1990PLC1 (PLP)

Date of hearing: 9th March, 1989. SYED HAIDER ALI PIRZADA, J.‑‑‑This petition calls in question order dated 8‑1‑1985 passed by the respondent No.l whereby the petitioner was removed from his services. The facts giving rise to the above petition are that the petitioner was serving as motor driver with respondent No.l for over 11 years. It is the case of the petitioner that in the past some interested persons with mala fide intentions levelled false allegations against the petitioner who was served with a ‑ charge sheet dated 12‑3‑1980 but the charge proved false and enquiry was dropped and the petitioner was absolved from those baseless charges. It is further alleged that similarly on 1‑7‑1980 a memorandum was served on the petitioner regarding the shortage of petrol from a Government jeep and sum of Rs. 48.88 was recovered from the driver and the petitioner who resisted the charge and finally it was concluded in favour of the petitioner and the amount was refunded to the petitioner. It is further alleged that again a memorandum was served on the petitioner in August, 1980 informing the petitioner that he was provisionally removed from service but on 15‑9‑1980 the said memorandum was withdrawn by the respondent No.

1. It is the further case that the petitioner was harassed continuously and again was accused of four charges regarding change in meter, cuttings and over‑writings in Log Book, meter reading and making entries in Log Book and a charge‑sheet dated 17‑10‑1984 was given to the petitioner. The petitioner sent a reply dated 31 10‑1984 denying all the charges and explaining that the petitioner has no concern with these items which are directly supervised by concerned officers who are also signatory to these items after checking but the illegal enquiry was conducted wherein no proper opportunity was extended to the petitioner and reply on the statement of Ghulam Muhammad who is also charged and in fact who is responsible for these illegalities. The order/memorandum dated 24‑12‑1984 was served on the petitioner wherein the Station Director provisionally decided to remove the petitioner from service. The petitioner being aggrieved against the order dated 24‑12‑1984 riled C.P.No. D‑33 of 1985 wherein it was informed that the petitioner was removed from service. On this statement the petition was dismissed as it had become in fructuous. The order dated 8‑1‑1985 for removal of the petitioner from the service was served upon the petitioner. The petitioner being aggrieved against the order, dated ‑1‑1985 has filed the present petition. Mr. Mirza Ghiasuddin Baig learned counsel for the petitioner has contended that the petitioner was condemned unheard. On the other hand Mr. Hakim Ali Siddiqui learned counsel for the respondent No. 1 has submitted that the respondent No. 1 is an essential service employee and the petition is not competent. Learned counsel for the respondent has placed reliance on decisions reported in P L D 1982 S C 130, P L D 1983 Lah. 161 and 1987 S C M R 1483. The dictum laid down by the Hon'ble Supreme Court in the case of Karachi Electric Supply Corporation (P L D 1982 S C 113) was followed in 1987 S C M R 1483. It is not in dispute that the provisions of Pakistan Essential Services (Maintenance) Act 111 of 1952 are applicable to the respondent No.

1. The learned counsel for the respondent has produced photostat copies of notifications issued from time to time. In Karachi Electric Supply Corporation v. National Industrial Relations Commission and another (P L D 1982 S C 113) it has been observed that "where a statute provides a forum for dealing with the violations, no other authority can be a substitute for it, the more so when the Act is an Emergency Legislation and has taken care to exclude the application of other laws which provide a forum for resolving the dispute between the employer and the employees, arising from the violation of the terms and conditions of service." It was further observed that if the employees felt aggrieved either by their termination of service or dismissal, they should have taken steps to institute proceedings as provided by section 7 and in that event it would have been open to the Court to determine as to whether the termination, according to the terms and conditions of service, or by way of dismissal or discharge, was without lawful excuse or not as the expression "without reasonable excuse" signifies an excuse which is not lawful, the only right of an employee against wrongful termination of service recognised by law is a recourse to proceedings under section 7 of the Pakistan Essential Services (Maintenance) Act, 1952. In the case of Khuda Bux v. Pakistan Steel Mills Corporation and 2 others (1983 P L C 167) a Division Bench of this Court followed the above observations. The above decision was followed in the case of Abdul Rehman v. Messrs Esso Eastern Inc. and others (1987 S C M R 1483). In view of the observations made by the Hon'ble Supreme Court in the above K.E.S.C. and Esso cases and by a Division Bench of this Court to the effect that, A no forum can resolve the dispute between the employer and employee other than the forum provided by the Act, it is not open to this Bench to hold otherwise. In view of the above, the aforesaid petition would appear to be un-maintainable. Consequently, it is dismissed. In the circumstances of the case, the parties shall bear their own costs. The above are the reasons for the short order dated 9‑3‑1989 dismissing the petition on conclusion of arguments. H.B.T./T‑68/K Petition dismissed.