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Petitioner: GHULAM MUSTAFA VS Respondent: ULFAT HUSSAIN QURESHI, ASSISTANT CONTROLLER
Court Name: Lahore High Court Judge(s): Dilawar Mahmood Title: GHULAM MUSTAFA vs ULFAT HUSSAIN QURESHI, ASSISTANT CONTROLLER Case No.: Writ Petition No. 2943 of 1978 Date of Judgment:1979-06-29 Reported As: 1979 PLC 446 Result: Petition accepted
JUDGMENT
JUDGMENT Ghulam Mustafa, petitioner, was employed as a Stenographer at Headquarters Office of Pakistan Television Corporation Ltd., Rawalpindi. Subsequently the post of Stenographer was re-designated as Secretary and the petitioner continued to work as such till the impugned order was passed. The petitioner belonged to the category of employees designated as belonging to Group-5 in the service of Pakistan Television Corporation Ltd. This is an admitted fact and has not been denied by the respondents. The petitioner was Joint Secretary of Pakistan Television Headquarters Employees' Union, Rawalpindi. He came to Lahore on 12th of February, 1978 in order to attend a Convention of all Pakistan Television Employees' Union which was being held there. He left Rawalpindi on 11th February 1978, after applying for casual leave in writing with effect from 12th of February, 1978. The petitioner along with other office-bearers of the Union called upon Lt.-Gen. Sawar Khan, Martial Law Administrator, Zone A, Punjab, in connection with their grievances. He along with his other colleagues remained with the Martial Law Administrator, Zone A, from 5-00 p.m. To 8-00 p.m. While the petitioner and his colleagues were still discussing their affairs with the Martial Law Administrator, information reached Government House that some workers of Lahore Television Station had taken over the T.V. Station. According to the petitioner, he was not a party to the said take-over and that whatever had been done by the workers at the Televi--sion Station, Lahore was unauthorised and was in fact an attempt to sabotage the negotiations which were going on between the Union and the Authorities. The petitioner had made these specific assertions in paragraph 5 of the Writ Petition. The respondents, however, have denied them for want of knowledge which is hardly a proper reply. Thus the contentions of the petitioner in this paragraph may well be true and are taken as such.
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2. During the course of negotiations with the Martial Law Adminis--trator, Zone A, the petitioner and his colleagues were directed to submit their demands in writing to the Martial Law Administrator. The peti--tioner along with his colleagues accordingly went to Lahore T. V. Station. They reached the said T.V. Station at 9.00 p. m. The petitioner was promptly arrested along with other Union leaders. The petitioner was, however, bailed out by order of the Duty Magistrate, on 8th March, 1978. After his release, the petitioner reported to his Headquarters, Rawalpindi, for duty on 11th March, 1978. On the same day, the petitioner was serv--ed with a letter (Annexure `A' of the Writ Petition) which was signed by Deputy Director, Administration and Personnel. The petitioner was advised to stay at his residence till further orders. He was also directed not to visit any of the offices of the Heaquarters at Rawalpindi. 3. Thereafter a charge-sheet was served upon him on 11th April, 1978 levelling the two charges of misconduct. The first charge alleged that the petitioner was absent without leave for more than 10 days and that he left P. T. V. Headquarters, Rawalpindi, on 12th February, 1978 by simply sending application for casual leave without awaiting its approval and thus remained absent upto 10th March, 1978 and came to rejoin his duty on 11th March, 1978 when he was advised to remain at his residence. The second charge related to subversive activities. It was alleged that the petitioner left P. T. V. Headquarters, Rawalpindi on 12th February, 1978 and went to Lahore where he joined the Leaders of the Union who were engaged in planning illegal take-over of T. V. Centre and it was as a result of his association with these subversive activities at Lahore that he was arrested by the Police on 16th February, 1978 and was later on granted bail. 4. On the same day another order was passed whereby he was placed under suspensionnitially for a period of 4 days. This order was renewed every four days. This last order of suspension is still in force. The last order was passed in December, 1978. The petitioner is still under suspension. He is, however, getting subsistence allowance equal to 50% of his basic pay. According to Annex. J, Lahore Office informed the Head--quarters Office of P. T. V. On 25th February, 1978 that the petitioner and others had been arrested. 5. It may be mentioned here that the criminal case relating to the so-called subversive activities of the take over of Lahore T. V. Station was withdrawn on the directive of Martial Law Administrator, Zone-A, and the petitioner was acquitted on 24th April, 1978. 6. The petitioner after his acquittal moved the Director, Administra--tion and Personnel, respondent No. 1, praying that since the petitioner has been acquitted of the criminal charge against him, he may be re-instated and the charges against him may be dropped. The said respondent, however, had taken no action in the matter and the petitioner continued to be under suspension. 