1. This application has been filed under section 6 of the Pakistan Essential Services (Maintenance)
2. Act, 1952. Sultan Ahmad Geelani, the applicant in this case, was employed with the Karachi Electric Supply Corporation Limited, the respondent, as Data Processing Manager. The respondent, being an organization dealing with the transmission, distribution and supply of electricity, is covered by the Federal Government's Notification in the official Gazette, dated 26th August, 1976, declaring all classes of employment such as in the respondent-Company to be the employments or class of employ--ments to which the Essential Services Act, applies, which gives power to this authority to regulate conditions of service of the applicant in the instant case.
3. The case of the applicant is, that on 27th April, 1976 the respondent, with--out assigning any reasons, terminated his services. A copy of the letter receiv--ed by the applicant in this behalf is Annexure A-1, filed alongwith the applica--tion. The main contention of Mr. Sabihuddin Ahmed, the learned counsel for the applicant has been, that the respondent could not terminate the aplicant's employment without a reasonable excuse, as envisaged by section 5 of the Essential Services Act, and hence, the action taken by the respondent is illegal and opposed to the principles of natural justice, and therefore, liable to be set aside.
4. Although this application has been opposed by the respondent in its written statement on various grounds, but the only ground which has now been pressed before me by Mr. Mohammad Shafique, the learned counsel for the respondent, is, that there was a contract of employment between the parties, clause 9 whereof provides :- "Notice of termination.-Your services are liable to be term--inated on three (3) months' notice in writing, or payment of three (3) months' salary in lieu thereof, on either side."
5. Mr. Mohammad Shafique has therefore, contended that as the said contract fully empowered employer to terminate the applicant's services only by giving three months' notice, it in itself constituted a sufficient reasonable excuse for the respondent to terminate the applicant's employment.
6. Having given the matter my most serious consideration, I am of the view that the action taken by the respondent was highly improper, because while terminating the services of the applicant, it failed to give any cogent reasons therefore. Although, the test of reasonable excuse is provided by section 5 of the Essential Services Act, which only describes offences, but this in my opinion, makes it sufficiently clear, that such an action, if taken by an employer, meets with disapproval under the Act. There being no other criterion laid for an authority exercising powers under section 6 of the said Act, to judge the reasonableness or unreasonableness of the employer's action, the same test as laid down in section 5 must therefore apply in that case also. Now, section 5 create reciprocal obligations both for the employer as well as the employee, and according to subsection (1) thereof, clause (b), no employee without reasonable excuse can abandon any employment or absent himself there from. Likewise, under clause (i) of the same subsection, no employer can discontinue the employment of any person under similar circumstances. Explanation 2 to section 5, subsection (1), which I think is very material in this respect, says:- Explanation 2.-A person abandons his employment within the meaning of clause (6) who, notwithstanding that it is an express or implied term of his contract of employment that he may terminate his employment on giving notice to his employer of his intention to do so terminates his employment without the previous consent of his employer."
7. Although, section 5 does not provide for such an explanation in regard to an employer terminating the services of an employee, but nevertheless, the Explanation clearly shows that the obligation on the part of the employer not to discontinue the employment of any person without assigning sufficient reasons therefore is absolute, and no term to the contrary contained in a contract of service of an employee, can absolve the employer from this obligation.
8. Mr. Mohammad Shafique has also drawn my attention to para. 4 of the written statement which shows that the action was taken against the applicant due to his inefficiency, incompetence and incapability. If that was the case, I think, the applicant was at least entitled to a show-cause notice and a proper enquiry, into the charges. The stand taken by the respondent at this belated stage, therefore, can hardly lend any support to its case.
9. For the forgoing reasons, I recommend that the applicant be re-instated forthwith on the same terms as were applicable to him before. That will entitle him to the arrears of pay and other allowances to which he was entitled according to the normal practice, for the intervening period.