' This is a petition under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952, praying for a direction to issue to the respondent declaring that his removal from service was without reasonable excuse and for re-instatement with back benefits.
2. The petitioner Sikandar AU Baloch, was appointed as a Junior Officer in the Transport Department of the Pakistan Steel Mills Corporation Limited, Karachi on 15th December, 1976, The letter of appointment provided in paragraph (c) that his appointment in the Corporation would be temporary and on probation of one year in the first instant and further stated that the appointment could be terminated at three months notice on either side or by the Corporation on payment of three months pay in lieu of such notice. After completing one year's service on probation, he was continued in service and under clause (ix) of the Corporation Service Regulations, 1969, he became entitled to confirmation, although no formal letter of confirmation was issued to him by the Managing Director. No adverse remarks were conveyed to him for the Annual Confidential Report for the year, 1977, but in respect of ensuing year, adverse remarks were communicated to the effect that his "initiative and drive" power of expression and quality of output" were below average. The petitioner made representation against these adverse remarks but received no response. It is the petitioner's contention that these remarks were of a remedial nature and, as is evident from the rating in the Annual Confidential Report for the year, 1978, at Serial No, 21, he was "likely to become tit for promotion in course of time. The said Annual Confidential Report recommended his increment at serial number 19.
3. The petitioner's case is that despite the said rating, be received termination order, dated 17th July, 1979, terminating his services with immediate effect under clause (c) of the letter of appointment, and he was advised to collect three months' pay in lieu of notice. The reason assigned for the termination was that his performance "has not been found satisfactory. He was given many chance to improve his performance by placing him in different sections of the Transport Department, but he failed to improve himself". He filed a grievance petition supported by a recommendation from his immediate superior Ch. Muhammad Bashir, S. E. (Maintenance) Of, dated 19th July, 1979. As no reply was received, he submitted an appeal to the Chairman of the Corporation on 4th August, 1979, and sent a reminder to appeal on 29th September, 1979, endorsing a copy thereof to the Chairman, National Industrial Relations Commission requesting his reinstatement. He was advised by the office of the National Industrial Relations Commission that he should sumbit a proper to the regulations. Therefore, on 27th October, 1979, he submitted the present petition.
4. The above dates have been mentioned in order to appreciate the contentions of Mr. Masud Mirza Representative of the respondent that the petition was submitted beyond two months of the accrual of the cause a action and was therefore, time barred. In reply Mr. Muhammad Shafiq Qureshi Advocate for the petitioner referred to the affidavit of the petitioner explaining the various steps pursued by the petitioner to obtain his reinstatement which according to him led to misunderstanding on his part as to the date for filing this application. Under the Regulations, the Chairman is vested with discretion to condone the delay on good cause shown. I am satisfied that this is a fit case for condoning delay in filing the present petition and accordingly the delay is condoned.
5. The employment of the respondent has been declared to be an Essential Service to which provisions of Pakistan Essential Services (Maintenance) Act, 1952, have been applicable. Under clause (1) of section 5 of the said Act, an employer of a person engaged in an employment to which the Act applies who discontinues the employment of such person without reasonable excuse, is guilty of offence under the Act. In other words, the employer has to establish an excuse or justification for discontinuing the employment, which has to be reasonable and which is justiceable by the " Specified Authority. Mere termination of service in accordance with the terms of letter of appointment would not afford a reasonable excuse. However, in the instant case, the excuse put forward for termination is unsatisfactory performance and failure to improve himself. As rightly submitted by Mr. Muhammad Shafiq Qureshi, Learned Advocate for the petitioner, this reason attaches stigma and in fact amounts to dismissal or removal from service. He relied on cases as reported in P L 3 1975 Kar. 412 and 1979 SCM R 304 that termination of service for unsatisfactory performance was held to be tantamount to removal. It is therefore, the contention of Mr. Qureshi that the petitioner was entitled to an opportunity to defend himself against the said charge. Clause
(60) of the Corporation Regulations provided that no order of dismissal shall be passed against an employee unless he has been informed in writing of the grounds of which it is proposed to take action and has been afforded opportunity to defending himself and that the grounds on which it is proposed to take action shall be reduced to the form of a definite charge, which shall be communicated to him. Standing Order 15 (4) of the Standing Orders Ordinance, 1968, also provides that a workman shall be given an opportunity to defend himself. The provisions of both the said requirement of law are consistent and have not been complied with. No opportunity was given to the petitioner to adduce facts and evidence in support of his defence, in order to show that facts so proved do not justify dismissal from service. Accordingly, I hold that the termination of service of the petitioner is without 'reasonable excuse', and is illegal. The respondent is directed to reinstate the petitioner in service with back-benefits. The respondent however, is at liberty to initiate enquiry proceedings in accordance with the procedure laid down under Respondents Service Regulations and as required under clause (4) of Standing Order 15 of the Standing Orders (Ordinance), 1968.