2025 PLP 81 (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 termination order dated 04-07-2020 passed by the respondents.

2. The counsel for the petitioner has stated that the petitioner was appointed as Lab Technician on 09-03-2001 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 respondents verbally requested the respondent's management for regularization of his services but they no heed and ultimately after serving grievance notice, he filed a grievance petition for his regularization before this Commission and the learned Commission directed the respondents not to pass any illegal adverse order qua service of the petitioner. That on 04-07-2020 the petitioner was terminated from service during the pendency of stay order. After that the petitioner served grievance notice to the respondents and filed a grievance petition for setting aside the impugned termination letter dated 04-07-2020. The counsel for the petitioner argued that the respondents violated the lawful orders of this Bench and terminated the services of the petitioner without observing of legal formalities as envisage in the provisions of IRA, 2012 as well as Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. He further stated that on dated 08-06-2022, the learned Commission has allowed the instant petition of the petitioner and reinstated him service of PTCL with all back benefits. The learned Single Member held in order dated 08-06-2022 that the petitioner was appointed directly by the PTCL vide appointment order dated 03-03-2001 where there is no mention of Ask Development in that order. After that the respondents assailed this order before learned Full Bench and the same was remanded vide order dated 25-09-2023 with the observation that the learned counsel for the parties have agreed that let the case be remanded to the trial court there the respondent shall implead Ask Development as party and trial court, if feel necessary to record the evidence after giving full opportunity to the parties and decide the matter preferably within two months. After that the case was fixed before this Bench of Commission on 30-10-2023 and notices, were issued to the respondents for further proceedings in the matter. That on the next date of hearing, the petitioner has filed an application under Order 1 Rule 10, C.P.C. for the grant of permission to implead Ask Development as respondents Nos.6 and 7 and the said application is allowed in the light of order passed by learned Full Bench of NIRC, Lahore. After that the petitioner has filed amended petition and notices were issued to the respondents Nos.6 and 7 Ask. Development for filing written reply. That on 03-01-2024, the counsel for respondents Nos.6 and 7 appeared on behalf of Ask Development and stated that he will submit written reply on the next dated i.e. 09-01-2024. That on next date of hearing i.e. 09-01-2024, no one has turned up on behalf of the respondents Nos. 6 and 7 (Ask Development) and last opportunity was granted to the respondents Nos. 6 and 7 for filing Vakalatnama and written reply and the case was adjourned to 16-01-2024. That on 24-01-2024; one again no one has turned up on behalf of the respondents Nos.6 and 7 (Ask Development) despite issuance of several notices and provided them so many opportunities for filing their written reply, hence, their right for filing written reply was closed and after that the case was fixed for final arguments. Hence, the instant petition.

3. In this scenario, the counsel for the petitioner prayed that the impugned termination order dated 04-07-2020 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 respondents have filed written reply and have controverted all of the averments of the said grievance petition, on the ground that said grievance petition is not maintainable. The counsel for the respondents has stated that there is no contract of service of relationship of employer and employee between the petitioner and the respondents Nos.1 to 4 (PTCL). Hence, the petition against the answering respondents is not maintainable and is liable to be dismissed. He further stated that the petitioner is estopped by his words and conducts, as per contents of the petition; petitioner is in permanent employment of respondents Nos. 6 and 7 by virtue of appointment letter dated 07-02-2017, as such after accepting the same petitioner cannot claim to be in employment of PTCL. He further argued that the petitioner alleged in petition, to be employee of PTCL, whereas appointment letter dated 07 -02-2017, which has been concealed by the petitioner clearly demonstrates that the petitioner with free will and consent signed appointment order with the respondents Nos.6 and 7 (Ask Development) who terminated the services of the petitioner being its actual employer. In this regard, the counsel for the respondents relied upon 2015 PLC (C.S.)

195. He further stated that the PTCL has sourced out its certain departments to independent service providers and to this effect; agreement has been executed between PTCL and respondents Nos. 6 and 7 (Ask Development). He further agitated that from the perusal of copy of appointment order, it transpires that there is no relationship of employer and employee between answering respondents and the petitioner. There is nothing on record to demonstrate that the petitioner is working in PTCL, thus grievance petition against PTCL in not maintainable.

