' This civil revision has been brought against a judgment and decree dated 7th November, 1973 passed by Mr. Salah-ud-Din Zafar, District Judge, Jhang whereby in accepting an appeal he decreed the suit while setting aside a judgment dated 25th July, 1972 of the learned Administrative Civil Judge, Jhang who in his turn had dismissed the suit of the plaintiff/ respondent. The facts of the case briefly are that respondent Muhammad Nawaz instituted a suit on 5th June, 1969 against the petitioners in the Civil Court at Jhang for a declaration to the effect that he continued to be in service as a bus conductor in the Government Transport Service and an order, dated 17th April, 1967 dismissing him from service was without jurisdiction, illegal, void, mala fide and ineffective as to his rights.
3. The respondent was serving as a conductor in the Government Transport Service. On 21st February, 1967 a complaint was made against him by the Traffic Assistant that according to his checking nine passengers were found travelling in the bus from Jhang Saddar to Jhang city without tickets when the respondent was performing his duty as a conductor in the bus. From four passengers out of nine he had realized the amount :of fare. He was charge-sheeted on 14th March, 1967 to show cause as to why an action should not have been taken against him for the misconduct and an act of dishonesty.
4. An inquiry was held by an Officer of the Anti-Corruption Cell G.T.S. Faisalabad in presence of the respondent who had denied the charge. In respect with the charge the plea raised by the respondent was that he did not realize the amount of fare from four passengers. He was in controversy with those passengers regarding the amount of fare as they were five in number and they were insisting to pay the amount of fare to the tune of Re.
0.40 for five tickets while he was insisting to collect the amount of fare to the extent of Re.
0.50 according to the fare table. As to the other four passengers he maintained that he had neither realized the amount nor issued the tickets because he was still involved in the first controversy. In the opinion of the Inquiry Officer the respondent had failed to justify himself in respect with nine ticketless passengers, so the respondent was found as guilty of negligence in the performance of his duty and on that account the Inquiry Officer recommended for a severe censure and the stoppage of his increment for a period of one year with non-accumulative effect. The report was forwarded to the Deputy Traffic Manager respondent No, 3 who did not agree with the Inquiry Officer and held the respondent as guilty on the charges and recommended his dismissal from the service on 14th April, 1967. The District Manager petitioner No, 2 on the same day observed that, that was a proved case of dishonesty, so he dismissed him from the service.
5. In the plaint it was mainly averred by the respondent that he was dismissed from his service without a show-cause notice. He was not provided with the copies of the statements against him nor he was given an opportunity to adduce his defence. He was not provided with a copy of the inquiry report. All the rules and regulations were not observed. The inquiry report should have been sent straightaway to the District Manager. The District Manager should have agreed with the recommendation of the inquiry officer. The order of dismissal was based on mala fide. He was dismissed from his service as a result of a conspiracy hatched by a few checkers with the connivance of the Assistant Manager. The suit was resisted by the petitioners on the ground that the civil Court was not competent to try the suit. The plaintiff /respondent having not preferred an appeal or revision against the order of dismissal, could not bring the suit. The prayer of the respondent could not be granted as section 21 of the Specific Relief Act operated as a bar. The entire proceedings were held in accordance with law. A second show-cause notice in law was not necessary. The order of dismissal was lawful and all the proceedings were bona fide. The suit was barred by limitation. The suit was liable to be dismissed.
6. The learned Civil Judge framed in all six issues according to the pleadings of the parties and their variance. As to issue No, 1, whether the order of defendant, dated 17th April, 1967 was illegal, void and ineffective for the reasons stated in para. No, 7 of the plaint, the learned trial Judge gave his finding that the inquiry was conducted in accordance with the provisions of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and the Road Transport Workers and Workmen Service Regulations framed under rule 15 of the Road Transport Workers Rules, 1965. The respondent was not entitled to a show-cause notice before the order of his dismissal. The inquiry proceedings were perfectly legal and valid. The order of dismissal of the respondent passed by petitioner No, 2 was not mala fide. The District Traffic Manager was not bound to agree with the report of the inquiry officer. The issue was answered in the negative. The issue No, 2 as to the maintainability of the suit under section 21 of the Specific Relief Act was not pressed upon. The respondent was regarded under issue No, 3 as entitled to bring the suit. Under issue No, 4 the suit was held as within time and under issue No, 5 it was found that the Court had the jurisdiction to try the suit was brought. As a result of the finding on issue No, 1 the suit was dismissed leaving the parties to bear their own costs.
