Through this single judgment, I am inclined to decide the instant writ petition and W.P.No. 14079/2012 (Kot Addu Power Company Limited (KAPCO) etc., versus Muhammad Asim Khan etc) as the similar questions of law and the facts are involved in both the writ petitions.
2. The facts of the case are that the petitioner was employed with Respondents No. 3 and 4 as Attendant (shift-C). On account of an act of "misconduct", petitioner was served with the charge sheet on 13.01.2003 along with statement of allegations of abusing, severely beating and assaulting one Atta Ullah Khan, Assistant Chemist, Employee of Kot Addu Power Company. T' petitioner submitted his reply on 03.02.2003 which was found unsatisfactory by the employer and therefore inquiry committee was constituted. The petitioner participated in the inquiry proceedings; he was provided opportunity to cross examine the witnesses and produce his defence. After conclusion of the inquiry, the report was submitted on 12.03.2003 and on the basis of the report; a final show- cause notice was served upon the petitioner on 24.3.2003. The petitioner submitted his reply to the said show-cause notice on 07.04.2003 which was found unsatisfactory and the competent authority imposed a major penalty of dismissal from service upon the petitioner through order dated 12.04.2003. Initially, the petitioner made a representation dated 24.04.2003 and subsequently filed an appeal before Federal Services Tribunal at Lahore. The said appeal was abated as a result of judgment of the Honourable Supreme Court of Pakistan reported in PLD 2006 Supreme Court 602 (Muhammad Mubeen-us-Salam and others versus Federation of Pakistan through Secretary, Ministly of Defence and others). Thereafter, petitioner filed a grievance petition before Punjab Labour Court No. 9, Multan. The Respondents No. 3 and 4 filed their written reply. The Punjab Labour Court No. 9, Multan through judgment dated 12-03-2009 converted the dismissal from service order into the order of compulsory retirement while holding that the petitioner shall be entitled to all the retirement benefits according to the Rules.
3. Being dissatisfied from the judgment dated 12.03.2009; both the parties filed their respective appeals before the Punjab Labour Appellate Tribunal No. II, Multan.
4. It might not be out of place to mention here that the petitioners in W.P. No. 14079/2012 initially filed a Writ Petition No. 2472/2009 which was disposed of by this Court on 23.06.2009 with the direction to petitioners to approach Punjab Labour Appellate Tribunal.
5. Both the appeals were decided by Punjab Labour Appellate Tribunal through judgment dated 25.06.2012. The learned Punjab Labour Appellate Tribunal No. II, Multan dismissed both the appeals while upholding the judgment passed by the Punjab Labour Court No. 9, Multan. It is not out of place to mention here that the appeal filed by Respondent Nos. 3 and 4 was dismissed being barred by time.
6. Aggrieved by the judgments passed by both the Courts below, the instant writ petition and Writ Petition No. 14079/2012 have been filed. Through instant writ petition, the prayer has been made that the impugned judgments dated 12.03.2009 passed by the Punjab Labour Court No. 9, Multan and dated 25.06.2012 passed by Punjab Labour Appellate Tribunal No. II, Multan be set aside and the petitioner be reinstated in service, whereas through W.P No. 14079/2012, the relief has been sought to dismiss the grievance petition filed by the petitioner in the instant writ petition and upholding the order of dismissal from service by Respondents No. 3 and 4.
7. The learned counsel for the petitioner argued that the petitioner was victimized on account of the trade union activities. It has been further argued that the order of dismissal from service is premeditated; the inquiry proceedings were tainted with serious irregularities. It has been further argued that the petitioner was not given proper opportunity of hearing before imposition of a penalty of dismissal from service. Lastly the learned counsel for the Petitioner argued that charge sheet dated 13.1.2003 was issued under Rule 6 (1) of WAPDA Employees (E&D) Rules, 1978 which could not have been done after promulgation of Removal from Service (Special Powers)
Ordinance, 2000 and thus the entire proceedings initiated against the petitioner on the basis of charge sheet dated 13.1.2003 were illegal and without jurisdiction. Learned counsel for the petitioner while relying on 2007 SCM R 229 (Azizullah Menton versus Province of Sindh and another) prayed that this petition be allowed.
8. On the other hand, learned counsel for the Respondents No. 3 and 4 while pleading his case argued that the judgments of both the Courts below are violative of law. It was further argued that the appeal filed by the petitioner had been wrongly dismissed being time barred. It is further argued that the appeal could have been treated as a cro' objection to the appeal filed by the petitioner.
