1990PLC11 (PLP)

Nurul Hassan for Respondent. Date of hearing: 18th May, 1989. AJMAL MIAN, C.J.‑‑‑The petitioner by this petition has impugned the dismissal order dated 27‑4‑1976 from the service by the respondent where he was employed as a Data Processing Manager and was made incharge of the Computer Department at a monthly salary of Rs. 2,100 with usual allowances. It seems that against the above order, the petitioner approached N.I.R.C. which by its order 3rd January, 1977 reinstated the petitioner, against which the respondent filed a Constitutional Petition namely, C.P. No.D‑183/1977, which was dismissed by a Division Bench of this Court. Against the above Judgment the respondent filed a petition for leave to appeal in the Honourable Supreme Court in which leave was granted. After that the appeal was heard alongwith the other connected appeals and by a judgment dated Ist December, 1981 reported in P L D 1982 S C 113, it was held that the N.1.R.C., had no jurisdiction to entertain the petitioner's application in view of the provisions of the Essential Services Act. Consequently the respondent's appeal was allowed and the judgment passed by the N.I.R.C. and the High Court were set aside. After the above judgment, the petitioner has filed the present petition. (2) 1t may be observed that the Honourable Supreme Court in the above reported judgment which also covers the case of the petitioner, as pointed hereinabove, has clearly held that the remedy provided to the petitioner is to take steps to institute proceedings as provided by section 7 of the Essential Services Act. The relevant portion of the judgment on the above point reads as follows:‑‑ "Mr. Talmiz Burney, on behalf of the second respondent, contended that despite the absence of the direction, the word "regulate", as it occurs in the provisions under discussion, empowers the specified authority to resolve the dispute in regard to the termination of service, but this contention has no substance in view of what I have held above in regard to its interpretation in the light of the provisions of this Act. Section 5 deals with the cessation of employment either at the behest of the employer or the employee. It would thus include termination of service according to the terms and conditions, discharge, dismissal, absence or abandonment and retrenchment. The direction issued in terms of Rule 3(2)(d) concerning the termination of employment will also be covered in view of the wide and all embracing language of this section. Any discontinuance of employment has necessarily to be judged from the test laid down in the section, namely, that it was "without reasonable excuse". Therefore, if the respondents felt aggrieved either by their termination of service or dismissal, they should have taken steps to institute the 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." 3.???????????????????????????????????????????????????????????????????????????????????????????? However, it has been contended by Mr. Mushtaq Memon, learned counsel for the petitioner, that factually there is no forum provided under section 7 of the aforesaid Act where the petitioner can agitate his right to claim reinstatement and, therefore, the above petition is competent. 1n our view, in presence of the above clear observations of the Honourable Supreme Court inter alia, in the case of the petitioner, who was respondent in the case, we cannot hold that the petitioner can maintain a writ petition. It has also been contended by Mr. Mushtaq Memon that there is no finding of the Honourable Supreme Court to the effect that the High Court has no jurisdiction in the matter. In our view, once the Honourable Supreme Court has held that the remedy available to the petitioner is in the form of section 7 of the Essential Services Act, it is implied that the High Court cannot entertain a petition

4. The petition is, therefore, dismissed with no order as to Costs. H.B.T./S‑476/K ????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.