1981 PLP 506 (PLC)

7. In view of the adverse report of the Inquiry Officer, the res pondent issued a second show‑cause notice on 1st June, 1980 as to why he should not be dismissed from service. The applicant submitted a reply on 4th June, 1980, in which be repeated his contentions that the order of Senior Foreman (Boiler) to shift to Boiler Panel No. 1 from Panel No. 2 was neither lawful nor reasonable. He admitted that there was no justi fication for Senior Foreman (Boiler) to stop the overtime of Muhammad Maroof, who had previously been doing overtime. Applicant further stated that the Senior Foreman (Boiler) could have ordered Kanwar Sarwar Gill who was at that time, on duty on Panel No. 2 as Chargeman (Boiler), to go to Panel No. 1 instead of the applicant. That in ordering the applicant to move over to Boiler Panel No. 1 the object was to finish his claim to be promoted as Chargeman (Boiler), on Panel No. 2 on which he had been performing duties since 1st March, 1973. The said order was further illegal because the applicant who was junior Boiler Operator, cannot be ordered to do higher duties of Senior Operator, Chargeman (Boiler).

8. The reply of the applicant was not found satisfactory and after granting him an interview the applicant was dismissed from service on 28th June, 1980. Incidentally, it may also be mentioned that during the pendency of the enquiry it was alleged that the applicant did not attend duties on Boiler No. 2 from 4th May, 1980 onwards, although he was seen present in the premises. He was therefore, charge sheeted on 19th May, 1980, to which he submitted a reply that Kanwar Sarwar Gill was sitting constantly on his seat on Boiler Panel No. 2 and refusing to allow him to work and that he was told that he was being transferred to some other Boiler. His reply was not found satisfactory and another enquiry was instituted by Mazhar Hussain, Superintending Engineer (E)/Incharge, KESC who after examining witnesses for the Management including Kanwar Sarwar Gill and recording the statement of the applicant, found the charge established against the petitioner. However, since the petitioner had already been dismissed from service on 28th June, 1980, after the conclusion of the earlier enquiry conducted by Saeed Mahmood, the pro ceedings on this enquiry had become infructuous and were dropped.

9. The present application under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 was filed on 26th May, 1980. It con tained several prayers including prosecution for unfair labour practice, setting aside the order of dismissal and for his reinstatement and finally order of being fresh enquiry.

10. The respondent filed written statement denying the allegations made by the applicant and referred to several acts of insubordination and non‑co‑operation and enquiry proceedings conducted against the applicant. It was pleaded that the applicant was afforded full opportunity to defend himself and that pleas and justifications raised by him for disobeying the lawful orders of his superiors were invalid and without any foundation.

11. I have heard the applicant in person and Mr. Safiullah Siddiqui, learned Representative for the respondent. The applicant made the following submissions :‑ (a) The organization chart showed that every boiler was required to be attended and manned by Chargeman (Boiler). (b) Although there were 12 sanctioned posts of Chargeman (Boiler) only one has so far been appointed and the junior Boiler Opera tors were being compelled to do higher duties of Chargeman (Boiler) without officiating allowance or officiating orders. (c) The order of Senior Foreman (Boiler) Mr. Sadiq Ali directing the applicant to do duties of Boiler Panel No. 1 was illegal and un justified because Boiler Panel No. I was not unattended at that time, since Muhammad Maroof was already doing overtime duty at 3‑15 p. m. when the Foreman issued the order to the applicant. (d) In the past, not only Muhammad Maroof, but other Boiler Opera tors were doing overtime duty on Panel No. 1 even when he was present on Boiler Panel No. 2. (e) On 16th March, 1980 Mr. Kanwar Sarwar Gill was attending as Chargeman Boiler Panel No. 2 in addition to the applicant. Therefore, he could also have been ordered to go on Boiler Panel No. 2 to stop the overtime. (f) The object of the order was mala fide and intended to shift him from his old place of Boiler Panel No. 2 and finish his claim for promotion to Chargeman (Boiler) which he was performing since 1st March, 1973 on Boiler Panel No. 2. (g) It is illegal for Junior Operator to do duties of Senior Operator namely Chargeman (Boiler). (h) Only enquiry report was supplied, but copy of proceedings were not supplied although demanded by him and that it was falsely stated in the enquiry report that the applicant had not cross‑examined the Management witnesses when, infact, he had cross‑examined both the witnesses Sadiq Ali Foreman and Mr. Abdul Manan, Operation Engineer, at Great length who had signed these statements.

12. I have considered these submissions in the light of the facts and circumstances above mentioned, and I am inclined to agree with the main submission that the order issued to the applicant by the Senior Foreman was not legal in the absence of written officiating order. It was illegal and unreasonable for the Management to compel the applicant to do duties of Chargeman (Boiler) on Panel No. I without issuing him written officiating order. Panel No. 1 had to be attended by a Chargeman (Boiler) in accordance with the organization set up for the operation of the two Boilers.

13. Mr. Saifullah Siddiqui has not explained to my satisfaction why such officiating order could not have been issued and why it could not have been procured at that time. It was not difficult for Mr. Abdul Manan Khan, Operation ,Engineer, to have obtained a short order from the competent authority who must have been present at the Power Station before 3‑15 p. m. on that day. All that Mr. Siddiqui stated was that even if no written order was forthcoming, yet it was the duty of the applicant to have performed the duties of Chargeman (Boiler) because Boiler could not be left unattended. It is true in fact, the applicant could have done the duties of Chargeman (Boiler) even without such an officiating order, as he had been doing in the past. But to put the blame on the applicant, is to put a premium on laxity and in consideration on the part of the Management who knew very well that the organization set‑up relating to the operation of the two Boilers, required that each Boiler shall be man ned by a Chargeman (Boiler) for every shift. If the Management chose to let the post of Chargeman (Boiler) remain unfilled for reasons not satisfactorily explained, they did so. at their own risk. It cannot be legal for the Management to take advantage of their laxity in this connection. PARAGRAPH MISSED 511