1981 PLP 423 (PLC)

Petitioner Rana 'Mohammad Siddique‑has submitted this application under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 against respondent Pakistan Steel Mills Corporation Limited, Bin Qasim, Karachi praying for a declaration that the impugned order cat termination of his services dated 4th March, 1980 is without reasonable excuse', and illegal and for his re‑instatement in service, with full back benefit.

2. The petitioner was appointed a : Assistant Executive Engineer (Mechanical) on contract basis initially for a period of four years from the date of joining the Corporation, under a letter of appointment dated 20th February, 1976, the period was however, extendable by mutual consent. 3: It is the case of the petitioner that he was a trained engineer and had about ten years experience in foundry (both ferrous and non‑ferrous) in the Pakistan Railways, prior to his joining the Corporation. He earned good reports from his superiors so much so that he was recommended for training abroad in foundries of foreign Steel Mills, by the Deputy Chief Engineer, his Group Head and also by Chief Engineer, Repair Shop Complex, as being a most deserving candidate for training abroad in foundry with his past experience and that he would prove to be a potential asset to the complex and to the Steel Mill at large. On 27th October 1979, the Deputy Chief Engineer, and Complex, Head, recommended extension of the applicant's contract for another period of two years for the present. Petitioner further stated that he used to bring to the notice of the Incharge the irregularities, malpractices and poor quality of work done by the Contractors, resulting in loss to the Corporation and he submitted written complaints against them, but no action was taken against the Con tractors. Copies of such complaints against the contractors are Annexure D/1 to D/8. The petitioner stated that this annoyed his Incharge who gave him adverse remarks in the Annual Confidential Report for the year, 1979, in order to create a ground for termination of his services. He fur ther stated that although some other Assistant Executive Engineers appointed on contract basis like him had earned adverse remarks, he alone was chosen for victimisation. Therefore he received memo dated 4th March 1980 from the General Manager (A & P), informing him that on the ex piry of his contract, he was relieved of his duties with the Corporation with effect from 4th March 1980. He made a representation to the Director Project, that in view of his specialised experience in the field of foundry, and satisfactory service during the entire period of four years, to the satis faction of his superiors, there was no justification and/or excuse for not continuing his service beyond the expiry of his contract period. He also addressed similar representations to the Chairman of the Corporation the last of which was dated 26th August 1980 in which he specifically made allegations against Mr. Rehmatullah Khan's partiality to the contractor and ill‑will towards him. He received no reply from the Chairman, but merely an intimation on behalf of Manager, Personnel, stating that his appeals to the Chairman have been rejected. He approached the Com mission on 13th October 1980.

4. The respondent submitted a written statement in which it pleaded that the petitioner had no legal right to extension of his contract which was for a fixed term of four years and that on the expiry of the said term, his employment automatically came to an end, hence the applicant had no right guaranteed to him under any law The respondent also denied other allegation contained in the petition Finally it was pleaded that the petition was barred by time.

5. I have heard Ch. Rashid Ahmed, Advocate for the petitioner and Mr. Kamal Mansur Alam, Advocate for the respondent. I will deal with the preliminary point of limitation raised by Mr. Kamal Mansur Alam, learned counsel for the respondent. It is contended by him that under the regulations framed by the Commission on 27th January, 1979, the petition should have been filed within two months of the arising of the cause of action. The cause of action arose on 4th March, 1980. The date of the impugned order, but the petition was filed on 18th October, 1980. However, the learned counsel failed to notice that the second proviso to the Regulation 2 of the said directions confers a discretion on the Specified Authority to condone delay on "good cause shown". The petitioner on receiving the impugned order on 5th March, 1980 made, firstly, representation to the Directors, Project, and on its rejection, he submitted an appeal to the Chairman on 26th May, 19$

0. As he received no reply, he submitted further appeal on 26th August, 1980, to which he received a reply on 15th September 1980. This shows that the petitioner was pursuing his grievance departmentally before finally approaching the Commission for relief under Essential Services (Maintenance) Act, 1952, Accordingly, I would condone the delay.

6. On merits, it is not disputed that the provisions of the Essential Services (Maintenance) Act, 1952 have been made applicable by the Federal Government to the employment of the respondent‑Corporation by notification published in the official Gazette, under section 3 (1) of the said Act. Under section 5 of the Act, the employer of a person engaged in such employment, who without reasonable excuse, dis continues the employment of such person, is guilty of an offence under the Act. The submission of Ch. Rashid Ahmad is that the respondent had not shown any justification or excuse, what to say of reasonable excuse, for discontinuing the employment of the petitioner.

7. Mr. Kamal Mansur Alam submitted that section 5 of the said Act was not applicable, as the Corporation had not "discontinued" or terminated the employment of the petitioner, but had only declined to re‑employ him on the expiry of the initial period of four years of his appointment. In fact, as will appear from circular dated 12th October 1979, filed as Annexure C, and Affidavit in evidence of the applicant, it has been practice of the Corporation to review each case for extension on the expire of the contract period of an employee. I have considered this submission but to my opinion, it has no force.

8. When the provisions of the Pakistan Essential Services (Mainte nance) Act, 1952 have been made applicable by the Federal Government to any employment declared by it to be an Essential Service, for a temporary period of six months, the effect is that the terms and con ditions stipulated and contained in the contract of employment stand modified. Thus, an employee cannot refuse to continue to work or leave his employment or without reasonable excuse or abandon his employment under section 5 of the Act. Similarly, the employer of such employment cannot discontinue the employment without reasonable excuse, as other wise, he is guilty of an offence under section 5 of the Act. The Prohibi tion to discontinue the employment without reasonable excuse, continues so long as the notification remains in force which extends the provisions of the Essential Services (Maintenance) Act, 1952 to the said employment. During this period, neither the employer nor an employee can place reliance on any express or implied term of the contract of employment to defeat the mandatory provisions of the said Act. In every case there has to be reasonable excuse for discontinuing the employment or termi nating it.

9. However, Explanation 2 introduces a qualification in favour of an employee who may terminate his contract by giving notice stipulated in .his contract of employment, if the employer gives his previous consent. In that case, he need not show any reasonable excuse. No such qualified right however, has been conferred on the employer. In the instant case, notwithstanding, the expiry of the contract period, the respondent could not discontinue the employment of the petitioner, except for reasonable excuse. It is not the case of the respondent either in correspondence or in the written statement that there was any excuse for discontinuing the employment of the petitioner, such as alleged adverse remarks o unsatisfactory performance.

10. For the foregoing reasons, I declare that the impugned order dated 4th March 1980, is illegal as being contrary to section 5 (1) of the Essential Services (Maintenance) Act, 1952 and is accordingly set aside. The petitioner shall be reinstated in service with effect from 4th March, 1980. The question of pay for the period the applicant has remained out of service, shall be decided according to leave rules of the Corporation. Petition accepted.