1978 PLP 483 (PLC)

(a) Essential Services (Maintenance) Act (LIII of 1952)‑ ‑‑ S. 6‑Specified authority‑Competent not only to exercise powers of legislative nature but can deal with individual grievances‑Framing of Regulations ‑Not a condition precedent for exercise of such jurisdic tion. (b) Went Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968) ‑‑‑‑ S. 15 read with Essential Services (Maintenance) Act (Bill of 1952), S. 5‑Termination of service for misconduct‑Procedure of depart mental enquiry and show‑cause notice‑Mandatory‑Provisions of S. 5 of Essential Services (Maintenance) Act, 1952 though create penalty for persons abandoning employment or absenting from work, it does not authorise employer to terminate service without proper show‑cause notice or enquiry‑No regulation separately prescribed by Specified Authority under Essential Services (Maintenance) Act, 1952‑Provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, held, applicable to employees covered by Essential Services (Maintenance) Act, 1952. This petition which is under section 6 of the Essential Services Act bas been filed by petitioner Mohammad Irshad against the Rawalpindi Electric Power Company Limited, Rawalpindi. Briefly stated, the facts of the case, are that the petitioner was employed as a coolie with the respondent Company. He went to his village as according to him his house got damaged. Thereafter the petitioner fell sick and could not report back for duty. The Company sent him a notice dated 15th October, 1976, asking him to resume work within three days from the receipt of the said notice but despite that the petitioner failed to return. A photostat copy of this letter (marked as No. IV) has been produced by the petitioner in evidence. The Company finally issued notices through press on 28‑10‑1976 and 30‑1a‑1976 advising the petitioner to report back before 8‑11‑1976 and explain reasons for his unauthorised absence. In response to this the petitioner reported for duty on 6‑11‑1976 and produced two medical certificates from a private doctor (marked as Nos. V and VI) alongwith his explanation (marked as No. VII). All the three documents however were not found satisfactory by the respondent with the result that the services of the petitioner were terminated with effect from 9‑11‑1976.

2. The respondent‑Company in its written statement had raised certain preliminary objections with regard to the jurisdiction of this authority. The first one, which was the only objection pressed at the preliminary stage was that The respondent‑Company was covered by the Economic Reforms Order, 1972, which gave unfettered powers to the Managing Director to terminate the services of any person, and as, such the action taken against the petitioner being at the Instance of the Managing Director was not questionable before this authority. The said objection was however disposed of in favour of the petitioner on 28th November, 1977 by a separate Order.

3. The next objection, which is also in regard to the jurisdiction, seems to have been based on a judgment of the Lahore High Court I. C. No. 45/76 in which it was held that an authority specified by the Central Government under section 6 of the Essential Services Act could only exercise powers of legislative nature. This point was once again thrashed out by a Full Bench of this Commission comprising of the Chairman and five other members including myself, in Case No. 22(1)/77 and three other connected cases, and it was held in unequivocal terms, by a majority view, that the Chairman as specified authority or a Member authorised by him could deal with individual grievances and the framing of regulations was not a condition precedent for exercise of such jurisdiction. The only dissenting vote came from myself and the learned Member Mr. Farhat Ali Khan Anyhow this question cannot be reopened as this authority Is bound by the views expressed by the Full Bench on the point.

4. In regard to the merits, the main ground urged before me by Raja Abdul Rashid the learned counsel appearing on behalf of the petitioner boa been that since the petitioner's services were terminated without a proper show‑cause notice or a proper Departmental enquiry as envisaged by Standing Order 15, the action taken by the Management could not be sustained.

5. Although the factual position stated above was not denied by Mr. Tanveer Bashir Ansari, the learned counsel appearing on behalf of the respondent‑Company, but at the same time, it was contended by him that since the employees In the respondent‑Company are governed by the provisions of the Essential Services Act, no such show‑cause notice or enquiry was necessary, because section 5 of the Essential Services Act creates penalty for a person who abandons his employment or absents himself from were without a reasonable excuse. It was further argued by him that even It a show‑cause notice was necessary, the letter dated 15th October, 1976 produced by the petitioner in evidence and marked as No. IV constituted a sufficient show‑cause notice.

6. As far as the first contention of Mr. Ansari is concerned, section of the Essential Services Act does create a penalty for a person who abandons his employment or absents himself from work without a reasonable excuse, but at the same time, it does not authorise the employer to terminate' the services of an employee without a proper show‑cause notice or an enquiry against him. Since the 'Central Government' or the "Chairman", National Industrial Relations Commission which is the authority specified by the Central Government under section 6 of the Essential Services Act to regulate wages and conditions of service of employees covered by the Essential Service Act, has not prescribed any new conditions different from those prescribed under the Standing Orders Ordinance, the latter still apply to the workers serving under the respondent‑Company. The respondent‑Company therefore, is still under a legal obligation to observe the procedure laid down in Standing Order

15. Evan otherwise the principles of natural justice demand that an employee before being removed from service on the charge of misconduct must be given a reasonable opportunity to explain the circumstances appearing against him. The contention of Mr. Ansari that the latter dated 15th October, 1976 can be treated as a show‑cause notice is also without any substance and is hereby repelled.

7. Under the circumstances the petitioner may be re‑instated in service with full back benefits to which he would have been otherwise entitled in case his services wore not terminated. The respondent‑Company can however proceed against the petitioner by giving him a proper show‑cause notice and conducting a proper enquiry against him.