2020 PLP 209 (PLC)

MIAN SHAKIRULLAH JAN, CHAIRMAN.

This is an appeal against the order dated 27-01-2017 passed by Saleem Jan Khan, the learned Member NIRC Karachi whereby the grievance petition of the appellant was dismissed

2. Brief facts of the appeal, as asserted by the appellant, are that the appellant filed grievance Petition No. 13/2011 before the Sindh Labour Court No. 4 at Karachi but the same was transferred to the NIRC in light of the judgement passed by the Hon'ble Sindh High Court in K-Electric case as the respondent is a trans-provincial establishment. The petitioner has stated in his petition that he was appointed as Cargo Assistant and joined his duties on July 05, 2010. However, he was terminated from service vide order dated 25.11.2010 without inquiry, show-cause or observing codal formalities.

3. Contention of the learned counsel for the appellant is that the impugned order is against the settled law and liable to be set aside. It has been contended that the learned Member has failed to touch the merit of the case and ignored the documents produced by the appellant and also failed to record a reason for dismissing the petition. The learned counsel vehemently argued that the appellant is a workman and protected under the labour law; however, the learned Member has failed to consider the prescribed procedure i.e. show-cause, inquiry etc. has not been followed before terminating the services of the petitioner.

4. The learned counsel for the appellants further submitted that the appellants were appointed in the PIAC after scrutiny and in case of any irregularity, the appointing authority is to be blamed and proceeded against instead of the poor worker who earns livelihood for himself and his family. The counsel for the appellant has also filed written arguments. It has been prayed that the impugned orders may be set aside and the appellant may kindly be reinstated into service. Reliance has been placed on case laws reported as 1994 SCMR 2232, 2001 SCMR 931, 2011 PLC (C.S.) 331, 1991 PLC 643, 1989 PLC 229 and 2006 PLC 66.

5. Conversely, the learned counsel for the PIAC has vehemently opposed the contention raised by the learned counsels for the appellants and supported the impugned order. It has been argued that no illegality or irregularity has been committed by the learned single bench that has rightly dismissed the petition. It has further been submitted that PIAC has sufficient documentary evidence to proceed against the appellant without holding an inquiry.

6. We have given anxious consideration to the arguments advanced by learned counsel for the parties and perused the available record with their able assistance.

7. From the perusal of cross-examination of Mr. Muhammad Tahir Naveed, Respondent's witness, it has transpired that the services of the appellants were terminated without issuing either charge sheet or show-cause notice. "It is a fact that during the service tenure no charge sheet was issued to the applicant. The termination letter was issued without issuance of show cause notice to the applicant"

8. It is an undeniable fact that the appellant is a workman under the Industrial and Commercial Establishment (Standing Orders) Ordinance, 1968 and PIAC Employees (Service and Discipline) Regulations, 1985 are non-statutory in nature; thus, he would enjoy the protection of the said Ordinance and his services would not be governed by the non-statutory regulations of the company. In this behalf reference can be made to the cases of Zafar Iqbal v. Pakistan International Airlines through General Manager (Personnel) PIA, Karachi and 4 others (2011 PLC (C.S.) 259).

9. The learned Single Bench has dismissed the grievance petition on the ground that the required qualification for the post against which the appellant was appointed, was graduation in second division whereas the appellant has passed graduation in third division as stated by himself. However, the admitted fact that the services of the appellants were terminated without issuing either charge sheet or show-cause notice finds no mention in the impugned order dated 27-01-2017 passed by the learned single bench.

10. Right to seek redress of grievance of dismissed workman, whose services have not been terminated in connection with or as consequence of an industrial dispute, has been made available to such workman, not through the force of Section 33 of IRA, 2012 but by extending said provisions to S.O. 12(3) of the Ordinance VI of 1968.

11. For the sack of convenience Section 12(3) of the Ordinance VI of 1968 is reproduced hereinbelow:- "Section 12(3) The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed form service except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of Section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an industrial dispute." Where a reference to Section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) is to be considered a reference to Section 33 of the IRA, 2012. By virtue of Section 8 of the General Clauses Act, 1897, which Section reads as under:- "Construction of reference to repealed enactments-(1) Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted." In this respect we are fortified by a judgment of the honourable Supreme Court of Pakistan titled National Telecommunication Corporation through Chairman v. National Industrial Relations Commission through Chairman and others reported as 2014 SCMR 1833.

12. In such eventuality definition of "workman" as embodied in Section 2(i) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 would be considered. In this connection reliance can be placed on case of Mustekhum Cement Limited through Managing Director v. Abdul Rashid and others reported as 1998 SCMR

644. In case of termination of employment in violation of clause (3) of Standing Order 12 as pointed out hereinabove, it is sufficient that the workman concerned falls within the definition of the 'workman' given in clause (i) of Section 2 of the Ordinance, 1968 and he need not be covered by the definition of the 'workman' and 'worker' given in clause (xxxiii) of Section 2 of the IRA, 2012. In this connection reliance can be placed on case of Syed Matloob Hussain v. Broke Bond Pakistan Limited, Lahore reported as 1992 SCMR 227.

13. The dismissal of the appellant without affording a fair and proper opportunity by dispensing with the inquiry is the flagrant violation of the mandatory provisions of the Industrial and Commercial Establishment (Standing Orders) Ordinance, 1968 and principles of natural justice. The provisions of Standing Order 15 (4) of the Industrial and Commercial Establishment (Standing Orders) Ordinance, 1968 are mandatory and their non-observance was sufficed to vitiate the entire proceedings. In this behalf reference can be made to the judgement of the Hon'ble Supreme Court in the case titled Hafeez Shah v. United Bank Limited and 2 others (2001 SCMR 931). 13(sic) The proceedings with regard to dismissal of the worker having been conducted in violation of the mandatory provisions of the Industrial and Commercial Establishment (Standing Orders) Ordinance, 1968 and principles of natural justice could not be sustained; therefore, the impugned order dated 27-01-2017 passed by the learned single bench dismissing the grievance petition of the appellant as well as the termination letter dated 25-11-2010 are liable to be set aside.

14. For the foregoing reasons, while accepting the appeal the impugned order dated 27-01-2017 as well as termination letter dated 25-11-2010 are set aside with the directions to the respondents to reinstate the appellant in service. However, the respondent establishment may have an option to proceed against the appellant for the alleged misconduct in accordance with law. File be consigned to record room after due completion. ZC/6/NIRC Appeal allowed.