' This order will dispose of main petition filed by petitioner Muhammad Moosa Soomro son of Muhammad Saleh Soormo undet section 22-A(8)(g) read with section 15 of the I.R.O., 1969 alleging therein that he was appointed as Senior Clerk with the respondent-Corporation on 9-7-1973 and he has filed his appointment letter dated 9-7-1973 as Annex A to the main petition. It is further stated by the petitioner that he was promoted in March, 1977, as a result of good and satisfactory performance of his duties. It is further submitted by the petitioner that he was, thereafter, working on the same post without any break. It was stated by the petitioner that respondents had promulgated regulations in terms of medical facilities available to the petitioner in 1980 wherein it was mentioned that every employee and his family shall be entitled to free charge medical treatment by Medical Officer in the dispensary. It was also mentioned that medicines available in the dispensary shall be prescribed. However, the Medical Officer may prescribe the medicine not available in the dispensary if he deems it necessary for the recovery of the patient (clause 4, sub- clause (1) of the Regulation), and cost of such medicine shall be reimbursed to the employee. It was also contended that under the aforesaid regulation, the family of the petitioner was also entitled for such treatment. The wife of the petitioner was also entitled to maternity treatment in terms of pre-natal and postnatal treatment. The petitioner has submitted that he was served with the show-cause notice dated 14-10-1982, whereby an explanation was sought from the petitioner as to why action should not be taken against him under Regulation 59, sub-Regulation (5) of Regulations, 1965 and very short time was given to reply of show-cause notice. The petitioner has enclosed copy of the show-cause notice with the petition as marked Annex 'B' and he has also enclosed the photocopy of reply to show-cause notice with the petition.
2. It is further submitted that the medicines used by the petitioner were prescribed by the Medical Officer, as such no offence had ever been committed by the petitioner and Regulation 50 sub- regulation (5) does not attract to the petitioner case. He has further submitted that number of other employees spent much more amount on the medical treatment than what petitioner spent but no action was taken against them but the petitioner was just victimised on account of his healthy activities in the PNSC staff union, as the petitioner had been the member of the said CBA and the Management wanted the petitioner to disassociate with the CBA which was refused by the petitioner and the petitioner has submitted list of 45 other employees who spent lacs of rupees on medical treatment which is enclosed with the petitioner as Annex. 'C'. It is further pointed out that as the petitioner refused to giveup the union activities, therefore, the respondents with mala fide intention and by way of unfair labour practice removed the petitioner from service on 8-11-1982.
The petitioner has filed copy of the termination order with the main petition as Annex. 'D'. He has also submitted that he is jobless since 8-11-1982 and is not gainfully employed anywhere, though the petitioner has to maintain a big family and, therefore, the petitioner has borrowed lacs of rupees form his relatives which he has to repay them and no enquiry had been conducted by the respondents with mala fide intention which is a mandatory provision of Standing Orders Ordinance, 1968.
3. It was, therefore, prayed by the petitioner that he may be reinstated in the service with effect from 8-11-1982, with all the back-benefits in the interest of justice.
4. On the other hand the respondents, through their Company Secretary filed counter-affidavit and challenged the petition on facts and law. The legal objection raised by the respondents are that the case is not maintainable at law, which is time-barred, the petition suffers from laches and acquiescence.
5. The respondents have denied the contention of the petitioner as mentioned in application and contended that application is misleading and that it is clear that prior to introduction of revised medical policy from 1-11-1982 the employees of respondent No,1 were authorised to consult Medical Officers appointed by the respondent No,1 and to acquire medicines prescribed by them from any chemist enlisted on the panel of respondent No,1, on submission of the prescription issued by the Medical Officers.
