1992 PLP 136 (PLC)

Date of hearing: 1st October, 1991. Karam Hussain petitioner herein was employed as a Photographer by respondent No.l but his services were terminated on 12th September, 1990 as a result of an enquiry conducted against him. The allegations against the petitioner, according to the show-cause notice/charge sheet dated 28th August, 1990, were that he had failed to perform his duties efficiently and furtl;:r 1ha! two cheques. amounting to Rs.10,00,000 and Rs.3,00,000 were handed over to him on 15th March, 1990 and 18th March, 1990 respectively but he had failed to account for the same. In reply filed by him, the petitioner denied the allegations and further alleged that the charge-sheet has been issued mala fide and for ulterior motives. As regards the amount of Rs.13,00.000 it was explained that the amount in question was paid to 'Vi/s. Nasir Printers as per direction of the Executive Editor.

2. It appears that originally Mr.Aftab Rabani was appointed as the enquiry officer but an objection in writing to this appointment was raised by the petitioner. He thereafter filed an.application before the National Industrial Relations Commission under section 22-A(8)(g) of the Industrial Relations Ordinance 1969 complaining of unfair labour practices on the part of the respondents. This petition which was accompanied by an application of grant of interim relief came up for hearing before a learned Member of the Commission on 12th September, 1990 on which date the main petition was admitted to regular hearing and notice was issued to the respondents for 19th December, 1990. It was directed that in the meanwhile the respondents shall not pass any final order concerning the charge-sheet. According to the case of the petitioner this order was served upon the respondent on 13th September, 1990 but notwithstanding that he was removed from service on 14th September, 1990 by the Chief Executive of respondent No.l. An application was filed by the petitioner before the Commission complaining that as its order had been violated by respondent No.l, action be taken against it. On 30th April, 1991 the Commission referred the case to the Punjab Labour Appellate Tribunal for disposal in accordance with law.

3. In this Constitutional petition, as originally filed, the order of the Member National Industrial Relations Commission dated 30th April, 1991 referring the case to the Punjab Labour Appellate Tribunal was challenged. However, on an application filed by the petitioner, he was allowed to amend the petition in which the petitioner has now impugned the order dated 14th of September, 1990 passed by respondent No.l terminating his services and has also prayed that respondent No.l be directed to treat the petitioner in service and to pay him his emoluments accordingly.

4. In the written statement filed by respondent No.l, it has been objected>", that as the respondent is a Company incorporated as private limited company,'" it cannot be considered to be a person performing functions in connection with' the affairs of the Federation or the Province in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 and as such this petition is not competent. It has further been objected that the services of the petitioner fix. were governed by the principle of Master and Servant and the termination of the petitioner, therefore, cannot be subjected to scrutiny by this Court, in exercise of its power of judicial review.

5. On merits, it was pleaded that the services of the petitioner have been terminated in accordance with law after due enquiry and as such cannot be interfered with. It was denied that the petitioner has been victimised on account of trade union activities. It was reiterated that the petitioner had failed to account for, the amount of Rs.13,00,000 received by him. The petitioner has filed his rejoinder alongwith certain documents.

6. Dr. A. Basit, the learned counsel for the petitioner has contended that the dismissal of the petitioner was illegal and unlawful for the reason that on 12th September,1990 respondent No.l had been restrained by the National Industrial Relations Commission from passing any order on the charge-sheet in question. It is further asserted by the learned counsel that undue haste with which the respondent had acted also establishes his mala fides. The learned counsel argued that no charge against the petitioner stood proved and his dismissal from the service was a measure of victimisation against the petitioner due to his political affiliations and trade union activities.

7. Mr. Asghar Khadim, learned counsel for the respondents has reiterated the objections taken by him in the written statement and has also ' controverted the arguments of the learned counsel for the petitioner on merits.

8. From a perusal of the record, it will appear that the petitioner had on 12th September, 1990 filed an application under section 22-A (8)(g) of the Industrial Relations Ordinance, 1969 against respondent No.l complaining of unfair labour practices. This petition was admitted to regular hearing and notice was issued to the respondent for 19th September, 1991. On the application for interim relief, the National Industrial Relations Commission on 12th September, 1990 directed that "meanwhile the respondents shall not pass the final order concerning the charge-sheet". According to the petitioner this order was duly communicated to the respondents through T.C.S. Courier Service on 13th September, 1990 but notwithstanding that the impugned order was passed on 14th September, 1990. This assertion of the petitioner is supported by the photostat of the receipt of T.C.S. which shows that the letter sent by National Industrial Relations Commission to the Chief Executive and General Manager of Daily Mashriq, Lahore was delivered to him on 13th September, 1990 at 8-25 p.m. In face of this document, it is idle on the part of respondent No.l to plead want of knowledge about prohibitory order of the National Industrial Relations Commission dated 12th September, 1990, while dismissing the petitioner from service on 14th September, 1990. It is obvious that in presence of the injunction issued by an authority of competent jurisdiction, it was not open to respondent No.l to have passed any order in disregard of the restraint imposed upon it. The order dated 14th September, 1990 is, therefore, clearly without any lawful authority.

9. There is also merit in the stand of the petitioner that the order of 14th of September, 1990 has been passed with unholy haste which speaks volumes of the mala fides of respondent No.l. Admitted position between the parties is that on an objection raised by the petitioner the enquiry officer originally appointed namely MrAftab Rabani was removed, and in his place another enquiry officer was appointed on 12th of September, 1990. The petitioner was on medical leave on 12th as well as on 13th of September, 1990 while 14th of September, 1990 was Friday. It is thus really strange that after his appointment on 12th of September, 1990, the enquiry officer held an enquiry in absence of the petitioner and submitted his report on the next day i.e. 13th of September, 1990 which was a Friday. As already mentioned it is admitted in the written statement that on 12th and 13th of September, 1990 the petitioner was on leave. Obviously, therefore, the enquiry officer could not have proceeded in his absence. ???????????????????????????????????