7. The respondent took an appeal therefrom the judgment and decree of the learned Administrative Civil Judge, Jhang dated 25th July, 1972 to the learned District Judge, Jhang. The learned District Judge while considering issue No, 1 relied upon Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal Lahore and others a decision cited by the respondent in which decision while analysing clause (4) of the Standing Order 15 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968) their Lordships of the Supreme1 Court observed that under the clause three things were required before a dismissal could be ordered, firstly that a workman was to be informed in writing as to the alleged misconduct, secondly a workman was to be given an opportunity to explain the circumstances alleged against him and thirdly for the result and action an approval of an employer was to be secured. In the referred case certain extraneous matter being not the subject-matter of the inquiry was considered by the inquiry officer as was obvious from the report submitted by the inquiry officer recommending the dismissal of the respondent in that case. The extraneous matter which greatly influenced the inquiry officer in recommending dismissal was never brought to the latter's notice.
Had that been done so as observed by the Court the respondent might have succeeded in convincing his employer that, that was wholly an irrelevant consideration for passing an order of dismissal or there might have been a lesser penalty. In the report there were also certain circumstances in favour of the respondent which were disregarded by the inquiry officer. In their Lordships' view, that was necessary and consistent with the principles of natural justice that not only the respondent should have been furnished with a copy of the inquiry report but also he should have been given an opportunity to show-cause against the proposed dismissal. Evidently such an opportunity was to take the form of a written show-cause notice to the respondent. The mere fact that the respondent had a personal audience with his employer when he asserted that he was not guilty could not replace the aforesaid requirement of law.
8. The learned District Judge. Was of the opinion that the case in hand was more or less closer to decision cited above. Though there was nothing as extraneous in the inquiry report yet the matter in the case in hand was more serious and favourable to the appellant (respondent here) as far as was concerned the report. The inquiry officer had recommended lesser penalty and lenient action.
The employer did not agree and imposed the major penalty of dismissal. Under the circumstances in the language of their Lordships of the Supreme Court, it was necessary and consistent with the principles of natural justice that the employer should have given a personal audience to the appellant-respondent as well as a show-cause notice as to why he should not have been dismissed. The appellant (respondent here)' might have been successful in convincing the dismissing authority as not to have recourse to that major penalty and the circumstances were there which could weigh with the employer to award him lesser penalty. In the cited case the employer had given personal audience before dismissing, but in the case in hand no personal audience was given nor any show-cause notice. A copy of the inquiry report was also not provided to the appellant (respondent here). According to the learned District Judge in view of the cited decision of the Supreme Court the order of dismissal was against the natural justice. He set aside the finding of the trial Court and decided issue No, 1 in favour of the respondent. On rest of the issues except an issue not pressed upon, the findings of the trial Court were affirmed after a lengthy discussion on issues Nos. 2 and 5 which were decided in favour of the respondent. The learned District Judge resultantly in accepting the appeal decreed the suit as prayed.
9. The learned counsel for the petitioners has first submitted that the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 is a general law being applicable to all workmen which may include workshop fitters, mechanics, tyremen, oil men, yard master and Assistant Foreman, but so far as mobile duties staff is concerned that is specifically governed by the Road Transport Workers Ordinance, 1961 read with the West Pakistan Road Transport Workers Rules, 1962.
According to section 2(10) of the Ordinance "worker" means a person engaged on mobile duty and includes drivers, cleaners, conductors and checkers employed by or in a Road Transport Service.
