This is a petition under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 (hereinafter called the 'Act') for regulating conditions of service of the petitioner by declaring that his removal from service is illegal and for issue of directions for his reinstatement with consequential benefits.
2. Petitioner Muhammad Ashraf Butt was working at the relevant time as Accounts Assistant in the office of the Chief Engineer Survey and Research Organisation, WAPDA, Lahore. He was an active member and Chief Organizer of the Pakistan WAPDA Lahore Union (non-CBA) and according to him he used to press the demands of the employees and on account of such Trade Union activities he was being harassed by the Management with several show-cause notices and charge-sheets calling for his explanations, so much so, that his peaceful entry in the WAPDA House and Sunny View (WAPDA) were also banned.
3. The case of the respondents is that 31st October, 1979, the petitioner visited the office of the Director (Labour), WAPDA to deliver a copy of a press release signed by him on behalf of WAPDA Action Committee of his Union and that he misbehaved with the Director (Labour) (WAPDA) by using abusive language. The Director (Labour) reported the matter to Member (Finance) through a note who forwarded it to the Chief Engineer (Survey and Research) who forwarded it to Deputy Director (0) Survey and Research Organization, WAPDA under whom the petitioner was working directing him to call for explanation of the alleged misconduct under Rule 5 of the WAPDA (Efficiency and Discipline) Rules, 1978. Accordingly, explanation was called from the petitioner to which he submitted a reply on 11th November, 1979 denying the allegation of misconduct in which while admitting that he had visited the office of the Director (Labour), WAPDA to deliver a copy of the press release stated that his staff declined to receive the same without prior permission of the Director (Labour). That therefore, he approached the Director (Labour) himself but he refused to attend to him and ordered him to leave his office immediately. Accordingly, he returned to his office without delivering the copy of the press release and stated that it was the Director (Labour) himself who had misbehaved with him. As his explanation was not found satisfactory, a show- cause notice was issued to the petitioner dated 24th November, 1979 requiring the petitioner to submit a written defence under rule 5 (iii) (b) of the West Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978. On receipt of the show cause notice, the petitioner requested for being supplied with a copy of the note of the Director (Labour), WAPDA containing the complaint of alleged misbehaviour against him and copies of other documents to enable him to submit a reply to the show-cause notice, but the same were not supplied to him. However, the petitioner submitted an interim reply to the show cause notice on 16th December, 1979. This reply was found not satisfactory. Accordingly, by office Order dated 22nd December, 1979, the Manager Finance (Water), WAPDA. As competent authority imposed the major penalty and ordered that the petitioner shall be removed from service with immediate effect under rule 5 (iii) (b) of the WAPDA Employees (Efficiency and Discipline) Rules, 1978 "as the charges have been proved against him".
The petitioner therefore filed the present petition under section 6 of the said Act for relief.
4. After filing parawise comments, Respondents submitted supplementary comments on 7th June, 1980 raising preliminary objection against the maintainability of the petition as also against the jurisdiction of the Commission as Specified Authority, on the ground that the petitioner was not covered by the relevant Notification No, SRO. 1121 (1)/79, dated 3rd December, 1979 issued under subsection (3) of section 3 of the said Act, declaring "all classes of employment in connection with generation, transmission, distribution or supply of electricity to be an employment to which the Pakistan Essential Services (Maintenance) Act, 1952 shall apply". It was contended by the respondents that the petitioner was employed in WAPDA on the Water side in the Survey and Research Organization on the date of his removal from service and that his employment had no connection directly or indirectly with the generation, transmission, distribution or supply of electricity. The petitioner submitted a reply relying on another Notification dated 27th September, 1979 No, SRO. 667 (1)/79, declaring "all classes of employment under the WAPDA and Tarbela Dam Consultants (TAMS), working on the Tarbela Dam project to be an employment to which the said Act shall apply". It was contended by him that this latter Notification specifically covered all classes of employment under WAPDA by name which included his employment with the Survey and Research Organisation (Planning Division). However, in the alternative he contended that the Survey & Research Organization was connected with the generation of electricity as it is entrusted with the Survey and research on Dams which were ultimately used for the generation of electricity.