9. It has been further argued by the learned counsel for the Respondents No. 3 and 4 that both the Courts below could not have substituted the punishment awarded by the employer with their own findings if the charge was otherwise established. Learned counsel further argued that although the proceedings were initiated through charge sheet under Rule 6(1) of WAPDA Employees (E&D) Rules, 1978 but in fact the proceedings were initiated against the petitioner under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
10. I have considered the arguments advanced by the learned counsel for the parties and have also perused the record.
11. The question involved in this writ petition which is required to be resolved is of two fold nature.
Firstly, as to whether after promulgation of Removal from Service (Special Powers) Ordinance, 2000 proceedings could have been initiated against he petitioner under WAPDA Employees (Efficiency and Discipline) Rules, 1978; and secondly as to whether the charges levelled against the petitioner through charge sheet dated 13.1.2003 are covered by the definition of "misconduct" under West Pakistan Industrial and Commercial (Standing Orders) Ordinance, 1968; and the charge sheet dated January 13.1.2003 constituted an offence.
12. To answer the first question, I would refer to the charge sheet dated 13.1.2003 and Show-Cause Notice dated 24.3.2003 and lastly the order of dismissal from service dated 12.4.2003. All these documents substantiate the argument advanced by the learned counsel for the petitioner that the petitioner has been proceeded against under WAPDA Employees (Efficiency and Discipline) Rules, 1978 adopted by respondent-company as per Staff Agreement dated 27.6.1996. At this stage; it would be expedient/convenient to reproduce Sections 2(c), 11, 12 and 13 of the Removal from Service (Special Powers) Ordinance, 2000 which are as under:-- "Section 2(c). "person in corporation service" means every person in the employment of a corporation, corporate body, authority, statutory body or other organizations or institutions set up, established, owned managed or controlled by the Federal Government, or by or under any law for the time being in force or a body or organization in which the Federal Government has a controlling share or interest and includes the Chairman and the Managing Director, and the holder of any other office therein; and Section 11. Ordinance to override other laws.--The provisions of this Ordinance shall have effect notwithstanding anything to the contrary contained in the Civil Servants Act, 1973 (LXXI of 1973), and the rules made thereunder and any other law for time being in force.
Section 12. Proceedings under this ordinance.--All proceedings initiated on the commencement of this Ordinance in respect of matters and persons in service provided for in this Ordinance shall be governed by the provisions of this Ordinance and rules made thereunder.
Section 13. Pending proceedings to continue.--For the removal of doubts, it is hereby provided that all proceedings pending immediately before the commencement of this Ordinance against any person whether in Government service or corporation service under the Civil Servants Act, 1973 (LXXI, of 1973) and rules, made thereunder, or any other law or rules, shall continue under the said laws and rules, and as provided thereunder."
13. The accumulative reading of the above provisions would manifest that the person who is an employee in a corporation, corporate body, authority, statutory body or other organization falls within the definition of a person and would be amenable to the jurisdiction of the Ordinance. It is further observed that the Removal from Service (Special Powers) Ordinance, 2000 has an over riding effect on all other laws notwithstanding anything contrary thereto. The only exception to the rule has been created by virtue of Section 13 of the Removal from Service (Special Powers)
Ordinance, 2000 which provides that proceedings pending prior to the commencement of this Ordinance shall continue under the old law.
14. It is an undeniable fact that the Ordinance was promulgated on 27.4.2000 whereas the petitioner was proceeded against under the Rules on 13.1.2003, meaning thereby that the proceedings were initiated after promulgation of the Ordinance and ere thus without any sanction of law. This Court is of the view that he legal position elaborated above supported by the case law clearly signifies that the proceedings initiated against the petitioner' under APDA Employees (Efficiency and Discipline) Rules, 1978 were A holly without jurisdiction and the respondents could proceed against the petitioner under WAPDA Employees (Efficiency and Discipline) Rules, 1978.
15. To answer the second question I would refer to the charge sheet to determine as to whether the charges levelled against the petitioner fall within the definition of "misconduct" as provided in Standing Order 15 (3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
16. I would refer to the charge sheet issued by the employer to the petitioner on 13.1.2003 which is reproduced below:-- "Whereas it is reported by Mr. Atta Ullah Khan, Assistant Chemist (PID)-208327) on 12.01.2003 that you Mr. Muhammad Asim Khan Attendant, Shift-C have committed following acts of misconduct for which you are hereby charged as under:--
1. That on 12.01.2003 at 12:40 hours when Mr. Atta Ullah Khan, Assistant Chemist while parking his car in front of his house No. D-22, KAPCO Colony, you Mr. Muhammad Asim started abusing him, moved forward, caught him and attacked with punches and severely beaten him.
