2013 PLP 48 (PLC)

ASAD MUNIR (CHAIRMAN).

This appeal, filed under section 47(3) of the Punjab Industrial Relations Act, 2010, calls into question the Punjab Labour Court No.5, Sargodha's judgment dated 31-3-2011, whereby the grievance petition of the respondent/Nazir Ahmad, has been accepted and the appellants have been directed to reinstate the respondent.

2. Necessary facts that need to be narrated for the disposal of this appeal are that the respondent joined WAPDA as a Lower Division Clerk on 19-6-1979. Upon the reorganization/decentralization of WAPDA, the respondent in May 1998 became an employee of the Faisalabad Electric Supply Company Limited ("FESCO") where he was on 3-3-2005 promoted to the post of Commercial Assistant. A show cause notice dated 1-10-2007, under the Removal from Service (Special Powers) Ordinance, 2000 ("RSO, 2000"), along with a statement of allegations was issued whereby the respondent was charged with fraud causing loss of Rs.3093937 to FESCO by giving undue benefit of the said amount on account of "refund of 507124 units through bogus and fake MCOs while preparing CP-138 in connivance with the consumers. It was stated in the said show cause notice that "on the basis of the documentary evidence available, it is not considered necessary to have formal inquiry against you and that proceedings are being initiated under section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000, which might entail imposition of one of the minor/major penalties as specified in the said the Ordinance." In defense, a reply was filed by the respondent on 11-2-2008 but, vide order dated 7-11-2008, the penalties of removal from service and the recovery of Rs.29,53,494 were imposed on the respondent. It may be stated here that an F.I.R. on the same charges was also registered against 33 persons including the respondent but the respondent was exonerated by the police and the F.I.R. stood cancelled on 30-6-2008.

3. After filing a departmental appeal, which remained pending, the respondent filed before the Federal Services Tribunal ("FST"), an appeal under section 10 of the Removal from Service (Special Powers) Ordinance, 2000. Vide its order dated 23-6-2010, the FST, relying upon Hon'ble Supreme Court's judgment dated 13-4-2010, passed in Civil Petition No.1863 of 2009, dismissed the appeal on the ground that it had no jurisdiction as FESCO employees were not governed by any statutory rules even though penalties had been imposed on the respondent under the RSO, 2000. The FST's order dated 23-6-2010, dispatched on 5-7-2000, is acknowledged to have been received by the respondent on 13-7-2010.

4. After the receipt of the FST's order dated 23-6-2010 on 13-7-2010, the respondent sent grievance notices to the appellants on 24-7-2010 as is shown by the courier receipts Exh.P/2 and Exh.P/4. Thereafter, the respondent on 30-7-2010 filed his grievance petition before the Punjab Labour Court No.5, Sargodha, and prayed for his reinstatement with back benefits. Vide judgment dated 31-3-2011, the Punjab Labour Court No.5, Sargodha has accepted the grievance petition as prayed for.

5. The judgment dated 31-3-2011, passed by the learned Labour Court No.5, has been challenged, firstly, on the ground that the learned Labour Court had no jurisdiction to decide the grievance petition as it was not maintainable in the absence of any grievance notice having been served by the respondent on the appellants. Secondly, the removal of the respondent without any regular inquiry has been defended with the argument that on the basis of available documentary evidence, the regular inquiry was lawfully dispensed with under section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000.

6. In reply, the learned counsel for the respondent has asserted that the respondent has complied with the mandatory requirement as the record shows that grievance notice was served by the respondent on the appellants. Learned counsel has supported the impugned judgment by arguing that the respondent's removal without holding any regular inquiry was illegal keeping in view the provisions of the Standing Order 15(4) of the Commercial and Industrial Employment (Standing Orders) Ordinance, 1968.

7. There is no cavil to the proposition that the service of the grievance notice is a mandatory condition precedent for filing the grievance petition. However, a perusal of the record negates appellant's contention that no grievance notice was given by the respondent to the appellants. As is shown by the record, the grievance notice dated 24-7-2010 was dispatched to both the appellants by courier on 24-7-2010. In this regard, reference may be made to the grievance notice dated 24-7-2010 addressed to appellant No.1 (Exh.P/1) along with the courier receipt dated 24-7-2010 (Exh.P/2) and grievance notice dated 24-7-2010 addressed to appellant No.2 (Exh.P/3) along with the courier receipt dated 24-7-2010 (Exh.P/4). The grievance notice and the courier receipts were produced to prove the respondent's assertion in para 10 of his grievance petition that he had communicated his grievance to the appellant

8. There is no dispute that the respondent is a workman who was removed from service without holding any inquiry. FST, in view of the law settled by the Hon'ble Supreme Court rightly refused to exercise its jurisdiction in the absence of any statutory rules governing the service of FESCO employees leaving it to the respondent to seek his remedy before the proper forum. In the circumstances, the only forum available to the respondent, as a workman, was the Labour Court where he could challenge his removal from service through a grievance petition. It is argued by the learned counsel for the appellant that since the RSO, 2000 allows the removal from service without holding any inquiry, the learned Labour Court has failed to apply the provisions of RSO, 2000 by holding that the appellant's removal from service was illegal for want of inquiry. Such an argument cannot be accepted as once it is agreed that the Labour Court has the jurisdiction, the provisions of the Commercial and Industrial Employment (Standing Orders) Ordinance, 1968, including its Standing Order 15(4), must apply without exception instead of the provisions of RSO, 2000. There is no doubt that the individual grievances including the removal or dismissal from service brought before a Labour Court are adjudicated upon on the basis of and by reference only to the rights or service safe-guards guaranteed to the workmen under the provisions of the Commercial and Industrial Employment (Standing Orders) Ordinance, 1968. Obviously, the scheme of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, does not allow a Labour Court to apply any other law including RSO, 2000 while deciding a matter involving the individual grievance of a workman. This is also because the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, is a special law which is designed to govern the workmen exclusively. The Ordinance obliges the employer not to punish a workman for misconduct unless the misconduct is established through an impartial and independent inquiry in which the workman proceeded against is allowed to participate. Such special law must be allowed to prevail over the RSO, 2000 which has to be regarded as general law considering that it is much wider in scope as it applies generally to all persons regardless of whether they are workmen. In support, I may refer to I.-G. Frontier Corps v. Ghulam Hussain (2004 SCMR 1397) wherein the Hon'ble Supreme Court was pleased to hold that the RSO, 2000 was a general law which must give way to the earlier and special law i.e. Frontier Corps Ordinance, 1959. It follows that any removal or dismissal from service without inquiry as envisaged under the RSO, 2000 cannot be justified by reference to the Standing Order 15(4) ibid which provides that a workman cannot be removed from service for misconduct without holding a regular inquiry which means that a workman removed in violation of this service safe-guard is entitled to be reinstated. In the present case, the appellant's removal from service cannot be sustained as, admittedly, no inquiry was held into the alleged misconduct attributed to the respondent. As such, the respondent's reinstatement in service by means of the impugned judgment is not open to any exception.

9. In view of the foregoing discussion, there is no merit in this appeal which is dismissed. Parties are left to bear their own costs. HBT/6/PLT Appeal dismissed.