' This is an application under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 by Mohammad Aslam, Sub. (Retired) son of Abdul Aziz against Resident Engineer, Gas Turbine Power, Power Station Kotri, Sind and two others for directions that his dismissal from service by order of the respondent dated 23rd February, 1980 is illegal and that he may be reinstated in service with back benefits.
2. Briefly the facts are that the applicant who had retired from the Army as Junior Commissioned Officer after thirty years service, was appointed on 28th September, 1978 as a Security Inspector, Gas Turbine Station, Kotri under work-charged establishment. His services were regularised later against a permanent regular vacant post of Security Inspector. It is the case of the applicant that while he was posted at the main gate of the Power Station on 22nd October, 1979 he caught red- handed Mohammad Naeem Akhtar, Assistant Security Officer, Electrical and K. M. Rashid, Electrical Foreman who were attempting removal of some electrical wire though emergency gate without any gate pass. The applicant reported the alleged theft to the Resident Engineer and to the Martial Law Authorities and at the instance of the latter, the Resident Engineer gave an undertaking to produce these two alleged culprits. However, proceedings did not take place before the Martial Law Authorities. It is the case of the applicant that as a result of detection by him of the attempted theft he had been victimised by the Resident Engineer as well as the Assistant Security Officer, so much so that he was refused one day's casual leave by the Assistant Security Officer when he applied for casual leave to collect his ration from the Army Supply Depot, Hyderabad. The applicant however stated that leave was granted verbally by the Resident Engineer who told him that he may go, but in spite of it show-cause notice was issued to him on 6th December, 1979 by the Assistant Security Officer for being absent without permission on that day, to which he replied that the show-cause notice was issued because of personal grudge by the Security Officer whom he had caught red- handed attempting to steal electric wire.
3. On 22nd December, 1979 the Resident Engineer, issued a letter alleging misconduct on the part of the applicant for wilful insubordination and habitual absence without leave. The applicant submitted an explanation. Again on 21st January, 1980, a further show-cause notice was issued by the Resident Engineer, alleging unsatisfactory performance and negligence in duties in that, on 17th January, 1980 the applicant misbehaved with the Electrical Foreman when he was carrying a motor to Canal pump under gate pass No, 1698. The applicant submitted an explanation to the said show-cause notice, but on 23rd February, 1980 the applicant received a copy of letter addressed by Director Security, WAPDA to the Resident Engineer, informing the applicant that his services stood terminated with immediate effect and that Retd. Sub. Mohammad Saghir has been appointed in his place. No reference whatsoever was made to any of the two show-cause notices referred to above nor that he had been found guilty on the said charges. After serving grievance notice to the respondents, the applicant approached the Labour Court on 2nd April, 1980. The respondent's contention before the Labour Court was that the Labour Court had no jurisdiction and the proper forum was the National Industrial Relations Commission. Accordingly the applicant withdrew the application 3rd July, 1980 and filed the present applicant before the Commission on 14th July, 1980.
4. I have heard Mr. Zahoor Ahmed Arain Advocate for the petitioner and Mr. Arshad Noor Khan Advocate for the respondent. It is not disputed that no enquiry was held against the applicant pursuant to any of the show-cause notices. However, it is the contention of Mr. Arshad Noor Khan for the respondent that no enquiry was required under the law in the case of the applicant under paragraph 35.7 of the WAPDA Book of Financial Powers dated 29th December, 1977, because the applicant was member of the work-charged establishment, who was found guilty of serious misconduct and that in such a case services can be terminated without notice. This contention of the respondent has no force. In the first place, I am not satisfied that the instruction contained in the Book of Financial Powers have the force of statutory rules framed under the WAPDA Act of 1958.
Even if they have such legal force, the provision of Pakistan Essential Services Maintenance Act, 1952 prevailed over the said instructions. Under section 5 of the latter Act, no person engaged in any employment which has been declared to be an Essential Service under section 3 of the said Act by the Federal Government can be discontinued in employment without reasonable excuse.Clearly in this case no enquiry was held against the applicant nor applicant was given any opportunity to defend himself much less has he been found guilty on evidence. This is a clear case of breach of natural justice and of condemning a person unheard. It cannot therefore, in my opinion amount to any reasonable excuse.
5. Even if an applicant is employed on work-charged basis, nevertheless he is excluded from the definition of Civil Servant contained in section 2 (1) (b) (ii) of the Civil Servant Act' 1973. Therefore, the jurisdiction of the Commission has not stood ousted. These questions of law were fully considered in Ch. Abdul Shakoor v. WAPDA in which my learned Predecessor Chairman held that the provision of the Essential Service Maintenance Act, 1952 prevailed over any other law and that the employer has to satisfy the Commission that there was 'reasonable excuse' for termination of the services of every person employed in an Essential Service, whether he be a civil servant or not.
A reference may also be made to the case of Ch. Inayat Ali and others v. WAPDA and PLJ 1980 Tr.
C (Labour) 57 and Mohammad Fayyaz v. WAPDA, which also take the same view in respect of an employee of WAPDA who was a worker and thus excluded from the definition of civil servant.1 2 3
6. It was contended on behalf of the respondent that provision of section 6 of the Essential Services Maintenance Act, 1952 was not applicable and that the Commission had no jurisdiction, to question the order of dismissal of the applicant in view of section 17 (1-C) of the WAPDA Act, 1958 as amended by Ordinance LXXII of 1979. This contention has no force since the order of termination of the services of the applicant has not been passed by the Authority under section 17 (1-A) of the WAPDA Act, 1958.
7. It was finally contended by the respondent's Advocate that this petition was barred by time as it was filed after more than two months from the date of dismissal of the applicant. In this connection, the Chairman of the Commission has jurisdiction to condone the delay on good cause shaven under the second proviso to direction 2, of direction published in the Gazette of Pakistan on 27th January, 1979. It is the case of both the parties that the Labour Court had no jurisdiction to entertain an application under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952.
Therefore, the provision of section 14 of the Limitation Act, 1908 are attracted and time spend in persuing the remedy before the Court which has no jurisdiction, may be excluded in computing the period of limitation. If the said time spent before the Labour Court is excluded, as I think the applicant is entitled to the benefit of section 14 of the Limitation Act, the application would be within time.
8. For the foregoing reasons. I would allow this petition and hold that the order of termination of the applicant dated 23rd February, 1980 is illegal. The applicant shall be reinstated in service immediately with full back benefits.
9. The above directions shall be sent to the Interior Division for publication in the official Gazette. 1980 PLC 529 1980 PLC 480 1980-PLC 664 (o)