeal has been disposed of on this legal point 1 refrain from dealing with the other aspectsof the matter discussed in detail by ITO.
The appeal stands disposed of accordingly.(TQM)                                                                             Appeal allowed.

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