1981 PLP 472 (PLC)

Kamal Mansur Alam for Respondent. Date of hearing : 12th November, 1980. The applicant Mr. Sarfraz Ahmed Mirza, at the time of his removal, was serving as Deputy Manager, Admn. and Personnel, in the Central Administration, Office of the Respondent, Pakistan Steel Mills Corpora tion. The employment of the Respondent has been declared as an Essential Service under section 3 of the Pakistan Essential Services (Main tenance) Act, 1952. Prior to his promotion as Deputy Manager, Ad ministration, the applicant was working as Assistant Manager (Adminis tration) in the Metallurgical Training Centre. On 4th August, 1979, the applicant submitted a request to the General Manager (Adorn. and Personnel) that in view of his technical qualifications, he may be posted in the existing vacancy of Deputy Manager in the Metallurgical Training Centre, which according to him existed ‑at ‑ that time. This request was not acceded to and the applicant was accordingly informed by General Manager (A & P.) by his letter, dated 27th August, 1979. Again on 30th October, 1979 the applicant submitted another application to the Director (A & P) repeating his request for being posted as Deputy Manager Technical in the Metallurgical Training Centre. About six weeks there after the applicant received a memo. dated 17th December, 1979 that his services were dispensed with, with immediate effect in pursuance of clause (c) of paragraph 2 of his letter of appointment. dated 27th May. 1976 and that he would be paid three months pay in lieu of notice. He was directed to relinquish the charge of the Deputy Manager (Adorn.) on the same day (A. N.).

2. After submitting a grievance notice to the Chairman, dated 19th December, 1979, and as it was rejected, he approached the Commission with the present application under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 praying for issue of directions that his removal from service in terms of conditions of appointment was illegal and that he may be reinstated with full back benefits.

3. Since no visible or ostensible reason for termination of the services of the applicant was apparent from the notice of termination or the written statement filed by the respondent, I directed Mr. Altaf Mahmud, Manager Personnel to appear and to produce the service record of the applicant. In compliance with my directions, Mr. Altaf Mahmud has come and has produced the service Record, which however, did riot show precise reason for termination. However, on questioning him, as to what was the reason for termination of the employment of the applicant, he categorically stated that apart from the power to terminate the services contained in the letter of appointment, there was no other reason for his termination.

4. Section 5 of the Pakistan Essential Services (Maintenance) Act, 1952 provides that it is an offence for an employer to discontinue employ ment of any person engaged in the employment which has been declared to be an Essential Service under the said Act, without reasonable excuse. Mr. Kamal Mansur Alam, learned counsel for the respondent stated that the right conferred on the employer under letter of appointment to terminate the services by giving three months notice, is itself a reasonable excuse for discontinuing the employment and in this connection he refer red to Explanation 2 to section 5 which allows the employee to terminate his employment in accordance with the terms of appointment on giving notice to his employer if the employer consents to the termination. I have considered this submission, but in my opinion, it has no force.

5. The object of making the employment of Pakistan Steel Mills Corporation, as essential employment under the Pakistan Essential Services (Maintenance) Act, 1952 is to provide for security of maintenance of supplies or services under section 3 (2) (b) of the Act. The Act imposes an obligation on the employer as well as on the employee. Neither employee can abandon his employment or absent himself from work without reasonable excuse, nor can the employer discontinue the employment of such persons without reasonable excuse. The reasonableness of an excuse is clearly justiciable by the Specified Authority, which in this case, is the Commission. The contravention of section 5 is a criminal offence punishable with imprisonment and or fine under section 7 (1) of the Act. Although the Act does not provide for reinstatement of an employee, whose services have been discontinued without reasonable excuse in defiance of section 5 of the Act, the power of the Commission as Specified Authority, to regulate the conditions of service of such employees by ordering his re‑instatement can be invoked. The same view was taken by Mr. Mamoon A. Kazi, former Senior Member of the Commission in Sultan Ahmad Geelani v. Karachi Electric Supply Corporation, Karachi in case No. 18 (118)/76.

6. I am satisfied that respondent has failed to establish excuse, much less reasonable excuse' for terminating the services of the applicant, despite the provision in the letter of appointment entitling the employer to do so by giving notice. The order of termination of the services of the applicant is accordingly set aside. The respondent shall re‑instate the applicant in service forthwith in the same post to which he was posted ad the time of his termination. The question of payment of salary for the intervening period, since the termination of his services, shall be decided, according to the Service Rules of the respondent‑Corporation, if any. The application is accordingly allowed.

7. The above directions shall be sent to the Interior Division for Gazette Notification. Petition accepted.