1. This is an appeal against the order dated 27-01-2017 passed by Saleem Jan Khan, the learned Member NIRC Karachi whereby the grievance petition of the appellant was dismissed.
2. Brief facts of the appeal, as asserted by the appellant, are , that the appellant filed grievance Petition No. 13/201 1 before the Sindh Labour Court No. 4 at Karachi but the same was transferred to the NIRC in light of the judgement passed by the Hon'ble Sindh High Court in K-electric case as the respondent is a trans-provincial establishment. The petitioner has stated in his petition that he was appointed as Cargo Assistant and joined his duties on July 05, 2010. However , he was terminated from service vide order dated 25.11.2010 without inquiry , show cause or observing codal formalities.
3. Contention of the learned counsel for the appellant is that the impugned order is against the settled law and liable to be set aside, It has been contended that the learned Member has failed to touch the merit of the case and ignored the documents produced by the appellant and also failed to record a reason for dismissing the petition. The learned counsel vehemently argued that the appellant is a workman and protected under the labour law; however , the learned Member has failed to consider the prescribed procedure i.e. show cause, inquiry etc. has not been followed before terminating the services of the petitioner .
4. The learned counsel for the appellants further submitted that the appellants were appointed in the PIAC after scrutiny and in case of any irregularity , the appointing authority is to be blamed and proceeded against instead of the poor worker who earns livelihood for himself and his family . The counsel for the appellant has also filed written arguments. It has been prayed that the impugned orders may be set aside and the appellant may kindly be reinstated into service. Reliance has been placed on case laws reported as 1994 SCMR (sic)
11. For the sack of convenience Section 12(3) of the Ordinance VI of 1968 is reproduced hereinbelow:- "Section 12(3)
The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed form service except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of Section 25-A of the Industrial. Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an industrial dispute."
Where a reference to Section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) is to be considered a reference to Section 33 of the IRA, 2012 . By virtue of Section 8 of the General Clauses Act, 1897, which Section reads as under:-- "Construction of reference to repealed enactments--(1)
Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals and re- enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted."
In this respect we are fortified by a judgment of the honourable Supreme Court of Pakistan titled National Telecommunication Corporation through Chairman vs. National Industrial Relations Commission through Chairman and others reported as 2014 SCMR 1833 .
12. In such eventuality definition of "workman" as embodied in S.2(i) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 would be considered. In this connection reliance can be placed on case of Mustekhum Cement Limited through Managing Director versus Abdul Rashid and other reported as 1998 SCMR
644. In case of termination of employment in violation of clause (3) of Standing Order 12 as pointed out hereinabove, it is sufficient that the workman concerned falls within the definition of the 'workman' given in clause
(i) of Section 2 of the Ordinance 1968 and he need not be covered by the definition of the 'workman' and 'worker' given in clause (xxxiii) of Section 2 of the IRA, 2012. In this connection reliance can be placed on case of Syed Matloob Hussain v . Broke Bond Pakistan Limited, Lahore reported as 1992 SCMR 227 .
13. The dismissal of the appellant without affording a fair and proper opportunity by dispensing with the inquiry is the flagrant violation of the mandatory provisions of the Industrial & Commercial Establishment (Standing Orders)
Ordinance, 1968 and principles of natural justice. The provisions of Standing Order 15 (4) of the Industrial & Commercial Establishment (Standing Orders) Ordinance, 1968 are mandatory and their non-observance was sufficed to vitiate the entire proceedings. In this behalf reference can be made to the judgment of the Hon'ble Supreme Court in the case titled Hafeez Shah versus United Bank limited and 2 others (2001 PLC 489 ).
13-A. The proceedings with regard to dismissal of the worker I having been conducted in violation of the mandatory provisions of the Industrial & Commercial Establishment (Standing Orders) Ordinance, 1968 and principles of natural justice could not be sustained; therefore, the impugned order dated 27-01-2017 passed by the learned single bench dismissing the grievance petition of the appellant as well as the termination letter dated 25-11-2010 are liable to be set aside.
14. For the foregoing reasons; while accepting the appeal the impugned order dated 27-01-2017 as well as termination letter dated 25-11-2010 are set aside with the directions to the respondents to reinstate, the appellant in service. However , the respondent establishment may have an option to proceed against the appellant for the alleged misconduct in accordance with law . File be consigned to record room after due completion.