6. The respondents have further contended that the petitioner was found to be abusing such medical facilities and it was on such account that he was dismissed from service. It has further been denied by the respondents that petitioner was victimized on account of his activities in the PNSC Staff Union or that he was asked to disassociate himself from CBA by the respondent No,1, and has submitted that true facts are that petitioner was found to be abusing/using the medical facilities and was, therefore, served with a 'warning on 26-9-1982, to desist from such action, however, the petitioner was found to be continuing abuse of medical facilities and was, therefore, served with a show-cause notice dated 14-10-1982. Subsequently, after carefully considering his reply which was found to be unsatisfactory, the petitioner was dismissed from service by order dated 8-11-182, in exercise of the power conferred under subsection (2) of section 21 of the PNSC Ordinance, 1979 read with Regulation 59(5) of NSC (Service) Regulations, 1965. It is also stated in the counter-affidavit by the respondents, that in addition to the petitioner some other persons who were found guilty of abusing medical facilities were so removed. The respondents in their counter- affidavit have also stated that the petition is liable to be dismissed in limine and cost be awarded to the respondents.
7. As the respondents have failed to file written reply/comments and instead filed counter-affidavit as against the petition, which under the settled principle of law the point of determination or issues can only be settled out of the pleadings i,e,, plaint and written. Statement i,e, petition and comments so it is difficult to settle the issue in the absence of reply statement which was supposed to be filed, by the respondents as per directions of this Bench of Commission, yet treating the counter-affidavit as comments/reply statement, in the interest of justice, I settled the following points for determination:--
(i) Whether the petition is not maintainable under and on facts?
(ii) Whether the petitioner was dismissed by the respondents illegally and without due course of law?
(iii) Whether grievance can be redressed when petitioner is reinstated in service?
8. Both the parties were directed to lead the evidence. The petitioner filed his affidavit-in-evidence and the affidavit-in-evidence of one independent witness and both were cross-examined by the learned counsel of the respondent but respondents could not filed affidavit-in-evidence nor they sought time for this purpose, without giving any reason.
9. The petitioner was cross-examined by the Advocate for respondents who put all sort of questions which were properly replied by the petitioner. In his cross-examination the petitioner denied the excess medical billing and further he deposed that he had filed a suit in the Court of Senior Civil Judge, South and denied that the plaint was rejected but application under Order 7, Rule 11, C.P.C. Which was allowed and consequently the plaint was rejected by Hon'ble High Court then Hon'ble Supreme Court which also was dismissed for non-prosecution. It is further deposed by the petitioner that the petitioner was not office-bearer of the union but he was active member of the union and the subscription of the union found was deducted from his salary and he was removed due to his underground activities which implicitly/impliedly mean trade union activities.
' The petitioner stood firmly all the allegations levelled by him in the petition and denied the suggestion being false. The petitioner has also denied that the Hon'ble Supreme Court gave decision that relationship between respondents and the petitioner was of master and servant. He has further deposed that the Hon'ble Supreme Court has not given any decision but dismissed petition for non-prosecution. The petitioner has denied that he had drawn excess bills and that he was rightly and legally removed from the service. In support of his contention the petitioner also produced one independent witness Haji Riaz Ahmed who was also cross-examined by the learned Advocate for the respondents and who deposed that it is incorrect to suggest that the petitioner was not active member of the union. He has deposed that he has not filed the affidavit-in- evidence at the instance of the petitioner as he was also removed from the employment like petitioner.
10. No evidence was led by the respondents in rebuttal of the averments of the petitioner and evidence by the petitioner, therefore, all the contention and allegation of the petitioner has gone unchallenged.
11. It is well-settled law that for establishing the fact, alleged in the case, or for proving the same the party which is contending or alleging must prove the contention through some evidence by way of documentary or orally and should not try to get benefit of the weakness of the opposite party if there is any such weakness and as such the burden of proving the contention raised by the respondents lies on the shoulder of the respondents by leading their evidence but in the instant case the respondents have chosen to remain silent and not to lead any evidence though they have only stated in their affidavit filed by the Company Secretary at the initial stage that the allegation levelled by the petitioner are false.