5. As there appeared to be some doubt as to which of the Notifications above reproduced, if any, applied to the petitioner's employment, parties requested me that I should obtain a clarification from the concerned Ministry. I acceded to the said request of the parties and directed the Registrar of the Commission to seek necessary clarification. Accordingly a letter was addressed to the Interior Division on 9th March, 1981. A reply was received from the Section Officer of the said Division, informing the Commission that as the two Notifications in question were issued on the recommendations of the Ministry of Water and Power which is administratively concerned with WAPDA, the matter has been referred to that Ministry for their views and comments. But to-date, the required clarification from the said Ministry of Water and Power has not been received, but instead, a Section Officer (A. M. Usmani) Interior Division has sent a letter dated 28th May, 1981 No, 7/13/81/Poll-(1)/2, expressing his opinion that neither of the aforesaid Notifications was applicable to the employment under the Survey and Research WAPDA, Lahore on 22nd December, 1979, the date on which the Petitioner was removed from service. I am not prepared to accept the personal opinion of the Section Officer as the desired clarification as it is without legal significance. The said information is contrary to the clarification which was issued earlier on 18th May, 1977 by the Ministry of Water and Power in consulation with Law Division under their letter No, WB (1)/19 71-WAPDA dated 18th May, 1977 addressed to Mr. Amanullah Khan, Secretary, WAPDA Lahore that the corresponding Notification then in force applied to all employees of WAPDA.
6. A similar question arose for consideration by the Specified Authority in the case of Ch. Abdul Shakoor V. WAPDA in which my learned predecessor Mr. Justice Ataullah Sajjad, referred to the said letter and held that it covered all classes of employment including the case of the petitioner Ch. Abdul Shakoor who was serving as Assistant Accountant in the WAPDA. A similar view was expressed by Late Mr. Justice Inamullah Khan, Labour Appellate Tribunal in Representatives of WAPDA Workers' Union and others v. Fazle Khaliq Khan, Chairman, 1st West Pakistan Industrial Court, Karachi and others reported in at page 498, in which it was held that the employment of workmen in the machinery workshop of Machinery Pool Organisation (M. P. O.), WAPDA was covered by the corresponding Notification declaring all employment connected with the generation, transmission, distribution or supply of electricity to be an employment to which the said Act applied. Moreover, it is not difficult to visualise that the Water Wing and the Survey and Research Organisation of WAPDA are connected with the organisation of the Power Wing of WAPDA, and are not independent of each other, as is evident from the fact that the Mangla and Tarbela Dams have been constructed and repaired by the Water Wing in consultation with the Survey and Research Organisation, which dams are connected with the generation of the electricity. Besides there is common finance, budget and control. I have no hesitation in holding that the employment of the Petitioner a Accounts Assistant in the Survey and Research Organisation, was covered by the Notification dated 3rd December, 1979 rather than by Notification dated 27th September, 1979 which was specifically limited to employees of WAPDA working on the Tarbela Dam Project.
7. Under section 5 of the said Act, is an offence for an employer to discontinue the employment of any person engaged in employment covered by a Notification declared under section 3 of the said Act, without reasonable excuse. In the instant case, the charges against the petitioner have been found proved only because his reply to the charges were found unsatisfactory without holding any enquiry or giving the petitioner an opportunity to produce evidence in support of his defence.
Under standing Order 15 (4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the petitioner was entitled to an equiry, which statutory provision prevailed over the rule 5 (iii) (b) of the West framed by WAPDA. Pakistan WAPDA (Efficiency and Discipline Rules, 1978. Therefore, in the absence of any material before me. I am not satisfied that the respondents have established any excuse much less any reasonable excuse except the ipse dixit of the Authority for discontinuing the employment of the Petitioner. Even the note of the Director (Labour), WAPDA dated 31st October, 1979 containing the complaint which was forwarded through Member (Finance) to the Chief Engineer, Survey and Research was not produced. The respondents have therefore, failed to discharge the burden of establishing reasonable excuse.
8. I would accordingly, set aside the order removing petitioner from service and direct that he be reinstated forthwith back benefits. The respondent shall be at liberty to hold an enquiry if it so wishes to establish the alleged misconduct after giving opportunity to the petitioner to defend himself. The petition is accordingly allowed. 1980 PLC 529 1969 PLC 492 1 2 1 2