The learned counsel has contended that the law contemplates a reasonable opportunity of showing cause against an action proposed to be taken, which opportunity was amply accorded as is borne out by the inquiry report. The law as it stands does not contemplate a second show-cause notice while imposing a penalty therefore, according to him the learned District Judge acted illegally in the exercise of the jurisdiction vesting in him by holding that in the absence of a show- cause notice by the employer while imposing the penalty, the dismissal as ordered was bad being opposed to the principles of natural justice. In elaboration of his argument the learned counsel has referred to section 7 of the Road Transport Workers Ordinance, 1961 dealing with restriction on termination of services etc. Detailing out the acts and omissions which constitute misconduct read with rule 6 of the West Pakistan Road Transport Workers Rules, 1962 which bears upon the procedure in termination of a service. Rule 6 reads as "(1) No order of termination of service of a worker for misconduct shall be made unless the worker concerned is informed in writing of the alleged misconduct and is given an opportunity to explain the same. If the worker disputes the charge an enquiry may be held by the employer or any person nominated by him.
(2) During such inquiry the worker may be suspended provided that the period of suspension shall not exceed seven days.
(3) If the charge is proved the worker shall be deemed to have been absent from duty from the date of suspension and shall not be entitled to any remuneration for such period. If the charge is not proved, the worker shall be entitled to the same wages as he would have received if he had been on duty.
(4) No order of termination of service shall be passed except by or with the approval of the employer.
(5) A copy of the final order terminating the service of the worker shall be supplied to the worker concerned".
' The learned counsel has maintained that first and second steps are mandatory, third one is directory, fourth is again mandatory and fifth follows as a mandatory part. The conclusion drawn by the learned counsel is that from the above-quoted rule no second show cause notice can be contemplated by any construction of the provision. What is not given directly by the law B cannot be taken up by appealing to any principle or rule of natural justice, since the justice is to be administered according to law and unless it happens to be a requirement of the law itself, it cannot be placed as obligatory.
10. The learned counsel in support of his argument has relied upon, Dawood Cotton Mills Ltd. v.
Guftar Shah . In this case respondent No, 1 remained absent from duty without any leave for more than ten days. He also failed to seek permission for further leave. He was charge-sheeted for misconduct. He failed to submit his reply to the charge-sheet. An inquiry was held as ex parte against him since he had failed to appear on the target date, despite certain steps having been taken to serve him. The inquiry officer submitted his report holding him guilty of the charge of misconduct under Standing Order No, 15 (3) (c) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and recommending his dismissal from service.
One of the questions involved in the case before the Supreme Court was that whether the High Court was right in thinking that the relevant Standing Order prescribed a second show-cause notice after the inquiry had been completed and a punishment was proposed by the inquiry officer or the Management. The august Supreme Court after analysing the provision and the point involved came to the conclusion, -In the provision under consideration the requirement is only in regard to the information to be given of the alleged misconduct and of giving an opportunity to explain the circumstances alleged against him. All that this conveys is firstly, an opportunity to deny his guilt and establish his innocence which the workman can only do, provided he is told what the charges levelled against him are and the allegations on which such charges are based ; and secondly, an opportunity to defend himself by cross-examining the witnesses and by examining himself or any other witness in support of his defence. As the rules of natural justice are not embodied rules, therefore, compliance is only needed to the extent to which such rules are incorporated in the Statutes. Thus, the second requirement of the provision does not travel beyond2 what is secondly stated. Accordingly, neither the giving of the second show-cause notice nor the supplying of the report of the Enquiry Officer is a requirement of the rules of natural justice. There can, however, be instances where the report of the Enquiry Officer may contain material extraneous to the charges or anything in addition to what is found in the original allegations against the workman or other substantial defect which could have prejudiced his case ; but for that redress is provided under section 25-A of the Industrial Relations Ordinance. This would, by no means, provide a ground for enlarging the scope of the provision so as to include both these requirements."