5. The counsel for the respondents Nos.1 to 4 (PTCL) 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 the petitioner was appointed on 03-03-2001 as Lab Technician and the appointment letter of PTCL is annexed with the petition as Annex. "A" and the said appointment letter has been signed by the Assistant General Manager (S&E) M.T.R Multan. The appointment letter dated 03-03-2001 of the petitioner also shows that the petitioner was directly appointed by the PTCL where there is no mention of Ask Development in that order. Therefore, the petitioner is actually employee of the PTCL and not to Ask Development. The Ask Development is dummy a contractor and having no authority over the petitioner and has wrongly terminated the services of the petitioner. The petitioner served more than 15 years with the respondents PTCL, it is very odd situation that the petitioner terminated from service by the Ask Development on 11-05-2020 and' how is it possible. The letter dated 07-02-2017 by the Ask Development and Employee is based on mala fide and it has no legal status. It is also evident from the record that the petitioner has directly received his monthly salary from PTCL, the salary slip of the petitioner of December 2010 clearly shows that the petitioner received his monthly salary amounting to Rs. 12,196/- by the PTCL. It shows that the petitioner was on the pay roll of the PTCL and worked under the management of the PTCL not of Ask Development. Record also shows that on dated 23-12-2005, a committee has been made for investigation of daily wagers employees and the said committee of PTCL verified the 34 employees and the petitioner was also included in the said list of the employees as mentioned his name in serial number 34 in the list and the said list has been verified by the investigation committee consisting upon three members of PTCL.In this regard, the August Supreme held in 2013 SCMR 1253 titled Fauji Fertilizer Company Ltd. v. NIRC and others. "

Ss. 2 (viii) & (xxviii)

Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1969), S.2(C), (f) & (h)

Contract between company and contractor for supply of labour

Whether status of employees supplied by the contractor, would be that of employee of company

Test"

9. Record also shows that the petitioner was terminated from service without issuing any show-cause notice and without holding any inquiry. It is established that the petitioner has been terminated from service without observing prescribed procedure as provided under the provisions in Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Therefore, it is held that this action of the respondents management was illegal and without jurisdiction and not sustainable in the eyes of law.

10. The Standing Order 15(4) of the Industrial and Commercial Employment (Standing Orders), Ordinance, 1968 is as under:- "No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer's and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and the employer shall institute independent in quirks before dealing with charges against a workman." In this regard, the August Supreme Court of Pakistan in case Hafeez Shah and others v. UBL reported in 2001 SCMR-P-931 has held as under:- "Provisions of Section 15(4) of West Pakistan and Commercial Employment (Standing Orders); Ordinance, 1968 were mandatory and their non-observance would vitiate the proceedings. The Proceedings with regard to dismissal of employees having been conducted in violation of natural justice and law, same could not be sustained"

11. It is pertinent to mention here that the instant case has been remanded by the learned Full Bench vide order dated 25-09-2023 to decide the same preferably within two months and further directed to implead Ask Development as party. The orders sheet of the petition shows that the Ask Development impleaded as party (Respondents Nos.6 and 7) and several notices issued them to file their written reply but they showed their lack of interest in the matter and deliberately lingering on the matter and on dated 24-01-2024, the right of filing written reply by Ask Development was closed due to their sickness.

12. According to the NIRC (Procedure and Functions), 2016:- "For the expeditious disposal of the business before the Commission, it may direct any examination or cross-examination or re- examination to be cut short or dispensed with." So on the verbal request of counsels for the parties for the expeditious disposal of the case, this Commission is going to dispense with the parties from recording of evidence in the matter, because labour laws are clear to provide fair opportunity to the employee to explain the circumstances alleged against them and the employer shall institute independent inquiries. The learned Full Bench of NIRC, Lahore Bench also mentioned in the order dated 25-09-2023 that the trial court if feel necessary to record evidence of the parties and decide the matter preferably within two months. In my opinion, this case does not require further evidence as it is very simple case and everything is clear in it and during the course of arguments, counsels for the parties were agreed to decide the case without recording of evidence.

13. For what has been discussed above, I accept the instant grievance petition and set-aside the impugned termination from Service letter dated 04-07-2020 issued against the petitioner being illegal and without justification. The respondents are directed to reinstate the petitioner in service from the date of his alleged termination from service letter dated 4-7-2020 with all back benefits. There is no order as to costs. File be consigned to the record room after its due completion. MQ/4/NIRC Petition allowed.