193 PLP 1101 (PLC)

AJMAL MIAN, J.‑In this petition the petitioner has impugned the order dated 12th November, 1980 passed by respondent No. 1 ordering reinstatement of respondent No. 2 in petitioner's services. The relevant facts leading to the filing of this petition are that respondent No. 2 was employed as an Assistant Manager (Administration) on the terms and conditions contained in appointment letter dated 27th May, 1976. He was promoted with effect from 1st April, 1979 as a Deputy. Manager. However, on 17th December, 1979 his services were terminated in purported exercise' of power contained in clause (e) of the aforesaid appointment letter by offering to pay three months' salary in lieu of three months' notice. Respondent No. 2 being aggrieved by the above order filed an application on 8th March, 1980 before respondent No. 1, which was accepted through the impugned order.

2. In support of the above petition Mr. Kamal Mansoor Alam, learned counsel for the petitioner has urged that the impugned order is without jurisdiction in view of the clear pronouncement of the Supreme Court inter alia contained in the case of Karachi Electric Supply Corpora tion Ltd. v. National Industrial Relations Commission and another (P L D 1982 S C 125).

3. Mr. Sami Ahmed, learned counsel for respondent No. 2 contends that in spite of the above judgment, this Court in exercise of writ jurisdic tion under Article 199 of the Constitution, 1973 read with Article 4 can examine the legality of the termination order with reference to section 5 of the Pakistan Essential Services (Maintenance) Act, 1952 (hereinafter referred to as the Act of 1952). In support of the above submission he has referred to section 5 of the above Act of 1952, which reads as follows:‑ Sec. 5.‑"OVences.‑(1) Any person engaged in any employment or class of employment to which this Act applies who‑‑ (a) disobeys any lawful order given in the course of such employment, or attempts to persuade any person to disobey any such order, or (b) without reasonable excuse abandons such employment or absent himself from work or refuses to work or to continue to work, whether or not acting in combination with or under a common understanding ‑ of, any other person engaged in such employ ment, or (c) departs from any area specified in an order under subsection (1) of section 4 without the consent of the authority making that order, and any employer of a person engaged in an employment or class of employment, declared under section 3 to be an employment or class of employment to which this Act applies, who without reason able excuse ‑ (i) discontinues the employment of such persons, or (ii) by closing an establishment in which such person is engaged, causes the discontinuance of his employment, is guilty of an offence under this Act. Explanation L‑The fact that a person apprehends that by continuing in his employment he will be exposed to increased physical danger is not a reasonable excuse within the meaning of clause (b). Explanation 2.‑A person abandons his employment within . the meaning of clause (b) who, notwithstanding that it is an express or implied term of his contract of employment that he may terminate his employment on giving notice to his employer of his intention to do so, so terminates his employment without the previous consent of his employer. (2) Whoever instigates or incites any person engaged in any employ ment or class of employment to which this Act applies to commit an offence under this Act, or knowingly expends or supplies any money or otherwise acts in furtherance of the commission of such an offence, shall be deemed to have committed that offence." It may be noticed that the above section provides that any person engaged in any employment or class of employment, to which the Act of 1952 applies shall not without reasonable excuse abandon such employ ment etc. It may further be noticed that it also provides that any employer of a person engaged in employment or class of employment declare "k under section 3 to be an employment or class of employment to which the i Act of 1952 applies, without reasonable excuse, shall not discontinue the employment of such person.

4. On the basis of the above section, it has been argued by Mr. Sami Ahmed that in the instant case admittedly respondent No. 2's services were terminated .simpliciter without assigning any reason and, therefore, the above section 5 of the Act of 1952 has been violated by the petitioner entitling respondent No.r2 to seek appropriate relief from this Court through a writ petition. In our view, as respondent No. 2 has not filed a petition before us as a petitioner but is a respondent in a petition in which the order of respondent No. 1 has been challenged being without jurisdiction, we cannot examine the merits of the above contention. For the purpose of the disposal of the above petition, it will suffice to observe that the above Supreme Court of Pakistan case is applicable to the instant case as admittedly respondent No. 1 has no jurisdiction to grant the reliefs, which he purported to grant through the impugned order. We, therefore, declare the same as without lawful authority and of no legal effect. . However, there will be no order as to costs, M.Y.M. Petition allowed,