' While examining Punjab Road Transport Corporation v. Punjab Labour ' Appellate Tribunal and others it was said that the observation made as to the furnishing of a copy of the inquiry report and the second show-cause notice being consistent with the rules of natural justice was to be understood within the context of the peculiar facts of that case and did not lay down the broad principle that those formed part of the rules of natural justice or for that matter were to be spelt out from the provision under consideration. 13y concluding the case it was further observed that from the provision as worded neither the requirement of the second show-cause notice nor of supplying a copy of the report could be spelt out. The learned counsel for the petitioners has next contended that the suit was brought is not covered by section 42 of the Specific Relief Act, since the respondent did not approach the Court with clean hands, therefore, he could not be granted discretionary relief in equity. The reliance is on Muhammad Alam v. Pakistan wherein it is held that it is not a matter of absolute right to obtain a declaratory decree. It is discretionary with the Court to grant it or not and in every case the Court must exercise a sound judgment as to whether it is reasonable or not in the circumstances of the case to grant the relief prayed for.
11. It has been urged that the misconduct was established against the respondent through the inquiry and there was no lack of the application of mind in dismissing the respondent on the inquiry report as such the Court had no jurisdiction to look into the matter as to the guilt of the respondent. The Province of East Pakistan and others v. M. Amir Hussain has been referred in this behalf wherein it has been observed that in the matter of an order retiring a public servant for misconduct, to attract bar as to the jurisdiction of the Courts misconduct must be found, at the very least in logic. The next reliance is on Punjab Road Transport Board Lahare v. Fazal Elahi and another wherein it is held that the factual part of a domestic inquiry by the employer is open to scrutiny by the Labour Courts only to the limited extent indicated and if they at all undertake such a reappraisal they should be well advised to inform themselves of the rules, instructions and the working methods of the establishment in order to understand the full implications and the background in which such findings of fact have been recorded. To apply the abstract principles or standards of criminal prosecution or of a civil litigation to such proceedings in the absence of such knowledge would be doing violence to the whole infrastructure of the labour laws.
12. It has also been submitted that it was a proved case of dishonesty on the part of the respondent for which he was liable to be dismissed within the contemplation of misconduct under section 7 of the Road Transport Workers Ordinance, 1960 which Ordinance being special law had the virtue of over-riding the general law with its peculiarity as to the definition of worker.
13. The learned counsel has laid an emphasis on the point that the relation obtaining between the parties was that of Master and Servant under the general law as such the remedy lay in a suit for damages for the breach of contract if the dismissal was at all wrong after referring to section 21 of the Specific Relief Act. The support has been sought from Pakistan Refugee and Rehabilitation Finance Corporation Lahore and another v. Syed Raramat Hussain wherein it has been observed that it is not controverted' that the respondent is an employee of a Corporation and does not claim to himself the status of a "civil servant" and as such the relationship between him and the Corporation is to be regulated entirely by the law of Master and Servant and the constitutional3 4 5 6 safeguards available to the generality of "civil servants" will not avail him. Therefore, even if it be assumed for the sake of argument that the notice dated 3rd June, 1959 did not validly terminate his service, then his remedy is to sue for damages for wrongful dismissal and not for a declaration and injunction. Muhammad Shafi v. The Municipal Committee Murree wherein it has been held that since a Municipal servant holds office during pleasure a suit for wrongful dismissal by him is not competent and his remedy lies in appeal to the Commissioner and a petition in revision to the Government. R. Venkata Rao v. Secretary of State wherein it is observed that unless in special cases, where it is otherwise provided, the servants of the Crown bold their offices during the pleasure of the Crown not by virtue of any special prerogative of the Crown, but because such are the terms of their engagement, as is well understood throughout the public service. The words "subject to the rules" appearing in the section are not therefore, superfluous and ineffectual (96-B of Government of India Act (1919). The section contains a statutory and solemn assurance that the terms of office though at pleasure will not be subject to capricious and arbitrary action but will be regulated by rules. The provisions for appeal in the rules are made pursuant to the principle so laid down redress therefore, in such cases is not obtainable from the Courts by action. It is so even where there has been serious and complete failure to adhere to important and fundamental rules as for instance in the case of a person who has been dismissed from service without any investigation into the charge as per rule 14 under section 96-B. The remedy of the person aggrieved does not lie by a suit in Court but by way of an appeal of official kind.