2. That you have been teasing him for the past four years by committing following acts;
(a) Giving torture time and again,
(b) Often taking fuel out of his vehicle, damaged and unlocked the vehicle,
(c) That you called the wicked people in your lawn and make them to sit all the time and raise voices and tease in different style when his family steps out of his house.
(d) That you have deputed some people to chase and tease Mr. Atta at different places i.e. Power House Gate, KAPCO Colony Gate, Colony area and Kot Addu City.
(e) Keep suspected people sitting in your lawn.
(f) That you often insulted and teased Mr. Atta's children".
17. Since the learned counsel for Respondents No. 3 and 4 has frankly conceded that the petitioner is a workman under West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 (Ground 'h` in Writ Petition No. 14079/2012); as, it has been admitted by the learned counsel for the Respondents No. 3 and 4 that the petitioner has been proceeded against under the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 it would be appropriate to reproduce definition of "misconduct" as given in Standing Order No. 15(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which is as under:-- 15(1)
(i) ...........................
(ii) ....................
(iii) .................
(iv) ..............
15(3) The following acts and omissions shall be treated misconduct:--
(a) Willful insubordination of disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior,
(b) Theft, fraud, or dishonesty in connection with the employer's business or property,
(c) Willful damages to or loss of employer's good on property,
(d) Taking or giving bribes or any illegal gratification,
(e) Habitual absence without leave or absence without leave for more than ten days,
(f) Habitual late attendance,
(g) Habitual breach of any law applicable to the establishment,
(h) Riotous or disorderly behavior during working hours at the establishment or any act subversive of discipline,
(i) Habitual negligence or neglect of work,
(j) Frequent repetition of any act or commission referred to in clause (I),
(k) Striking work or inciting others to strike in contravention not the provisions of any law, or rule having the force of law,
(l) Go slow.
(4) ................
(5) ...........
18. The perusal of the definition of "misconduct" as given in Standing Order 15(3) manifests that none of the instances of "misconduct" mentioned in Standing Order 15 (3) have any consonance with the misconduct attributed to the petitioner in charge sheet; as all e instances of "misconduct" mentioned in Standing Order 15(3) are relation to "misconduct" committed during the performance of duty.
19. Giving fist blows to a fellow employee in front of his house may be a criminal act committed by the petitioner in his personal capacity but is not covered by the definition of "misconduct" given in Standing Order 15(3) on the basis of which a major penalty of dismissal from service has been imposed.
20. In my opinion, if the act of the petitioner is not covered by the definition of "misconduct" as given in Standing Order 15(3) then the question of initiating an inquiry as well as imposition of major penalty of dismissal from service could not arise. If the basic act is void when the entire superstructure developed on the basis of an action not countenanced in law must fall to ground. It has been held by Hon'ble Supreme Court of Pakistan in a judgment reported in PLD 1958 Supreme Court (Pak.) 104 (Yousaf Ali versus Muhammad Aslam Zia d 2 others) that if on the basis of a void order subsequent orders have been passed either by the same authority or by the other thirties, the whole series of such orders, together with the superstructure of rights and obligations, must fall to the ground a use such orders have as little legal foundation as the void order on which they are founded.
21. Taking guidance from the dictum laid down by the august Supreme Court of Pakistan I must observe that the "misconduct" attributed to the petitioner is not covered under Standing Order 15(3); therefore, the question of imposition of penalty under Standing Order 12 (2) would not arise.
22. For what has been discussed above, I am of the view that the proceedings initiated against the petitioner are tainted with legal malice as the same cannot be countenanced in law. Both the Courts below i.e. Punjab Labour Court No. 9, Multan and Punjab Labour Appellate Tribunal No. II, Multan have failed to appreciate the le question involved in this case; end passed the impugned judgments I a mechanical manner.
23. Resultantly, this writ petition is allowed. The impugn judgments dated 12.03.2009 passed by Punjab Labour Court No. Multan and dated 25.06.2012 passed by Punjab Labour Appellant Tribunal No. II, Multan are set aside. Grievance petition filed by the petitioner is accepted, the impugned order of dismissal from server dated 12.04.2003 is set aside. The petitioner is reinstated in service With immediate effect. The Writ Petition No. 14079/2012 is dismissed