' This application has been made by Ehsanul Haq, Bill Supervisor, against the Managing Director, Multan Electric Supply Company, Multan, under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952, challenging his retirement order dated 6th January, 1980 passed by the respondent. The petitioner has alleged that he was suspended on 16th November, 1978 followed by a charge-sheet for being non-vigilant and inefficient and resulting in his punishment of withholding of the increment for the year 1978-79 by an order dated 5th December, 1978. The petitioner against the said order filed a petition before this Commission but it was dismissed on 16th January, 1980. During the pendency of these proceedings before the learned Chairman of the Commission another order terminating the services of the petitioner was passed on 6th January, 1980. An extract from the termination order is rear Aced below :- "In view of the directions contained in Letter No, P-II.20 (42)/79, dated 2nd January, 1980 from Deputy Secretary Ministry of Water and Power, Government of Pakistan, Islamabad, you have completed over 25 years of service and your performance is not satisfactory. Therefore, you are hereby given one month's notice with effect from 7th January, 1980 which will expire on 5th February, 1980, in accordance with the terms of contract of employment and is in consonance with the prevailing law. This notice of termination is hereby served upon you in exercise of the powers conferred upon me under Articles 6 and 8 of the Economic Reforms Order of 1972."
2. In their written statement, the respondent-Company amongst others raised the following objection :- The respondent-Company is a taken over industry and is being regulated by the Federal Government under the Economic Reforms Order, 1972 and as the petitioner was removed from service under its article 6, the petition is not maintainable under Article 8 of the said Order of 1972.
3. Explaining the circumstances of terminating the services of the petitioner it was submitted that the services of the petitioner were terminated in view of a letter No, P-II-20 (42)/79, dated 2nd January, 1980 from the Deputy Secretary Ministry of Water and Power, Islamabad as he has completed more than 25 years service. The Additional Secretary and Managing Director, MESCO was also Member of the Committee constituted by the Federal Government regarding those officers who were getting national pay scale No, 16 and above.
4. A perusal of the termination letter reveals the following reasons for termination :-
(i) Services were terminated under the orders contained in the letter of Deputy Secretary Water and Power.
(ii) because the petitioner had completed 25 years of service ;
(iii) service performance was not found satisfactory ;
(iv) services were terminated in accordance with terms of contract of employment ;
(v) Services were terminated under Article 6 of the Economic Reforms Order, 1972.
4. Before proceeding on merits of the case I woUld like to deal with the legal objections raised by the respondent.
5. There is a glaring contradiction in the termination letter. On the one hand it has been stated that his service have been terminated under the directions from the Deputy Secretary, Ministry of Water and Power Government of Pakistan, Islamabad while on the other, it has been stated that the services of the petitioner have been terminated under Articles 6 and 8 of the Economic Reforms Orders, 1972. The respondents have produced the letter No, P-II-20 (42)/79, dated 2nd January, 1980 of Deputy Secretary Ministry of Water and Power on the basis of which the services of the petitioner were terminated.
6. It is now to be seen under what circumstances the letter No, P-II20(42)/79, dated 2nd January, 1980 was written by Deputy Secretary, Ministry of Water and Power to the Managing Director. The said letter along-with its enclosures reveals that a three-member committee was set up under the directive of the CMLA/President dated 2nd August, 1977 to suitably prune the staff employed in Ministries/Divisions/Corporations as a measure of economy. The Additional Secretary, Ministry of Water and Power was the Chairman while the Financial Adviser and Managing Director, MESCO were the members of the committee. The decisions taken by the Committee as given in para. 4 of the report of the committee reveals that the Committee recommended that the services of the petitioner and one other person may be dispensed with as they had completed 25 years of service and also because their performance according to the Managing Director was not satisfactory. It was also observed by the Committee that MESCO does not have any service rules at present providing for review of cases of those who have put in 25 years of service or those who have completed 55 years of age. It was further observed by the Committee that the retrenchment can be brought about under the general conditions of recruitment which provide for removal from service after one month's notice. These recommendations were submitted by the Committee to the Minister, Water and Power.
7. It is thus very clear from the recommendation of the Committee that the petitioner's services were terminated because (i) he completed twenty-five years of service and (ii) his performance was not found satisfactory. It is also very crystal clear from the report that the Committee was under the impression that the petitioner could be removed from service by giving one month's notice. In this regard it may be stated that the petitioner has produced a specimen of terms and conditions of employment which shows that an appointee is liable for termination at the age of 60 years. Therefore this fact was not taken into account by the Committee, Perhaps it was not in the knowledge of the Managing Director of the Company who was also a member of the Review Committee. This fact that an employee in MESCO cannot be retired before 60 years of age was therefore not brought to the notice of the Minister, Water and Power. The other ground on which the services of the petitioner was recommended for termination was that his performance was not satisfactory. No details have been given for arriving at this conclusion in the report of the Committee. In this regard it may be stated that on 16th January, 1978 the petitioner was suspended and given a charge-sheet with allegations that he was not vigilant and was also inefficient. An enquiry was held with the result that his increments for the years 1978-79 were withheld. It is therefore clear from this order that the petitioner was already punished for being non-vigilant and being inefficient. The order of withholding the increments dated 5th December, 1978 is reproduced below :- "You were heard in person by the undersigned and it has been established that you are guilty of carelessness and disregard of duty causing inconvenience to the consumers as has been admitted by you in para. 5 of your reply to the above-referred charge-sheet, which amounts to serious misconduct. You are however re-instated with effect from 5th December, 1978 (F. N.) to your post of Bills Supervisor without benefits and your increment for the year 1978-79 is hereby stopped on account of above charges without future effect."