14. The learned counsel has lastly contended that the instructions obtaining in this case are of administrative nature any violation of which gives no footing for a suit under section 42 of the Specific Relief Act. In support thereof R. T. H. Janjua v. National Shipping Corporation has been cited. In this decision it has been held that the constitutional safeguards available to the generality of civil servants against arbitrary dismissal or removal from service are not available to the servants of a registered company or a statutory Corporation. The general law of Master and Servant is applicable and the only remedy available to the aggrieved servant in such cases is to sue for damages for wrongful dismissal and not a writ of mandamus or certiorari.
15. The learned counsel for the respondent in reply to the arguments addressed by the learned counsel for the petitioner has submitted that in Road Transport cases the employer has to give a second show-cause notice and supply a copy of the inquiry report. In the present case the employer while dismissing the respondent had not applied his mind to the facts of the case, the order conveyed to the respondent was not bearing full particulars as to the inquiry and the employer before dismissal had not considered the previous record as to the conduct of the employee and the extenuating circumstances, as a whole the mind was not consciously applied to the inquiry report while passing the dismissal order. The respondent was not afforded an opportunity to adduce his defence. In the report the' respondent was found as guilty of negligence in the course of his duty, for which a lenient measure against the respondent had been suggested by the Inquiry Officer. The Deputy Traffic Manager (Petitioner No, 3) had no locus standi to give his opinion and it was not open for petitioner No, 2 as a matter of course to give an effect to the opinion of petitioner No,
3. The Rules are already on the record, the petitioners are estopped from taking another stand as to the law which was applicable towards the dismissal of the respondent.
The Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 only was applicable even on the assumption that the charges were proved that did not constitute misconduct within the meaning of the Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968. The order of dismissal as passed by the petitioners was mala fide. The suit as brought was competent and the relief prayed could in law be asked from a Civil Court and the Civil Court had the jurisdiction to grant the relief as prayed in the suit. The learned counsel for the respondent has lastly submitted that the revision petition as it stands is not competent in view of7 8 9 the provisions of section 115, C. P. C. In support of his submissions the learned counsel for the respondent has relied upon Muhammad Sharif etc. v. Chairman, Road Transport Corporation and another . Petitioner Muhammad Sharif was employed as a conductor and two other petitioners were employed as checkers by the Road Transport Corporation. They were removed from service but were later on re-instated. On being reinstated their period of absence from duty was treated as leave without pay. As to the validity of the order so passed against the petitioners it was maintained in the writ petition that the order passed lacked the support of any Rules or the sanction of law. It was held that the employees of Road Transport Corporation were workmen within the meaning of section 2 (h) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and it was further held, "The act of the Road Transport Board declaring the absence of the petitioners to be treated as leave without pay was without lawful authority in view of the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968. "As to the maintainability of the writ it was held that the Road Transport Corporation was a person within the meaning of Article 98 of the Constitution of Pakistan, 1962, so the servants of such a Corporation were entitled to the benefit of Article 98 of the Constitution of Pakistan, 1962. Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal, Lahore and 2 others . The respondent No, 3 in this case was a fitter in the Government Transport Service, Multan. He was charge-sheeted for riotous and disorderly behaviour under section 13 (3) (a) and
(h) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and after an inquiry was dismissed from service. It was held that the supply of a copy of the Inquiry Officer's report was not only necessary in order to satisfy the interest of natural justice but was essential in order to fulfil the requirements of clause (4) of the Standing Order 15 itself. The omission, therefore, amounted to a contravention and since the findings of the Inquiry Officer were to be used against the respondent it was necessary to give him an opportunity of showing cause against the said findings, on the wording of clause (4) of Standing Order 15. On the view of the matter the issuance of a second show-cause notice was necessary in that case. Punjab Road Transport Corporation v.
