2018 PLP 228 (PLC)

ZAHOOR AHMED MENGAL, MEMBER.

This appeal is directed against the judgment dated 29-04-2017 passed by the Presiding Officer, 1st Labour Court, Quetta, wherein the application filed by applicant under section 41 of Balochistan Industrial Relations Act, 2010, was accepted.

2. Precise facts relevant for disposal of instant case are that the applicant/respondent filed an application before Trial Court with the averments that he is working in the Institution of appellants for more than twenty years teaches Islamiat and Arabic subject by taking six periods on daily basis. After appointment of sitting Principal/appellant No.1, he keeps strange attitude with the applicant/respondent and due to personal grudge issued show-cause notice on 15-03-2016 without any prescribed period for submission of reply, thereafter another show-cause notice dated 18-03-2016 was issued to the respondent with different allegations and respondent was directed to submit reply, but all of sudden terminated respondent from service vide order dated 19-03-2016 without conducting inquiry and waited for reply of respondent. Being aggrieved, the respondent filed departmental appeal/ grievance application but in vain. Thereafter, the respondent preferred application before 1st Labour Court, Quetta which was accepted.

3. The appellants/respondents being aggrieved from the order of Trial Court filed instant appeal.

4. Mr. Syed Aizaz Hussain Baqiri, Advocate learned counsel for the appellants submitted that, in fact the respondent does not fall within the category of workman as the Helper School/college is not included in the definition of industries, the Trial Court has not considered this crucial and legal aspect of the case and passed the judgment having no jurisdiction, the same is liable to be set aside on this sole ground.

5. On the other hand Mr. Abdul Zahir Kakar, Advocate learned counsel for the respondent opposed the appeal and contended that the respondent was terminated from the service without adapting the procedure and affording opportunity of due hearing. He further urged that the judgment impugned herein passed by the Learned Trial Court is based on true appreciation of record and the same is liable to be maintained.

6. Record of the case perused, it is evident from the record that the respondent was served with two (02) show-cause notices dated 15-03-2016 and 18-03-2016 respectively while on 19-03-2016 soon after the second show-cause notice the termination order was issued to the respondent. The appellants neither conducted any inquiry nor given any opportunity of hearing to the respondent which is a violation of due process of law, without affording any opportunity of defence to any employee amounts to act of unfair and unjust and against the norms of natural justice, the same is against the spirit of Article 4/10-A of Constitution of Islamic Republic of Pakistan.

7. It is important to mention here that the respondent was served upon two successive notices, but no reasonable/ specific time was given to him for reply of the same even though, there is almost a gap of half day between the second show-cause notice and termination order dated 19-03-2016 which is neither reasonable nor legal act on behalf of appellants.

8. As far as the objection of appellants that neither the institution is an industry nor the respondent fall under the category of worker and workman is concerned, the same is being explained, as the helper school is running under helper association and receives fee from students. Furthermore, nothing was brought on record to prove that they engaged less than 20 workers and admittedly, it is a unit of joint stock company. Even if it is held that the appellant is not industry as defined in I.R.O., still the appellant would not be barred from enforcing his rights guaranteed under Standing Order Ordinance by filing petition under section 25-A, I.R.O. because this section entitles the workman to seek relief to enforce the rights which are granted to him by any law. In support of above mentioned principle reported judgment 1990 PLC 675 being important is reproduced as under: "Section 25-A West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance (VI of 1968), Termination of service

Appellant was employed as a teacher in respondent Private School-grievance petition of appellant was dismissed on ground that she was not a workman and there was no evidence to show that more than twenty workers were working in respondent's establishment, so as to make West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 applicable to it or that respondent being a company which promoted education for Welfare Society was exempted from application of Standing Orders Ordinance 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"- Respondent also failed to prove that number of workmen employed by it was less than twenty or Standing Orders Ordinance, 1968 was not applicable-Evidence showing that appellants services were terminated for inefficiency or misconduct as she failed to improve her teaching standard

Held, neither provisions of Standing Orders No.12(3) nor 15(4) which were applicable had been complied with by respondent

Order of termination was, therefore illegal

order was set aside and appellant was ordered to be re-instated in service" Reliance is also made on the following judgments: i. Anjuman Faizul Islam v. Pakistan and others, 1988 PLC 937 ii. Mohamamd Manshah v. Ali Industrial Technical Institute 1985 PLC 604 iii. Abdul Wahid v. Messrs Bombay Silk Mills 1998 PLC 221 iv. Security Paper Limited v. The Sindh Labour Appellate Tribunal 1998 PLD (SC) 180 and v. Ghulam Sarwar v. Principal, Government of Teachers Training College, Khairpur 1982 PLC 771

9. The appellants miserably failed to point out any illegality, irregularity, misreading or none-reading in the judgment impugned herein dated 29-04-2017, therefore, the same does not need any interference by this tribunal hence the same is maintained. Consequently, the appeal being devoid of merit is hereby dismissed.

10. The parties are left to bear their own cost.

11. The copy of Judgment along with original record of Trial Court be sent to Trial Court. Case after completion be consigned to record.

12. GIVEN under my hand and seal of the Court on 24th August, 2017. MQ/3/BLT Appeal dismissed.