7. The petitioner has assailed his suspension and the charge-sheet as well as the proceedings before Mr. Zahid Mansoor, the Inquiry Officer, by means of this Writ Petition. This Court vide its order dated 15th April, 1978 directed that the proceedings before the Inquiry Officer may continue but no final order shall be passed by him. This order is still intact. Mr.Aftab Ahmad, learned counsel for the respondents submitted that the Inquiry Officer has completed the proceedings but he has not announced the final order in terms of the order of this Court mentioned above. 8. Mohammad Babar Zaman (petitioner in Writ Petition No. 3333/S/78 is a News Producer belonging to Group-6. He was served with a charge-sheet on 16th April, 1978. He was suspended on the same day, He continues to be under suspension. He was accused of, inter alia, tak--ing part in subversive activities at Lahore T. V. Centre on 16th February, 1978. His name was mentioned in the F. I. R. (Annexure C) which was lodged by Administrative Manager. P. T. V. Lahore. It was also alleged that he absented himself from duty without authority from 17th February, 1978 to 20th February, 1978. Three days salary was deducted on 28th February, 1978 from the salary payable to him. 9. Mohammad Naseem Siddiqui (Petitioner in Writ Petition No. 3043/ S/78) is a Make-up Artist belonging to Group-6. He was also charge--sheeted on 16th April, 1978. He was suspended on the
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same day. He continues to be under suspension. It was alleged, inter alia, that he took part in subversive activities at P. T. V. Centre, Lahore from 17th February to 20th February, 1978. Like other petitioner he is getting subsistence allowance equal to 50 % of his basic pay. Three days salary i.e. From 18th February, 1978 to 20th February, 1978 was deducted from his salary. This deduction was made on 28th February, 1978. Deduction was made as according the employer to the petitioner was absent from duty without leave. 10. Mr. 2ahoor Nazim, (Petitioner in Writ Petition No. 2954/S/78) is a Calligraphist belonging to Group-5. He was charge-sheeted like his other colleagues on 16th April, 1978. It was alleged, inter- alia, that he had taken part in subversive activities in the Lahore T. V. Centre on 16th February, 1978. He was suspended on the same day. Three days salary, i.e. From 18th February to 20th February. 1978, was deduc--ted from his salary. This deduction was made on 28th February. 1978. His name is mentioned in the F. I. R. Dated 16th February, 1978. (Annexure R/2). It was lodged at Police Station Qila Gujjar Singh by Administrative Manager, P. T. V., Lahore. 11. Mr. Ismail Taj (petitioner in Writ Petition No. 3780/S/78) is a Cameraman belonging to Group-7. He was charge-sheeted on 16th April, 1978. It was alleged, inter alia, that he had struck work illegally and that he did not attend office from 16th February, 1978, to 20th February, 1978, in sympathy with Union Leaders, who were arrested on 16th February, 1978. He was suspended on the same day. He continues to be under suspension although he is getting subsistence allowance equal to 50% of his basic pay. 12. Learned counsel for the petitioner has assailed the charge-sheet, the suspension and the entire proceedings before the Inquiry Officer on a number of grounds: Firstly, it is submitted that under the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968, proceedings could be initiated against the petitioner within one month of the alleged misconduct. In the present case, however, the alleged misconduct had taken place on the 16th of February, 1978, while the charge-sheet was served upon the petitioner on 10th April, 1978, clearly beyond the period of one month as contemplated in the afore--mentioned provision. Secondly, it is submitted that the suspension order, at the most, could be for a maximum period of four weeks as laid down in Order 15 (5) of the aforesaid Standing Orders Ordinance, 1968. Thus the suspension of the petitioner in the present case is illegal and void ab initio. Thirdly, it is submitted that according to Regulation 13-03 of the Regulations framed by the P. Tv. Corporation, Officer competent to charge-sheet the petitioner in the instant case is either the Head of the Division or the Managing Director of the Tv. Corporation. It is contended that there is no order for the issuance of the charge-sheet under the orders of Managing Director. At least no such order has been placed on the file of this Court. Fourthly, it is submitted that the conduct of the petitioner complained of in the present case does not come within the mischief of "misconduct" as defined in Order 15 (3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. It is submitted that there is nothing on the record of this case to show that the petitioner was absent from duty wilfully for more than 10 days. It is established on the record that the petitioner was arrested on 16th of February, 1978 and was released on bail on 8th March, 1978. He reported for duty on the 11th March, 1978. In fact this pint is noticed in the second charge levelled against the petitioner. Thus the petitioner was prevented from attending his duty by circum--stances beyond his control. It is submitted that even the orders of suspension have not been passed by competent authority. Fifthly, it is submitted that the second charge is vague. The particulars of the subversive activities have not been supplied. Lastly, it is submitted that the petitioner is being given discriminatory treatment in so far as other "workmen" who were involved along with the petitioner namely, Messrs Muhammad Younis, Manzoor Hussain and Qaisar Abbas, have not even been charge-sheeted and the petitioner has been victimized for his Trade Union Activities.
