1995 PLP 409 (PLC)

These are two connected appeals involving common question of law and facts and they stand disposed of by this common decision.

2. The respondents, in these two appeals, were working as Storemen Sindh Agricultural Supplies Organizations at Sukkur and (Sakrand) Nawabshah respectively. They were incharge of Bulk Depot Cell of Fertilizers for Agriculturists. They committed misappropriation and defalcation of fertilizer and sale proceed to the extent of Rs.2,16,000 and Rs.2,18,733 respectively. On discovery their cases were referred to Special Police Anti -Corruption. They were challaned in the Court of Special Judge, Sukkur, who released them on bail. During the pendency of the cases against them they were put under suspension by Deputy Director, Administration, SASO, under orders, dated 14‑5‑1988 and 18‑6‑1989 respectively. The respondents, after the lapse of nearly four years served the appellants with grievance notice and then filed the grievance petition against their suspension orders before the Labour Court No.VII, Sukkur. The Labour Court regarded suspension as a continuing grievance and by its decision directed re‑instatement in service of the respondent during the pendency of the cases against them before the Special Judge Anti‑Corruption, Sukkur. The reasons for the reinstatement were mainly the contravention of the provision of Standing Order 15(5) under which during a domestic enquiry the worker could be suspended only for four days at a time and the maximum period of suspension could not exceed twenty‑eight days. Against these decisions of the Labour Court directing appellant Organization to reinstate the accused in service, the Organization filed these appeals. This Tribunal stayed the orders of re‑instatement on deposit of bank benefits. The criminal cases before the Special Judge for embezzlement are still undecided.

3. The main argument advanced by the learned Advocate for the appellant is that the suspension provision under Standing Order 15(5) are in respect of domestic enquiries only. That these provisions are not exhaustive covering all type of suspension. The suspension not being, a penalty, no grievance petition could be entertained against such orders by the learned Labour Court nor could the Labour Court direct re‑instatement of such accused in the responsible post with back benefits.

4. In support of the above contention the learned counsel for the appellant has cited the case of Noor Muhammad Faizi v. District Manager, Government Transport Service, Dera Ghazi Khan and another reported in 1970 PLC

370. It was held: "The contention of the petitioner is, that the order of his indefinite suspension is wrong in law, as under the W.P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, he could be placed under suspension at a time only for a period of four days. The contention appears to have no force. Clause (5) of Standing Order 15 envisages suspension of a workman during the domestic enquiry. It does not cover all sorts of suspensions and especially suspension in a case, where a workman has been sent up to stand his trial before a Criminal Court. The case against the petitioner is now pending trial in the Court of the Additional District Magistrate, Dera Ghazi Khan. The charge against him is of a serious nature and involves moral turpitude. If proved, it would not entitle him to reinstatement in service. In such circumstances, in my view, it is open to the Management to suspend him for an indefinite period. To hold otherwise, would not only embarrass the Management, but endanger the working of the Service, in which he is employed to a considerable extent. I thus hold, that suspension under these circumstances is not covered by the Standing Orders Ordinance, which are not exhaustive and do not cover all types of cases. Thus, no illegality was committed and no violation of the provisions of section 37 of the W.P. Industrial Disputes Ordinance, 1968, took place, when the petitioner was suspended for an indefinite period. It can last till the case pending against him in the Criminal Court is decided. If eventually lie is acquitted, I am sure, he would automatically be re‑instated and paid for the period that he has remained under suspension."

5. The learned counsel has then argued that the jurisdiction of the Labour Court in respect of grievances extend only to infringement of any right of the worker. The suspension was neither a penalty nor infringement of any right. That power to suspend falls within the responsibility of the Executive to prevent such employees from exercising functions pending enquiry against them. In the case of Amanatullah v. Senior Vice‑President, National Bank, Zonal Office, Multan 1979 PLC 293 a petition was filed after two years of issuance of suspension order against the decision of the Labour Court on the ground that suspension was continuing wrong and cause of grievance arose when petitioner felt his patience exhausted. It was held by the Appellate Tribunal that the jurisdiction of the Labour Court extended only in respect of any right guaranteed by or under any law. Suspension was neither a penalty nor infringement of any right and it was within competence of employer to suspend an employee for indefinite period. Suspension could not, therefore, be challenged/challengeable before the Labour Court.

6. In the case of Mian Muhammad Hayat v. Province of West Pakistan PLD 1964 SC 321, it was held that power to suspend was within the responsibilities of Executive and suspension was a temporary severance from discharge of functions and not from being member of the service. Diminution of remuneration was not a penalty. Their Lordships of the Supreme Court held: "I am unable to regard the diminution of remuneration as sufficient to constitute an order of suspension as a penalty, for the simple reason that it is provided by the rules of the services, which every public employee accepts that in the event of suspension, his remuneration shall be at such a level. As to the question whether suspension is within the power of the Government, I entertain no doubt that it is within the responsibilities of the executive in respect of the public services, namely to maintain their standards by ensuring that there are no black sheep among them, and at the same time to maintain the efficiency of the public services and the confidence of the public in those services by eliminating persons whose conduct has tended to lower standards below those required, that there should be a power to ensure the temporary severance of a member of the public service whose conduct has been such as to demand an enquiry, from the discharge of his functions, until the enquiry has been completed. The power is relatable both to the general duty of maintaining high standards in the administration, as well as. to the requirements of service management. Therefore, I can see no difficulty in supposing that the executive authority acts within the pleasure of the Governor, when it suspends a public employee from the discharge of the duties of his office, pending an enquiry into his actions."

7. Order 15(5) of the Standing Orders Ordinance describes the procedure for punishment under a domestic enquiry into alleged misconduct of a workman when it limits the duration of period of suspension to be four days at a time with the maximum of twenty‑eight days, does not exhaust and does not curtail the powers of the Executive to suspend a person undergoing trial for an offence involving moral turpitude. The appellant Organization has, by now, acquired a reputation regarding allegations of embezzlement and frauds by its employees aimed at total humiliation of the Organisation. When an employee, after careful investigation by the Anti‑Corruption Organization, is challaned to stand trial before the Special Judge the appellants are not expected to retain in service such employees and pay them the prescribed salary until decision of the cases against them which may take years to conclude. If they are ultimately convicted the question of reinstatement will not arise but if they are honourably acquitted they can claim reinstatement with back benefits. In the event of their acquittal for want of evidence it would be open to the Organization to hold a departmental enquiry to decide their fate. Such cases are not covered by the provision o: Standing Order 15(5) limiting suspension to four days at a time.

8. I am, therefore, unable to agree with the contention of the learned Advocate for the respondent that the provisions of Standing Orders Ordinance are exhaustive in .case of worker's suspension and when there is no domestic enquiry, an employee cannot be suspended apart from Standing Order 15(5).

9. The decisions of the Sindh Labour Court NO.VII, Sukkur, in these cases, are accordingly set aside and the appeals are allowed. The amount deposited by the appellants as back benefits may be withdrawn by the appellants. H.B.T./2415/Lb.S Appeals allowed.