Punjab Labour Appellate Tribnnal, Lahore and others . This decision has ' already been mentioned above. Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal and 2 others . In this case respondent No, 3 being a conductor was charge-sheeted on certain charges. As a result of an inquiry held against him, he was dismissed by the District Manager from his service. He was reinstated by the West Pakistan Industrial Court and an appeal filed before the Labour Appellate Tribunal failed. The Appellate Tribunal while negating the contention held that it was the duty of the authority concerned to supply to the respondent a copy of the inquiry officer's report in order to enable him to meet the second show-cause notice and to prosecute the appeal or revision as the case might be. A writ petition was brought challenging the re-instatement of respondent No,
3. It was observed by the High Court "It may be mentioned that in this case the petitioner has himself taken up the position, in paragraph 6 of the writ petition, that the respondent No, 3 was dismissed from service by the District Manager on the basis of the enquiry report. Hence it was all the more necessary to have furnished a copy of the inquiry report to the respondent to enable him to show cause against the findings contained in it."
The findings arrived at by both the Courts were not interfered with M Is. International Laboratories Employees Union v. Sind Labour Appellate Tribunal . In this case under section 15 (4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 it was held that:- "No order of dismissal shall be made, is expressed in the negative, it must be construed as absolute and the dismissal cannot take place unless the further requirement is complied with, namely that the workman is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances appearing against him.'10 11 12 13 14 ' As for the inquiry reports it is not disputed that the workers were not supplied with the copies of the inquiry reports which was a circumstance against the workman that persuaded the second respondent to dismiss him. There was, therefore, no compliance of the absolute right of the workers of being heard to explain anything adverse against him in the inquiry reports." The impugned order was regarded as without lawful authority, of no legal effect and the petition was accepted. Syed Mir Mohammad v. N.-W. F. P. Government . This case cited by the learned counsel is not applicable to the case in hand because here it is a requirement in the case of the Government Servants under N.-W. F. P. Government Servants (Efficiency and Discipline) Rules, 1973, under rules 5 and 6 to furnish a copy of the inquiry report to the accused official to enable him to offer his explanation with regard to adverse finding if any recorded against him. Islamabad Club v. Mohammad Aslam and others . In this case respondent Muhammad Aslam who was a bar clerk in the Islamabad Club was dismissed, as a result of an inquiry against him wherein he was found guilty not only of the charge framed against him but also of certain more serious acts of misconduct not included in the original charge-sheet as framed. Muhammad Aslam respondent initially failed in the Labour' Court but was successful in the High Court on the ground that in the terms of clause (4) of Standing Order No, 15 appended to the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, he was not given notice of all the charges of misconduct found against him by the Inquiry Officer, and that no notice was .Given to him to show-cause against the proposed punishment of dismissal in the light of the findings recorded by the inquiry officer. The employer's appeal in the Supreme Court was dismissed while upholding the decision of the High Court. The learned Supreme Court observed that : "In the circumstances, it could not be said that the respondent had a reasonable opportunity of defending himself against the charges, which have formed the basis of disciplinary action against him, as no copy of the inquiry report was furnished to him and he was, therefore, not in a position to rebut the findings recorded against him on these matters. On this view of the matter, it could certainly be held, as the High Court had done, that the requirements of reasonable opportunity, as embodied in clause (4) of Standing Order No, 15, were not fulfilled in this case."
' The learned counsel for the respondent has also referred to certain decisions of the Labour Court on the question of the importance of the supply of a copy of an inquiry report and second show- cause notice as well as what constitutes misconduct and what does not.
