' Petitioner Syed Hassan Ali has filed this application under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 against the Karachi Electric Supply Corporation Ltd., Karachi for a direction that order passed by the respondent dated 14th February, 1980 downgrading him from the post of Supervisor (Electrical) Grade IV to Assistant Supervisor (E) Pay Scale Grade III-A be declared illegal And for setting aside the same.
2. The case of the petitioner is that on the relevant date of the impugned order, he was holding the post of Supervisor (Electrical) in Grade IV. The respondent found him qualified for promotion to the next higher grade of Senior Supervisor (Electrical) Pay Scale V and issued office Memorandum dated 8th May, 1975 which showed petitioner's name at serial No,
4. That in spite of being declared eligible for promotion, the respondent neither filled in the posts in higher Grade V as and when they fell vacant, nor promoted the applicant. Therefore he made several representations, but with no success except that he was allowed to officiate in the higher post of Senior Supervisor Grade V for a temporary period between 20th August, 1978 and 3rd September 1979 on which date, he was replaced by Manzur Elahi, who was brought on transfer from operation section. It is alleged by the petitioner that respondent even refused to treat him as qualified for promotion. Therefore, the petitioner was compelled to approach the Labour Welfare Department on 29th October, 1979 to looK into his grievances, and he stated that this considerably annoyed the Management of the respondent and therefore, he was victimised by being served with a charge-sheet on 31st October, 1979 to the effect that in spite of clear instructions, he did not park the Suzuki Pick-up No, 082-860, which was allotted to him, at Power House Elandar Road, Karachi and instead kept using the said vehicle in the evening for private use.
3. He submitted his explanation denying the charges as false and revengeful and discriminatory.
His plea was that Suzuki Pick-ups were allotted to seven different employees of the respondent in replacement of Tr-Mobile Rickshaws with the approval of the Management and despite the condition in the allotment letter that the vehicles will not be taken home by the employees, the Management allowed them to take the vehicles home to be kept in the employees' possession, as they often contained important instruments, and test forms, which are kept in the vehicles. The petitioner further submitted that although there are seven allottees of Suzuki Pick-ups, he has been picked up, and victimised because he has been making representations against the Management for his promotion to the outside authorities.
4. His explanation was found unsatisfactory and accordingly an enquiry was instituted against the petitioner in which Syed Abrar Ali, Executive Engineer (Meter) and Syed Ali Bahadar Senior Traffic Assistant gave evidence on behalf of Management, while the petitioner filed his written statement.
He was found guilty and the punishment inflicted was that he was downgraded to lower rank of Assistant Supervisor (Electrical) Pay Scale III-A by the impugned order dated 14th February, 1980.
When he was transferred to another section on 13th July, 1980 he made a representation on the following day expressing surprise, but accepted it under protest. He received a reply dated 2nd August, 1980 informing him that he had been "downgraded" to the post of the Assistant Supervisor
(E) Pay Scale III-A on 14th February, 1980 and hence his representations could not be entertained.
5. I have heard Mr. Ali Amjad, Advocate for the petitioner and Mr. Safiullah Siddiqui Representative of the respondent. The charge related to disobedience of instructions issued by the Deputy Chief Engineer (0 & M) which were communicated to all the Supervisors/Drivers by circular dated 3rd March, 1979 informing that with immediate effect all vehicles mentioned therein have to be parked at the Power House of the respondent, failing which disciplinary action will be taken against the defaulters. The name of the petitioner and his Suzuki Pick-up 082-860 is mentioned therein at serial number 2. This circular was returned by Foreman Barkat Masib to the Executive Engineer (Meter) with an endorsement dated 5th March, 1979 that the Supervisors (Self-drivers) have refused to park the vehicles with the excuse that :-
(1) Where the vehicles shall be parked.
(2) Who shall take over the vehicles.
(3) Who shall be responsible for Test forms meters and tools which are kept in the vehicles.
' A reply was sent by the Executive Engineer to Foreman Barkat Masih dated 6th March, 1979 objecting to his endorsement and directing him to inform the Supervisors to obey his order on pain of disciplinary action and that if they had any grievances, they may present them to the Deputy Chief Engineer. On receiving this reply the said Foreman again made an endorsement on 7th March, 1979 and forwarded the same to the Executive Engineer that the "Superintending Engineer (0 & M) has instructed on phone that the Supervisors shall not park the vehicles and and shall carry on their duties as usual. The problem shall be solved with the discussion of the Executive Engineer (M). The Supervisors have been informed accordingly".
6. Both these letters of 3rd March, 1979 and 6th March, 1979 and their respective endorsements have not been disputed by the learned Representative Mr. Safiullah Siddiqui and in fact they were produced by the respondent although both the respondent's witnesses who were examined at the enquiry were not confronted with the endorsements, the questions and answers recorded therein clearly leave no doubt that none of the Supervisors were parking their Suzuki Pick-ups in the Power House after duty hours and also that no one was posted there to receive charge of the vehicle. Jo fact, Syed Ali Bahadar witness categorically stated in cross-examination, that none of them were parking their Suzuki Pick-ups 'there. The main witness Syed Abrar Ali, Executive Engineer, when asked whether others were parking the vehicles in the Power House, replied that the question was "irrelevant". Moreover the Executive Engineer (Meters) who issued the Circular to the Supervisor dated 3rd March, 1979 addressed a Memorandum to the Superintending Engineer (P & C)/Dy. Chief Engineer (0 & M) on 14th May, 1979 in which he explained the history of the allotment of Suzuki Pick- ups to the Supervisors and parking of the same at Elandar Road, Power House in which he stated that the Suzuki Pick-ups were given to Supervisors in replacement of Tri-Mobiles, which had deteriorated and were not road-worthy, since 1974. The Tri-Mobiles continued to be retained by Supervisors and parked at their residences and they were given monthly driving allowance of Rs, 25 per month. When the Supervisors were allotted Suzuki Pick-ups after 1974, their driving allowance was enhanced to Rs, 75 per month. It was a condition of allotment of the Suzuki Pick-ups that the vehicles had to be parked at Elandar Road, Transport yard. But, in spite of these instructions, the Supervisors collectively and then individually continued to retain the vehicles at their houses and approached the Management with the help of Collective Bargaining Agent for permission to retain the vehicles. It is therefore, quite clear that the order of the Dy. Chief Engineer (0 & M) was "honoured more in the breach than in its observance." As the said order was not acted, nor insisted upon by the Management, it cannot b said that its disobedience amounted to wilful insubordination or under Standing Order 15 0) (a) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The second charge that the petitioner used the vehicle for private purpose has not been established on the evidence except that Mr. Safiullah wanted me to draw a presumption that the petitioner must have used it for his private use, which I decline to do.
7. For the foregoing reasons, I would allow this petition and set aside the impugned order dated 14th February, 1980 degrading the petitioner and direct that he be re-instated to the post of Supervisor (E) Grade IV, the post which he held immediately before the impugned order demoting him. Was passed. The petitioner shall be entitled to the difference in the wages and allowances.
The second prayer of the petitioner for his promotion to post in Grade V cannot be acceded to, as no one has any vested right to promotion. The Management will no doubt consider his case in due course.
8. The above directions shall be sent to the Interior Division for publication in the official Gazette.