2015 PLP 33 (PLC)

HAFIZ ABDUL REHMAN ANSARI (CHAIRMAN).

The appellant-department has filed the instant appeal before this Tribunal against judgment/order dated 28-3-2014 passed by learned Presiding Officer, Punjab Labour Court No.11, D.G. Khan, whereby learned Presiding Officer accepted the grievance petition filed by respondent/ petitioner. The concluding Para of the judgment is reproduced hereunder:

"In view of the above, the impugned inquiry, the inquiry report and consequential termination order which held to be illegal, void and of no legal effect. The petitioner is directed to be reinstated immediately with back benefits."

2. The brief facts of the instant case are that respondent/petitioner was appointed on 26-12-1984 by Chairman District Council Muzaffargarh as a teacher in Sardar Kaurey Khan Model School Muzaffargarh. The said School was established in 1983 which was run by District Council Muzaffargarh; thereafter, it was declared autonomous body and the management was transferred to a governing body through a resolution of said Council; the respondent/petitioner had an unblemished record, however, Principal Sardar Kaurey Khan School served her a charge sheet dated 27-11-2006 along with statement of allegations under Punjab Removal from Service (Special Powers) Ordinance, 2000 (VI of 2000) hereinafter to be called PRSO, 2000) reply whereof was submitted by her by rebutting the allegations of a general nature, and by maintaining that no inquiry was conducted by the Inquiry Committee; no personal hearing was afforded to her by the Board of Governors etc.; no show-cause notice was issued; finally termination order dated 27-6-2006 was issued, which was called in question by way of appeal (Exh.P.6) before Learned Punjab Service Tribunal, where vide judgment dated 23-7-2010 (Exh.P.7) held to have no jurisdiction over the matter. The matter was taken to the Hon'ble Supreme Court of Pakistan but was withdrawn on 15-3-2011 (Exh.P.10). Hence, grievance petition was filed before Learned Labour Court No.11, D.G. Khan on the ground that the impugned order is illegal, void, against the record, without affording her opportunity of being heard etc.

4. The appellant-department filed written statement before Punjab Labour Court No. 11, D.G. Khan by raising some preliminary objections i.e. lack of jurisdiction, in that, the respondent/petitioner is not a workman, regular inquiry was held against her, she despite issuance of notices time and again did not appear; the alleged termination took place on 27-6-2006 whereas PIRA, 2010 was promulgated in 2010, as such, grievance petition is not maintainable. On facts, all the allegations were rebutted.

5. Learned Presiding Officer recorded evidence of both the parties. Respondent/petitioner entered in the witness-box as PW-1 and submitted documents Exh.P.1 to Exh.P.10 in support of her grievance petition. On the other hand, Principal Sardar Kaurey Khan School appeared as RW-1 and tendered documents Exh.R.1 to Exh.R.42 in support his contentions.

6. Learned Presiding Officer, Punjab Labour Court No.11, D.G. Khan accepted the grievance petition of the respondent/petitioner vide judgment/order dated 28-3-2014. Hence instant appeal filed by appellant-department before this Tribunal.

7. Learned counsel for appellant submits that respondent-lady took plea before Punjab. Service Tribunal, she is a civil servant and she has rightly knocked the door of Punjab Service Tribunal. Learned Member Punjab Service Tribunal held in its judgment dated 23-7-2010 that respondent-lady is not a civil servant, her appeal was held not to be maintainable. The respondent-lady filed CPLA No.2442 of 2010 before Hon'ble Supreme Court of Pakistan which was withdrawn vide order dated 15-3-2011 in order to avail appropriate remedy. Learned counsel submits that present appellant filed concise statement before Hon'ble Supreme Court of Pakistan. Learned counsel submits that inquiry was conducted with regard to charge sheet but inquiry officer could not appear before trial court to substantiate findings of inquiry conducted by him. Learned counsel drew attention of this Tribunal that each and every coming Principal had a similar view against respondent-lady with regard to her misconduct. Learned counsel submits that appellant has taken stance in the beginning of the litigation that respondent-lady is not a workman and Learned Labour court has no jurisdiction to adjudicate the matter. Learned counsel submits that grievance petition was badly time-barred. He further submitted that impugned judgment dated 28-3-2014 is based on misreading and non-reading of evidence. Learned counsel submitted that impugned judgment/order dated 28-3-2014 is based on surmises and conjectures. Learned counsel for appellant placed reliance on 2001 PLC 589 titled as Board of Governors Aitchison College, Lahore v. Punjab Labour Appellate Tribunal and others, 2014 PLC 49 titled as Athar Ali v. Punjab Labour Appellate Tribunal and others 2005 SCMR 1049 titled as Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal and another, Sherin and 4 others v. Fazal Muhammad and 4 others 2007 SCMR 737 titled as Tanveer Hussain v. Ravi Ryan Limited through Managing Director, and others, 2009 CLC 386 titled as Muhammad Ramzan v. Abdul Majeed and 4 others 2012 PLC 62 titled as Habib Bank Ltd. through its Attorney Karachi and others v. Abid Hussain and 2 others.