15. The learned counsel for the petitioners in further reply has maintained that the maia fide had not been pleaded with particularity. The onus lay on the respondent to prove the same because there is presumption of regularity attached to all the official acts. The onus as to the mala fides had not been discharged, so the same point was not open to the respondent here. The learned counsel has in this behalf relied upon The Federation of Pakistan through Secretary Establishment Division Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others . As to the opportunity of affording the defence the learned counsel for the petitioners has submitted that the inquiry by itself was complete according to the Rules, the respondent had himself not chosen to produce evidence in his defence.
16. As to the contention of the learned counsel for the petitioners appertaining to the applicability of the Road Transport Workers Ordinance, 1961 read alongwith the Rules framed in 1962 as a Special law preferable over the general law as contained in the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 it is worth noting that the charge-sheet served upon the respondent positively mentioned that the res- pondent was being accused under section 13 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and the defence of the petitioners in the Civil Court as well as the Appellate Court was towards the justification of the action under the above-said Ordinance, therefore, they cannot be allowed for the first time to take up this point in this Court. Though there is no estoppel against a Statute yet in this case it has been15 16 17 admitted by the learned counsel that the Ordinance, 1968 happens to be a general law, so if it was chosen to take the action under the general law and not under the special or the specific law then the petitioners are to stick to it now for the purposes of this case. There are on the record Establishment Standing Instructions No, 7 Appendix 'B' (Exh. D-9) signed by Muhammad' Sharif, Chairman, West Pakistan Road Transport Board termed as the Procedure of awarding punishment to a workman affected by the Industrial Establishment Standing Orders stating : "The following employee of the West Pakistan Road Transport Board Services (including Body Building Workshops and Central Stores) fall within the....................... Scope of this class and shall be dealt with in accordance with the provisions of these instructions."
' The class of conductors is shown at Item No,
24. These instructions are based upon the above- said Ordinance embodying practically the main provision of the Ordinance as to the procedure in awarding punishment after detailing out the major offences as contemplated by Standing Orders.
These instructions can be said on the very face as an embodiment of the provisions of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
17. In respect of his contention that the law does not contemplate a second show-cause notice while imposing a penalty the reliance of the learned counsel for the petitioners on PLD 1981 SC 225 is well placed. In this decision it has been made clear that the furnishing of a copy of the inquiry report as well as the second show-cause notice emphasised by 1973 SCMR 455 is to be confined to the circumstances prevailing in that case. 1982 SCMR 126 has the similarity with that of 1973 SC MR 455. The matter would have ended here but there are other considerations which are going to be discussed later.
18. As to the address of the learned counsel for the petitioners that the relation obtaining between the parties was that of a master and servant under the general law, as such the remedy lay in a suit for damages and that the suit was brought was not competent in view of sections 42 and 21 of the Specific Relief Act, the arguments advanced by the learned counsel and the decisions produced by him in support of his arguments have their weight but in this case the matter goes a little further. The respondent was an employee of Government Transport Service, Lyallpur, a corporation apparently having been brought into existence under the Motor Vehicles Law.
Generally the relation of the employer and an employee within such a corporation happens to be a contractual one in the absence of any statui tory rules or Regulations governing the same. The principle of master and servant regulates the contract. Now the Industrial and Commercial Employment (Standing Orders) has \ been legislated with a view to regulating Industrial and Commercial Employment securing certain protections to the workers and employers in Pakistan and one of the objects of it is the welfare of a worker. The Ordinance places restrictions on the termination of service by enacting clause (5) to section 13 that no order of dismissal shall be made unless. This piece of legislation is a legal requirement brought into existence independent of a contract whatsoever and as a term and condition in addition to the contract of service, as such it is to be regulated in accordance with the provisions of the Ordinance, notwithstanding the terms and conditions of the contract agreed upon by the employer and the employee, therefore, it is open to the Civil Court to examine a case that whether a particular service has been terminated in accordance with this piece of legislation and to declare the termination of service as illegal if it is not in accordance with the provisions of the Ordinance. In the absence of a Special Court or a Tribunal pointed out by the Ordinance itself the suit was brought cannot be regarded as incompetent from this point of view. The suit virtually though brought as declaratory one sought the enforcement of the provisions of the above-said Ordinance, so .The suit was brought is competent and maintainable under section 42 of the Special Relief Act towards the maintainability of which section 21 of the Specific Relief Act is no bar because the provisions of the Ordinance are meant to be enforced, if the service of a particular person has not been terminated in accordance with the provisions of the said Ordinance then a worker continues to be in service because the provision as to the termination of service is towards the negative and an absolute one, therefore, the issues as to the maintainability of the suit and the juristion of the Civil Court cannot be decided in favour of the petitioners. For further examination of the case it is worthwhile to reproduce the provision of the Ordinance as to the termination of service under section 13 sub-clauses (4) and
(6) of the schedule of the Ordinance :- "(4) Nor order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him. The approval of the Manager of the establishment or where there is no manager, of the employer is required in every case of dismissal and, when circumstances appear to warrant it the manager or the employer may institute independent inquiries before dealing with charges against a workman."
