DECISION This is an appeal against an award of the learned Chairman of the First Sind Labour Court, Karachi, dated October 10, 1972, whereby the learned Court dismissed the application of the appellant for re-instatement and other reliefs under section 34 of the Industrial Relations Ordinance, 1969, (hereinafter called the Ordinance). The appellant was employed as a Junior Clerk since March, 1961 in Pakistan International Airlines Corporation. He proceeded to London on leave, which was extended upto 5th January 1971. He reported for duty much after the expiry of leave, i.e. on 25th January, 1971. The appellant was charge-sheeted for misconduct on various counts.
2. The appellant urged in his application under section 34 of the Ordinance that no face-to-face enquiry was held against him. He had, however, given the reasons why he could not report for duty immediately on expiry of leave. The dismissal order had been given retrospective effect, which was bad in law. He was not supplied with a copy of the Enquiry Officer's Report. The absence of the Enquiry Report accordingly affected his representation in appeal. He was not given an opportunity to be heard in appeal. On these grounds, the appellant pray ed that the order of his dismissal may be set aside and he may be re-instated with full back benefits.
3. The learned Court came to the conclusion that the enquiry was fair and that it did not violate against the principle of natural justice. He, therefore, maintained the order of dismissal of the appellant.
4. Mr. Abdul Hafiz for the respondent raised a preliminary objection that the application under section 34 of the Ordinance was not maintainable as P.I.A, was an employment which was covered by Pakistan Essential Services (Maintenance) Act, 1952 (hereinafter called the Act of 1952). In this connection, he relied on section 7-A of the Act, which reads as under; "The provisions of this Act shall have effect, notwithstanding anything to the contrary contained in the Trade Unions Act, 1926 or the Industrial Dispute Ordinance, 1959, or any other law."
5. The admitted position is that P. I. A. is an employment which is covered by the Act of 1952. In this connection, Mr. Abdul Hafiz relied on a . decision of the Industrial Appellate Tribunal of West Pakistan, in the case of A the representatives, WAP DA Workers'
Union and others (1). In that case it was held by the Tribunal that the jurisdiction of Industrial Court was barred in respect of employments covered by section 3. The circumstances of the case relied upon were quite different from the one before me. In the reported case, the Union had gone on strike and thereafter made certain demands. The demands are not specifically given in the reported case, but it appears to me that they related to wages and other conditions of service and, therefore, the Tribunal came to the conclusion that the jurisdiction of the Labour Court was barred under section 7-A of the Act. Certain Rules regulating the conditions of service of persons were framed by the Central Government under section 6 of the Act. If Rules already existed regarding the conditions of service of persons in WAPDA, the Industrial Court could not adjudicate in respect of matters which were covered by the Rules framed under section 6 of the Act. Any adjudication by the Labour Court might be in conflict with the Rules framed by the Central Government relating to the conditions of service. In that view of the matter, it was rightly held that the jurisdiction of the Labour Court was barred under section 7-A of the Act.
6. In the present case, however, Mr. Abdul Hafiz was unable to point out any provision of Rules which might be said to be in conflict with the provision of section 34 of the Ordinance. Under section 7A of the Act, if there is a conflict with the provisions of the Act and anything contained in the Trade Unions Act, 1926, or the Industrial Disputes Ordinance, 1959, or any other law, the provision of the Act will prevail. Mr. Abdul Hafiz was unable to point out any provision of the Act of 1952 to show that it was in conflict with section 34 of the Ordinance.
7. In the second place, Mr. Hafiz contended that the Court had no jurisdiction as P. I.
A. had reasonable excuse within the meaning of section 5 of the Act to terminate the services of the appellant. He contended that the appellant had admittedly overstayed his sanctioned leave, and that he had disobeyed the orders of bis superiors within the meaning of section 5 of the Act.
The appellant was, therefore, guilty of an offence under the Act. If the appellant was guilty of an offence under the Act, the Labour Court had no jurisdiction to go into that question. There is not much force in this contention. Under section 34 of the Ordinance, the appellant's offence, if any, under the Act is not being taken into consideration. All that the Labour Court had to see was as to whether the appellant's services were terminated illegally or otherwise. I would hold that "The Pakistan Essential Services (Maintenance) Act, 1952", did not debar the jurisdiction of the Court to consider the legality of the order of dismissal of the appellant.
8. Mr. Wasi Ahmed, the leamed Representative for the appellant raised the following points before me: (1) That the Enquiry Report was not filed alongwith the Enquiry Papers in the Labour Court; (2) That a copy of the Enquiry Report was not given to the appellant to enable him to successfully prosecute his appeal before the higher authority; (3) That no personal hearing was given to the appellant to file appeal before the appellate Authority; (4) That reasonable time was not given to the appellant to file his reply; and (5) That the appellant was not given an opportunity to lead his defence witnesses. On these grounds, Mr. Wasi Ahmed urged that the order of dismissal of the appellant was bad in law. There is much force in the contention of Mr. Wasi Ahmed. In this connection, it is not necessary to say much in view of the decision of Nasim Hassan Shah, J , in the case of Punjab Road Transport Corpoiation (1). Nasim Hassan Shah, J., in a very elaborate order had dealt with many of the points raised by Mr. Wasi Ahmed before me. It is not necessary to reproduce the reasons given by Nasim Hassan Shah, J., in that case. I have come to the conclusion that the enquiry was bad inasmuch as the Enquiry Officer did not give his Enquiry Report. I have come to this conclusion as had the Enquiry Officer given his Report, the same would have been filed alongwith other Enquiry Papers before the learned Labour Court. I have also come to the conclusion that the appellant was prejudiced because of want of non-supply of the Enquiry Officer's Report, if any. The appellant should have been given an opportunity to be heard personally, if he so desired, by the appellant Authority. In case, the Enquiry Officer's Report was against the appellant, he should have been given a show- cause notice as to why he should not be dismissed from service.
9. I would, for the reasons given above, set aside the award of the learned Court. The appellant be re-instated. He would not be entitled to any back benefits, as the respondent had every right to charge-sheet him for the alleged misconduct that the appellant had committed. In case, the respondent decides not to charge-sheet the appellant, he would be entitled to back benefits. The respondent must charge- sheet the appellant within two weeks, if it so desires. I would award Rs. 200 (Rupees two hundred only)* D as costs to the appellant to be paid within two weeks. The appellant to bei served the charge-sheet through Registered Post on the address given in hisl Memo of Appeal in this Court. In case the appellant has changed his address, he is to supply the same within 3 days to the respondent.