8. Learned counsel for respondent/petitioner fully supported the judgment/order dated 28-3-2014 passed by learned Presiding Officer, Punjab Labour Court No.11, D.G. Khan and submits that show-cause notice was issued by incompetent authority. Learned counsel submits that it was power of Board of Governors who should have issued notice and pass a resolution to initiate disciplinary proceeding against the respondent. Learned counsel for respondent-lady submits that appointing authority is Board of Governors and show-cause notice should have been issued by the Board of Governors. Learned counsel further submits that Learned Labour Court has rightly passed the impugned judgment which is based on cogent reasons. Learned counsel for respondent/petitioner placed reliance on 2011 SCMR 1709 titled as Karachi Chamber of Commerce and Industry, Karachi v Sindh Labour Court No.V, Karachi and others, 2000 SCMR 1321 titled as Province of Punjab through Additional Chief Secretary, Government of Punjab and another v. Muhammad Siddique Khan, 2013 PSC 1603 titled as Inspector-General of Police Punjab, Lahore v. Tariq Mahmood, 2001 SCMR 1566 titled as Zahoor Ahmed v. WAPDA and others, 2003 SCMR 1720 titled as Muhammad Nawaz v. District and Sessions Judge and others 2006 SCMR 1000 titled as Daud Shah and another v. Pakistan Water and Power Development Authority and others, 1990 PLC 675 titled as Mrs. Nishat Aslam v. Messrs Becon House Public (Pvt.) Ltd. and 1992 PLC 1090 titled as Gul Sher v. Divisional Superintendent, Pakistan Railways, Sukkur and 12 others. 9. 1 have heard the learned counsel for both the parties and perused the record of the learned trial Court minutely.

10. The record of the lower court revealed that detailed inquiry report is not exhibited in evidence and Inquiry Officer did not appear in witness-box to record his statement in support of inquiry held by him, such inquiry cannot be taken into consideration in evidence unless author of the inquiry is produced as a witness in witness box for cross-examination to dig-out the truth of findings of inquiry. I fully agree with the contention of learned counsel for respondent/petitioner that termination order dated 27-6-2006 was passed by incompetent authority i.e. Principal Sardar Kaurey Khan School, only Board of Governors is the competent authority to pass termination order as Board of Governor is the appointing Authority and Appointing Authority is competent to pass such, termination order. So, termination order dated 27-6-2006 has no legal sanctity. The record of the lower court reveals that no resolution was passed by Board of Governors to initiate disciplinary action against respondent-lady teacher for misconduct. The principal or headmaster of the school is not appointing authority; he could not issue show-cause notice. As such, whole disciplinary proceedings are corium, non-judice and void ab initio on account of such illegal proceedings. The respondent-lady has suffered not only mental torture and agony and is also gone through protracted litigation. Firstly, up to Hon'ble Supreme Court of Pakistan and now this second round of litigation which has arisen from the impugned order, Almighty Allah knows when this litigation will come to end. The Learned Labour Court passed detailed judgment supported with citations of superior courts and made conclusion accepting the same in favour of respondent-lady teacher. As far as question of limitation filing grievance petition is concerned as termination order passed by Principal of the institution/establishment was wholly without jurisdiction void, ab initio, no limitation runs against such order to question the same. Safe reliance can be placed on PLD 2008 SC 663 titled as Moulana Atta-ur-Rehman v. Al-Haji Sardar Umar Farooq and others, 2007 SCMR 459 titled as Province of the Punjab through Secretary Settlement and Rehabilitation Department, Lahore and PLD 2001 SC 514 titled as Land Acquisition Collector, Nowshera and others v. Sarfraz Khan and others. The objection of the appellant that grievance petition was time barred has no weight and substance. As far as objection of jurisdiction is concerned it is held in 1990 PLC 675 titled as Mrs. Nishat Aslam v. Messrs Becon House Public (Pvt.) Ltd. that "Job of appellant was to impart knowledge of letters and words to students by writing same on blackboard, write on their copies and check and correct writing of students which part of her duties involved manual and clerical labour and could neither be considered as incidental or ancillary to her job but one of the main parts of her job, appellant was as such a workman". The respondent-lady teacher has been performing exactly similar duties in school as mentioned in judgment supra. So, it is admitted fact that appellant institution is a private School/ institution and in the light of judgment supra, the respondent-lady knocked the door of Labour Court for redressal of her grievance. Both these objections of appellant are not tenable. It is stated by RW-1 in cross-examination:

The statement and document of the appellant establishes that school/ institution is being run on commercial basis and same is not purely charitable institution. The appellant withheld best piece of evidence counter file of charging fees from the students. The appellant could prove through this document that institution is not charging high fees Rs.2500 to 3500 from the students. So, under provision of IRA, 2010 employee of such institution can file grievance petition for redressal of his grievance. The relevant provision of law 3(h) of IRA, 2010 is reproduced below:

(3) It shall apply to all persons employed in any establishment or industry, but shall not apply to any person employed: (h) "in an establishment or institution providing education or emergency services excluding those run on commercial basis."

11. The learned Labour Court No. 11, D.G. Khan passed impugned judgment dated 28-3-2014 after correct appraisal of evidence. There is no flaw and infirmity in the impugned judgment dated 28-3-2014, same is hereby upheld. The instant appeal has no legal force; same is hereby dismissed with no order as to costs. SA/11/PLT Appeal dismissed.