12. In the cross-examination the learned counsel for the respondents has suggested some questions regarding the litigation in the Civil Court and the Hon'ble High Court and the Hon'ble Supreme Court but neither the copy of that proceedings or its order has either filed with the counter-affidavit or produced at the time of argument, therefore, need not to discuss on that point.
On the other hand the respondents did not care to tile comments on the petition which reilects upon the conduct of the respondents to contest the case in this way.
13. The petitioner was served with show-cause notice on 14-10-1982 and the said show-cause notice was issued by General Manager Administration for suggested action under Regulation 59 sub-rule (5) of Regulations, 1965, only 72 hours time was given to reply to show-cause notice and the show-cause notice was issued without the prior approval of the Competent Authority. Notice in such circumstances was held void and subsequent proceedings declared without jurisdiction as held in PLD 1966 SC 253, PLD 1996 Quetta 31, 1994 SCMR 2232, PLD 1958 SC 104, AIR 1942 FC 3, PLD 1973 Lahore 188, PLD 1974 SC 139, 1971 Law Notes Lahore 395.
14. So far as the issue of limitation is concerned, it is an admitted position that the petitioner was busy in bona fide litigation in the same matter in the Courts which have no jurisdiction to deal with the case of unfair labour practice and, therefore, benefit of section 14 of Limitation Act shall be given to the petitioner. Even otherwise no limitation runs against the void order. Reliance is placed on PLD 1958 SC (Pak.) 104 and 1997 MLD 2473.
15. The instant case is based on the allegation of unfair labour practice falling within the ambit of section 15 of the I.R.O., 1969 for which the NIRC had exclusive jurisdiction as held in PLD 1988 SC 53, 1999 PLC 57, PLD 1976 Lahore 611, 1993. SCMR 1837 and 1999 PLC 187. However, as regards the jurisdiction of NIRC after insertion of section 2-A, in the Service Tribunals Act, 1973 the Larger Bench of NIRC in the case of Iftikhar Haider Jhatla v. Pakistan Telecommunication Co. Ltd. Has held that section 2-A is only applicable to employees of Government Controlled Corporations with regards to the terms and conditions of service. The NIRC, therefore, continues to exercise its jurisdiction under Industrial Relations Ordinance, 1969 if allegation of unfair labour practice has been alleged.
Since the allegations of unfair labour practice have been alleged, in the present petition, this Bench of Commission as held in the aforesaid case, has the jurisdiction and the objection of jurisdiction is overruled.
16. The contention of the respondents for spending more amount on medical treatment, which remained unproved, appears otherwise to be frivolous and without force because the medical treatment is taken on the prescription of the doctor and the respondents have failed to mention what action has been taken against the doctor who had prescribed the medicine as for excess medical treatment the responsibility lies on the shoulders of the doctor and not on the poor workman, and if the action worst to worst can be taken against the workmen the excess amount, if any, and permitted by rules can be deducted from the wages of the workmen but not a major penalty of dismissal can be imposed and most particularly where neither a proper show-cause notice was issued nor inquiry was conducted and no opportunity of personal hearing was given which all the contrary to the principle of natural justice. The reliance is placed on 1994 SCMR 2232, PLD 1964 SC 64, 1971 CLC 201, 1997 CLC 1475, 1993 SCMR 455, PLD 1966 SC 536 and PLD 1979 Karachi 257 and PLD 1965 SC 90.
17. As regards the theory of master and servant the respondents have not been able to produce any evidence in support of this connection. Neither there are any statutory Rules in PNSC which restrain the union activities. Reliance is placed on PLD 1977 Lahore 234 and 1994 SCMR 2232, Halsburys Laws of England Vol. 25 P-448 para 872 and in the same Vol. Of Halsburys para 1991 pages 519 para 25.
18. The upshot of the above discussion is that the issue No,1 is decided in negative and Issues Nos.2 and 3 are decided in favour of petitioner as the grievance of the petitioner shall only be redressed if the petitioner is reinstated in service from the date of dismissal with full back-benefits.
' Announced in open Court.
' Given under my hand and seal of the Commission this 6th day of November, 1999.