2025 PLP 168 (PLC)

MUNAWAR HUSSAIN TOORI, MEMBER.

The counsel for the petitioner has filed the instant petition under section 33 of the IRA, 2012 for setting aside the impugned dismissal letter dated 26-08-2018 passed by the respondents.

2. The counsel for the petitioner has stated that the petitioner was appointed as Electrician on 06-12-1994 in the respondent's establishment. Thereafter, his post was re-designated as Sub-Engineer and then promoted as Senior Associate Engineer in the respondent's establishment and by virtue of duties performed by him, he falls within the definition of workman as defined under the IRA, 2012 as well as under the provisions of Industrial and Commercial Employment (Standing Order) Ordinance, 1968 and performed the work continuously without any break with the entire satisfaction of his superiors. That the petitioner was also an active member of SNGPL Employees Union and every month, the union fund was deducted from his salary. He further stated that the petitioner was transferred from Sahiwal to Multan vide letter dated 04-06-2013, feeling aggrieved, the petitioner filed a petition before this Bench of Commission, wherein the learned Member NIRC pleased to suspend the operation of the said transfer letter dated 04-06-2013 vide order dated 08-07-2013. After that the learned Member NIRC, dismissed the stay application vide order dated 20-08-2015. That after vacation of stay, the petitioner was assigned duties at D.G. Khan by the respondents and in compliance thereof, the petitioner joined as D.G. Khan. That on dated 16-07-2014, the respondents issued charge on account of "upon transfer from Sahiwal to Multan/D.G. Khan, the petitioner did not report for dusty at new place of posting, as such absconded since 05-06-2013" an inquiry was conducted and the inquiry officer has not found the petitioner guilty of charges, vide report dated 06-04-2015. After lapse of three years from the date of vacation of stay, the respondents have dismissed the petitioner from service vide order 26-06-2018. After that the petitioner served the grievance notice to the respondents through registered post but no reply has been taken place thereupon. Then, petitioner has filed instant grievance petition before this Commission on 30-07-2018 for his redressal. He further stated that the respondents have no authority to treat the period from 05-06-2013 to 03-09-2015 as absence from duty. During said period, the order of NIRC dated 08-07-2013 was in field, which was vacated on 20-08-2015. Be treating the period as absent from duty by the respondents, tantamount override the judicial order. It is settled law that Executive order cannot override judicial order. That the impugned dismissal order has been passed after four years from the issuance of charge sheet.

3. The counsel for the petitioner prayed that the impugned dismissal letter dated 26-08-2018 may kindly be declared illegal, void, ab initio and nullity before the eyes of law. Further contends that if the impugned termination order not suspended, the petitioner will suffer an irreparable loss and legal injury.

4. On the other hand, the counsel respondents has stated that the job of the petitioner as a Senior Associate Engineer was managerial and not clerical, so, the petitioner does not fall under the category of workman as defined in the Industrial and Commercial Ordinance, 1968 and IRA, 2012, hence cannot invoke the jurisdiction of the learned Commission. He further stated that the petitioner himself admit in his petition and affidavit that he was working as Senior Associate Engineer at the time of his termination. He further stated that the petitioner was charge sheeted on 16-07-2014 for committing of gross mis-conduct and thereafter a regular inquiry was held against him and he was afforded full opportunity to defend himself. He further added that the inquiry was held and due process of law was followed and the inquiry report submitted the inquiry officer he was held guilty of the charges as contained in the above said charge sheet.

5. The counsel for the respondents prayed that the instant petition is without merits therefore, the same may be very kindly be dismissed in the interest of justice.

6. Argument heard by the counsel for the parties at considerable length and record perused.

7. During arguments, both the counsel for the parties have reiterated the same facts as mentioned in their pleadings.

8. It is admitted from the record that initially the petitioner was appointed as Electrician on 06-12-1994, thereafter his post was re-designated as Sub-Engineer and then promoted as Senior Associate Engineer. Record also shows that the petitioner was an active member of Employees Union SNGPL. The salary slips of the petitioner Ex.P/2 shows that the union dues deducted from his salary. Record reveals that no documentary evidence has been produced by the respondents regarding nature of duties of the petitioner. Respondents are failed to produce any suitable material which shows that the petitioner has power of Managerial post. Record reveals also that two inquiry reports were submitted by the respondents against the petitioner. The first inquiry report dated 16-07-2014 was submitted by the petitioner as Mark-F which was produced by the respondents on 12-04-2016 before this Commission. The second inquiry report dated 14-07-2015 was submitted by the respondents as Ex-R/3 in the statement of Mr. M. Naveed Akhtar, RW-1. After gone through the cross-examination of the only respondents witness Mr. M. Naveed Akhtar, he admitted that the inquiry report has been submitted in the Commission. I don't know if the respondents have filed inquiry report in the Commission. I don't know that the reports of previous inquiry as well as the present inquiry proceedings are available on the record. I don't know if respondents previously filed inquiry report on 12-04-2016 in NIRC Lahore Bench as similar is the position with regard to the reference number of the said case dated 12-04-2016 filed in NIRC Lahore Bench on 30-06-2020 in the Bench of the Commission. After gone through the cross-examination of PW-1 Mr. Khalid Mehmood, he admitted that I was issued charge sheet on 16-07-2014, which is before me and is Mark-E. It is admitted from the record that the charge sheet was issued on 16-07-2014 and petitioner was dismissed from service on 26-08-2018. After lapse of 3/4 years from the date of vacation of stay order dated 20-08-2015, the respondents have dismissed the petitioner from service vide order 26-06-2018. It is established from the record that the respondents have submitted two fake and ambiguous inquiry reports before the learned Commission and tempered and change the record which shows mala fide on the part of respondents. It is also admitted from the record that the inquiry officer has not appeared before the learned Commission. In this regard, 2015 PLC 33 held that:- "

Ss.46(3) & 47(3)

Appeal

Termination of service --Reinstatement

Grievance petition

Services of the employee were terminated on the allegations of general nature

Detailed inquiry report was not exhibited in evidence and inquiry officer did not appeared in witness box to record his statement in support of inquiry held by him

Contention of employee was that the impugned order was passed by the incompetent authority without having any lawful jurisdiction, therefore the same was void, an-initio

Validity

Termination order was passed by incompetent authority

Disciplinary proceedings were corum non-judice and void ab-initio on account of such illegal proceedings

Labour Appellate Tribunal upheld the reinstatement order passed by the Labour Court and dismissed appeal accordingly".

9. For what has been discussed above, I accept the instant grievance petition and set-aside the impugned dismissal letter dated 26 08-2018 issued against the petitioner being illegal and without justification. That the respondents remained unsuccessful to prove that petitioner is not a workman. So, they are directed to reinstate the petitioner in service from the date of his alleged dismissal from service letter dated 26-08-2018 with all back benefits. There is no order as to costs. File be consigned to the record room after its due completion. MQ/3/NIRC Petition allowed.