8. It could be thus seen that the Management' of MESCO found that the punishment of withholding the increments would meet the ends of justice and the petitioner was not dismissed from service.
The punishment of removal from service now without giving him another chance to defend himself would be against the principles of fairplay and natural justice. It is also very obvious that on the above charges of carelessness and inefficiency, the services of the petitioner could not have been dismissed as the said charge did not fall under the list of misconduct as given in Standing Order 15 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. As such the removal of the petitioner on the ground that his performance was not satisfactory is against the provisions of West Pakistan Standing Orders Ordinance, 1968. Moreover these facts were not brought to the notice of the Government by the Committee. It was reported by the Committee perhaps under some misunderstanding that the retrenchment can be brought about under the general conditions of recruitment which provide for removal from service after one month's notice. It may be stated that under Standing Order 12 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 it has been laid down that for terminating employment of permanent workmen for any reason other than misconduct one month's notice shall be given either by the employer or the workman. Therefore his services cannot be terminated unless it is proved that he was found guilty of misconduct. It may further be stated that certain acts and omissions have been enumerated under the Standing Order 15 of the said Ordinance. Under clause (d) of sub-para. (2) of para. (I) of Standing Order 15, inefficient, dilatory, careless or wasteful working have been listed as acts and omission for which the punishment of dismissal from service is not the prescribed penalty. Inefficient, careless working has not been listed as a misconduct under para (3) of Standing Order 15 of the said Ordinance. Dismissal of service can only be made if a worker has committed misconduct. Therefore under the provisions contained in Standing Orders 12 and 15 of the West Pakistan Standing Orders Ordinance, 1968 read with the terms of the contract of employment, the services of the petitioner could not be dispensed with by merely giving one month's notice and this fact was not brought to the notice of the Minister for Water and Power.
9. Moreover, the Committee was appointed under the orders of the CMLA/President and on the recommendations of the Committee, the Minister for Water and Power has issued orders to take action in the light of the recommendations of the Committee. The services of the petitioner have therefore been terminated under the orders of the Government and not under the Economic Reforms Order, 1972. Mere mention that the services were terminated under the said Order of 1972, would not attract the provisions of the Economic Reforms Order, 1972.
10. It has also been contended on behalf of the respondent that the petitioner has not served any grievance notice (1) under section 25-A of the I. R.
0., 1969. In this regard a decision reported in 1976 SCMR 74 has also been cited. The ruling is distinguishable. The present petition' has been filed under section 6 of the Pakistan Essential Services (Maintenance) Act, 1972 and not under the Industrial Relations Ordinance, 1969 and the provisions of the latter are overridden under section 7-A on the Act.
11. The respondents have also cited PLD 1980 Lah. 82 in support of their contention that as the services of the petitioner had been terminated under Article 6 of the Economic Reforms Order, the petition is not maintainable. In the said reported case it was observed by the Division Bench of the Lahore High Court as under may be noted that in the present case the services had been terminated because they are no longer required. No stigma of any sort whatsoever has been attached. Neither Mohammad Nazir has been dismissed or removed from service, the principle of audi alteram part em would not be attracted to the facts of this case."
12. In the present petition before me the stigma has been attached on the petitioner and it has been stated in the termination letter that his performance was below satisfactory. Moreover in the said judgment of the Lahore High Court it was observed that the relationship of master and servant was found to exist and the Master could have terminated his services without any notice or without assigning any reason. In the present case before me the relationship is governed by a statute. It is also governed by the terms of contract which lay down that the retirement age is sixty years. The decision of the Lahore High Court is therefore not applicable to the facts of the present proceedings and therefore does no help the respondents.
13. The next objection of the respondent is that the petitioner was employed mainly in administrative and supervisory capacity as bill supervisor and was drawing basic salary of Rs, 800 and therefore he does not fall within the definition of worker and as the petition is not maintainable, he cannot invoke the jurisdiction of the Commission. In this regard it may be stated that while deciding the petition under Pakistan Essential Services (Maintenance) Act, 1952, the definition of worker as given in the I. R.
0., 1969 becomes irrelevant. The said act is applicable to all the employees of an establishment to which the provisions of the Act apply.
14. It is next contended that the petition is not maintainable as no forum has been specified for the adjudication of such matters and therefore the Commission is not vested with any jurisdiction to entertain the matter of any individual grievance. This proposition is no more tenable as the learned Chairman in his capacity as Specified Authority under the Act has created a forum for adjudicating individual grievances by issuing regulations published.In the official gazette on 27th January, 1979.
15. I therefore direct the respondent to reinstate the petitioner in service with the benefit of continuity of service and his period of absence after the termination of his service would be treated as leave without pay.