10. It is not discernible from the record as to what evidence was recorded and what proceedings were conducted. by the enquiry officer but in his report it has been stated that he had recorded the statement of Establishment Officer who had refuted the stand of the petitioner that the amount of Rs.13,00,000 received by him was paid to Nasii' Printers. It is also noted in the report that Karam Hussain petitioner was summoned by him through Mohammad Shari Naz but reportedly he said that he would not appear before any enquiry officer.

11. The contents of the enquiry report are belied by the fact that the petitioner was admittedly on medical leave on 12th and 13th of September, 1990 which fact has not been denied in the written statement. Additionally while coming to the conclusion that the petitioner had not explained that a sum of Rs.13,00,000 which was received by him through two cheques under the order of the then Executive Officer namely Mr. Mumtaz Ahmad, it appears that the enquiry officer did not care to consult the relevant record. From the documents placed as Annexures XVI, XVII, XVIII, it is evident that M/s. Nasir Printers had approached the Ombudsman with the complaint that it was not being paid the balance of its bill. Before the Ombudsman, the stand taken by the National Press Trust, which is the governing body of respondent No.l, was that a sum of Rs.13,00,000 had been paid to M/s. Nasir Printers who had acknowledged the same in its letter dated 15th October, 1990. In face of this clear admission, the amount of Rs.13,00,000 stood fully accounted for and there was no justification for respondent No. l to have proceeded to dismiss the petitioner for misappropriation of the aforesaid amount.

12. It is also to be. noted that after the receipt of the enquiry report, even according to respondent No.l himself, the petitioner was never granted any opportunity of being heard. In fact from the circumstances of the present case and the record the conclusion which is inevitable is that respondent No.l, for reasons best known to it, was acting in the case with undue haste. The enquiry officer was appointed on 12th September, 1990. The enquiry report is said to have been submitted on 13th September, 1990 and the order of dismissal was passed on 14th September, 1990 notwithstanding the fact that it was a Friday and therefore, a weekly holiday and also that the petitioner was on medical leave.

13. Reverting now to the objection as to the maintainability of this petition raised by the learned counsel for respondent No.1 the question as to whether the services of the petitioner were governed by the principle of Master and Servant may be attended to. It is settled law that ii the services of an employee are not governed by either a statute or the statutory rules, the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 cannot be invoked but if there be some statutory provision in the Act or the Rules and the impugned order is shown to have been passed in disregard of the same, it can be challenged under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. ?????????

14. There is no dispute that the petitioner is an eniployee of a new paper establishment namely Daily Mashriq. His services are therefore, governed by the provisions of Newspaper Employees (Conditions of Service) Act (LVIII of 1973). According to section 4 of this Act the services of a newspaper employee 1) cannot be terminated by a newspaper establishment without good cause shown through a notice in writing of such termination. The learned counsel for respondent No.l argued that this provision is applicable only in cases where the services of an employee are being terminated without there being any misconduct on his part and it has no application where an employee was being dismissed from service on account of some fault on his part. The restricted interpretation being placed by the learned counsel on section 4 is not countenanced by its language and there is no reason as to why the expression "shall not be terminated without good cause" be interpreted in the manner suggested by the learned counsel so as to confine the application thereof only to cases of termination simpliciter.

15. In the present case as already held, there are no good reasons for 1c. terminating the service of the petitioner and there has been an obvious) violation of section 4 of Newspaper Employees (Conditions of Service) Act, 1973. The impugned order can be removed through power of judicial review vested in this Court under Article 199 of the Constitution.

16. So far as the contention of the learned counsel that respondent No.l being a private limited company is not amenable to the jurisdiction of this Court as it is not a person performing functions in connection with the affairs of the. Federation or a Province, it is to be seen that all the shares of respondent No.l vest in the National Press Trust which in terms is controlled by the Federal Government under the provisions of the National Press Trust Ordinance, 1060. The Chairman of the National Press Trust respondent No.2 is appointed by the President and Head Office pray his pleasure. The .Chief Executive of respondent No.l company is in turn appointed by the Chairman. The entire share holding also vest in the Government. In these circumstances F respondent No.l appears to be an instrument/agency of the Government and a constitutional petition can be maintained against it. This view finds support from the authority of this Court in Javed lqbal and two others v. F.IA. and 3 others (PLD 1986 Lahore 424). The judgments of the Indian Supreme Court in two cases reported in Ajay Hasia etc. v. Khalid Mujib Sehravardi and others (AIR 1981 S.C.487) and Central Inland Water Transport Corporation Ltd., and another v: Brojo Nath Gar.: ally and another (A! R 19S; S.C. 1571) relied upon by the learned counsel for the petitioner also support this proposition.

17. In the last it may also be observed that the respondents had raised another objection namely that the petitioner has other adequate remedy available to him before the Labour Court. This objection, however, does not carry any weight, in the circumstances of the present case where the impugned G order has been found to be mala fide, void and without any lawful authority, especially when it was passed in defiance of an injunction issued by the National Industrial Relations Commission. For the reasons aforesaid this petition is allowed and, the order terminating the service of the petitioner is declared to be without lawful authority and of no legal effect with costs. H.B.T./K-8/L?????????????????????????????????????????????????????????????????????????????????????? Petition allowed.