(5)
(6) in awarding punishment under this Standing Order, the manager shall take into account the gravity of the misconduct, the previous record, if any, of the workmen and any other extenuating or aggravating cicumstances that may exist. A copy of the order passed by the manager shall be supplied to the workman concerned."
19. As is obvious from the inquiry report the respondent under the charges was found guilty of negligence only and not of dishonesty. The learned coansel for the respondent is right in pointing out that petitioner No, 4 had no locus standi to make a recommendation as to the guilt of the respondent to petitioner No,
2. The petitioner No, 2 without caring for the finding of the Inquiry Officer as to the guilt dismissed the respondent from service observing that, that was a proved case of dishonesty and thus he committed an illegality. There was no question before petitioner No, 2 of approving the dismissal of the respondent on the finding of dishonesty. As it has been said above the respondent had been found guilty of negligence only and a lenient measure had been suggested by the Inquiry Officer, though the employer was not bound by the suggestion as to leniency yet it is clear that the employer could not conceive himself as to the guilt of the respondent on a charge about which he had not been found as guilty without himself inquiring into it. If he was so minded he could institute an independent inquiry before dealing with the case against the respondent as the provision is quite clear upon this that when circumstances appear to warrant the manager or the employer may institute independent enquiries before dealing with charges against a workman. In the circumstances of this case that could only be done after affording an opportunity of hearing the respondent because the respondent had not been found as guilty of dishonesty by the Inquiry Officer and that opportunity could not have been classed as second show-cause notice. It was to be afforded only in view of the assessment by petitioner No, 2 of the guilt of the respondent as to dishonesty which assessment could only be made within the scope of an enquiry petitioner No, 2 was not sitting in an appeal, on the finding returned by the Inquiry Officer.
20. There is another flaw in the order so passed by petitioner No, and that is that there is nothing to indicate within the order itself that petitioner No, 2 while awarding punishment under the said Standing Order has taken into account the previous record of the respondent and any other extenuating or aggravating circumstances which consideration is mandatory according to the provision of the abovesaid Ordinance.
21. In view of the above discussions this revision petition is dismissed and the decree passed by the lower Appellate Court is sustained though on some different reasons. As certain legal questions were involved, therefore, the parties are left to bear their own costs. Since the success of the respondent is on a technical ground, therefore, he shall be treated as entitled to the extent of only 1/4th of the remunerations appertaining to the period he remains out of service.
1973 SCMR 455 PLD 1981 SC 225 PLD 1965 (W.P.) Kar. 100 PLD 1963 SC 185 PLD 1976 Lab, 1414 P L Q 1966 (W.P.) Lab. 442 PLD 1953 Lah. 163 AIR 1937 P C 31 PLD 1974 SC 146 1976 PLC 744 PLD 1972 Lah. 699 1973 SCMR 455 PLD 1976 Lah. 209 PLD 1976 Kar. 292 PLD 1981 SC 176 1982 SCMR 126 PLD 1974 SC 151