This is an application under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 for a direction that the termination of services of the petitioner by the respondent was invalid and for an order for his re -instatement in service with back benefits.
2. Petitioner Bashir Ahmed son of Muhammad Sharif, was employed as a fitter in the Electrical and Mechanical Workshop in 1954 and was later on promoted as Progress Incharge in 1959. The post was abolished in the year 1963 and he was reverted as fitter. Being aggrieved thereby, the petitioner approached the National Industrial Relations Commission, which accepted his petition and directed the WAPDA by order dated 30th June, 1976 to give the petitioner the job of Progress Incharge or equivalent post along with the wages of the said post. As the WAPDA Authorities failed to implement the said order of the Commission, the petitioner filed a Writ Petition No, 802/S of 1979 in the Lahore High Court and the High Court directed the petitioner to approach the Commission again for implementation of the Commission's order. The petitioner accordingly moved the Commission but he was directed to file a complaint before the District Magistrate for taking cognizance of the offence for failure to implement the order of the Commission dated 30th June, 1976, in which Sardar Noor Alam, Chief Engineer, Muhammad Akram, Member (Power) and Abdul Bari, Works Manager, Electrical and Mechanical Workshop were summoned. It is contended by the petitioner that as a result of this litigation the WAPDA Authorities got annoyed with him and started victimization and were looking for an opportunity to get rid of the petitioner.
3. On 16th August, 1977 a charge-sheet was served on petitioner charging him for fraudulently drawing Conveyance Allowance since 1971. The petitioner submitted reply to the charge that in 1971, he was not serving as Fitter and that therefore, the charge was malicious. Accordingly, the charge was dropped, but on 20th May, 1979, the petitioner was given similar charge-sheet dated 9th May, 1979 alleging that he had been drawing the Conveyance Allowance during the years 1972 to 1976.
The petitioner again submitted reply alleging that the second charge sheet could not be issued on the same set of allegations and charges and that it was nothing but an attempt to victimise the petitioner, due to personal malice, besides the charge-sheet being time-barred. In spite of the said reply the Respondent proceeded to make enquiries and Director Complaints and Investigations, WAPDA, Lahore appointed Enquiry Committee to investigate into the allegations against the petitioner. It appears that the Committee recorded the evidence of several witnesses on the spot such as owners of the houses in question, Shopkeepers and other residents of the locality to verify the place where the petitioner had actually resided. The statement of the petitioner was also recorded. On the basis of the said evidence, the Committee submitted its enquiry report finding the petitioner guilty of drawing bogus Conveyance Allowance by showing bogus receipts, and recommended imposition of major penalty. Accordingly, the Respondent Superintending Engineer.
IV of Lahore Circle, Lahore in his capacity as competent authority, issued a second show-cause notice dated 30th June, 1980 informing the petitioner that it was proposed to impose major penalty. The petitioner submitted a reply in which he pointed out that the evidence recorded against him was ex parte and that he had not been given an opportunity to defend himself. That moreover, the pertinent witnesses were not examined. This reply was considered irrelevant by the Respondent and found unsatisfactory. Accordingly, the services of the petitioner were terminated by office order No, 170 dated 7th September, 1980.
4. I have heard Mr. Ejaz Anwar Advocate for the petitioner and Mr. S. M. Mohsin Advocate for the Respondent. It is not disputed that the Pakistan Essential Services (Maintenance) Act, 1952 has been made applicable to all classes of employment in connection with generation transmission, distribution or supply of electricity in which category, falls the employment of the petitioner. It was however, contended by , Mr. Mohsin that applicant was a Civil Servant in view of the amendment " of Section 17 (1-B) of the WAPDA Act, 1958 as amended by Ordinance XVI of 1975 and that Commission had no jurisdiction and in this connection referred to Muhammad Saleem Khan and others v. WAPDA and others in which Junior Revenue Officers employed by WAPDA were held to be Civil servants. This case, however, is distinguishable as it did not relate to the case of employees of WAPDA who were workers as defined in the Factories Act, 1934 and Workmen's Compensation Act, 1923. To the same effect, the learned counsel cited NLR 1979 Labour (Lah.) 123 and PLD 1979 Kar.
95. The point was considered at great length in Muhammad Fayyaz v. WAPDA in which it was held that although a worker holds a civil post in the WAPDA, he is not a Civil servant for the purposes of Service Tribunals Act, 1973, because the definition of Civil Servant in section 2 (a) thereof, had the same meaning as defined in section 2 (1) (b) of the Civil Servants Act, 1973, which under clause (iii) excludes a worker or workman as defined under the Factories Act, 1934 or Workmen's Compensation Act, 1923. There is no dispute that the petitioner is a workmen as defined in the Factories Act. The point was also considered by Punjab Labour Court and Labour Appellate Tribunal in Ch. Inayat All and others v. WAPDA and PLJ 1980 Tr. C. (Labour) 57 respectively in which same view was held. The submission of Mr. Mohsin therefore, has no force.
5. Mr. Mohsin next submitted that WAPDA was an industrial establishment carried on "by or under the authority of the Federal Government" and hence exempted from the operation of the Standing Orders of the West Pakistan Industrial and Commercial Employment4) (Standing Orders)
Ordinance 1968, by virtue of the first proviso to subsection (4) of section 1 thereof. This argument is clearly misconceived because WAPDA is an independent Statutory authority which carries on its own business and on its own account in accordance with the provisions of the WAPDA Act, 1958. Its business is not being carried on by the Federal Government nor under its authority, a similar1 2 3 argument raised by counsel on behalf of WAPDA was rejected by the Punjab Labour Appellate Court in WAPDA v. Ch. Inayat All .
6. The Standing Order 15 (4) of the Standing Orders Ordinance, 1968 requires the holding of an enquiry in the presence of the workman proceeded against. As rightly pointed out by Mr. Ejaz Anwar for the petitioner, the Enquiry Committee examined several witnesses behind the back of the petitioner and further that the petitioner was given no opportunity to defend himself or to lead evidence in support of his defence. Although the Committee examined the petitioner, the enquiry proceeding was practically ex parte, behind his back. The finding of guilty reached by the Committee against the petitioner was clearly unfair and against the principles of natural justice.
However Mr. Mohsin relied on rule 5 MO of the WAPDA Employees (Efficiency and Discipline) Rules.
1978, which laid down the procedure for bolding Enquiry. Under this rule, the Authority can impose a major penalty against a person proceeded against without giving him any opportunity to defend himself beyond considering his written reply to the charge. But in view of the mandatory provision of Standing Order 15 (4), reliance cannot be placed on the same.
7. Accordingly, I hold that the finding that petitioner was guilty was vitiated as- he had not been given any opportunity to defend himself and could not in law amount to reasonable excuse within the meaning of section 3 (1) of the Pakistan Essential Services (Maintenance) Act, 1952.
8. I also hold that the repeated charge-sheet issued on 9th May, 1979, was time-barred under Standing Order 15 (4):
9. For the foregoing reasons, I would allow this petition and set aside the order terminating the services of the petitioner. The Respondent is directed to reinstate the petitioner in service in the post which he held immediately before his removal, with back benefits. PLD 1976 Lab. 492 1980 PLC 664 1980 PLC 480 PLJ 1980 Tr. C. (Lab.) 57