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13. Learned counsel for the respondents on the other hand submit--ted that the employees of Pakistan Television Corporation were declared to be members of the Essential Services by means of Government Notification dated 23rd June, 1975, issued under section 3, subsection (3) of Pakistan Essential Services (Maintenance) Act, 1952 and that Labour Laws would cease to be applicable to the employees of the concern from that date. According to him the laws applicable to the petitioner on 23rd, June, 1975, were the Regulations of the Pakistan Television corporation which were framed by the Corporation itself and the Pakistan Essential Services (Maintenance) Act, 1952 and the Rules of 1962 under the said Act. Thus the guarantees under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 were no longer available to the petitioner. It is further submitted that the Rules framed by National Industrial Relations Commission under section 6 of Pakistan Essential Services (Maintenance) Act, 1952 were notified by the Government in the Gazette of Pakistan (Extra--ordinary) on 25th of May, 1978. They were given retrospective effect by another Notification issued on 28th August, 1978 and were made effective from 25th January, 1978, following the addition of section (1-A) to section 6 to the Pakistan Essential Services (Maintenance) (Amendment) Ordinance, 1978. According to the learned counsel, case of the petitioner was covered by these Rules and none others. Learned counsel for the respondents submitted that Writ Petition was premature as suspension was not a punishment and that mere service of a charge-sheet is not a punishment under the Standing Orders Nos. 15 (4) and 12 (3), and that an employee could only got to a Labour Court after orders of dismissal has been passed by an employer. No such order has been passed in this case. Writ Petition was pre-mature 'and deserved to be dismissed on this ground alone. Learned counsel then argued that Writ Petition was not an appropriate remedy in case of a Private Limited Company like Pakistan Television Corporation, where the employees do not have any Constitutional safeguards available to them. According to the learned counsel, Pakistan Television Corporation was a private Corporation. It was not performing any function in connection with the affairs of the Province or the Federation and that no Writ could issue to it, and that the law of "Master and Servant" would be applicable in the case. Lastly it was submitted that even if the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was applicable to the case of the petitioner the charge-sheet could be issued within one month of the date of the alleged misconduct or of the date on which the alleged misconduct came to the notice of the employer. According to the learned counsel, the Pakistan Television Corporation and the respondents came to know of the alleged misconduct in this case on 6th April, 1978, when the Managing Director ordered the issuance of the charge-sheet to the petitioner and others. Thus it was within time. 14. Before embarking upon the adjudication on merits it would be appropriate to dispose of the preliminary objection raised by learned counsel for the respondents to the jurisdiction of this Court. It is contended by the learned counsel for the respondents that Pakistan Television Corporation being a Corporation was not amenable to Writ jurisdiction of this Court under Article 199 of the Constitution of Pakistan. This question came up for adjudication before a Full Bench of this Court in Muhammad Aslam Saleemi v. Pakistan Television Corporation (PLD 1977 Lah. 852). The following conclusion at page 871 is reproduced below:----- "We have given our anxious thought to the matter and have carefully considered all the above- noted contentions. We feel that the learned Deputy Attorney-General was justified in omitting to assert that the two Corporations are "persons performing function in connection with the affairs of the Federa--tion, a Province or a Local Authority", because respondent No. 2 is clearly a Statutory Corporation, which is fully control--led by the Government. Similarly, although respondent No. 1, i. e. The Pakistan Television Corporation is incorporated as a Limited Company, under the Companies Act, 1913, yet the Government has the controlling shares in it from its very incep--tion and it is fully controlled and run by it. In support of the fact that the two Corporations are controlled by the
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Govern--ment it may be mentioned that no Radio or T. V. Station can be installed without the prior permission of the Government as required by section 3 of the Wireless Telegraphy Act, 1933, it is the Government which appoints the General Manager or the Managing Director, respectively, of these two Corporations and their salaries are paid from public exchequer. Moreover, the Government levies fees for issuing licences for keeping radio and television sets and also has the power to make rules under section 10 of the above-mentioned Act of 1933. These rules have actually been made. The rules relating to television are known as the Television Receiving Apparatus (Possession and Licensing) Rules, 1970. In these Rules the Government has provided for levying of fees for issuance of licences for the possession of television sets on the payment of a specified fee. The contravention of the said provision (Rule No. 3) has been made punishable under rule 15 of these Rules. Moreover in a Government Publication titled "The Budget, 1976-77", it is stated at pages 194 and 351 respectively, that a demand of Rs. 5,75,00,000 was made and sanctioned in favour of the Pakistan Broadcasting Corporation and a demand of Its. 63,83,000 was sanctioned for "Investment in Pakistan Television Cor--poration for repatriation of foreign equity." Although the actual repatriation of the foreign capital has not yet been effect--ed but the intention to do so is quite evident from the provision of the funds for that purpose, in the annual budget. It is also noteworthy that clause (f ), section 10 (1) and subsection (2) of section 10 of the Pakistan Broadcasting Corporation Act (XXXII of 1973) and Article 111 (3) of the Memorandum of Association of the Pakistan Television Corporation Ltd.. Read with the Provisions of Wireless Telegraphy Act, 1933 show beyond doubt that both the Corporations are being controlled and run under the directions of the Government. In this connec--tion it is also pertinent to refer to Article 159 of the Constitu--tion. This Article, read with items Nos. 7 and 31 of the Federal Legislative List, provides that broadcasting and telecast--ing are Federal subjects. Article 253 (1) of the Constitution provides that the Government can take over and run any such Corporations. The respondent-Corporations are clearly public services and, as shown above, they are being controlled and administered by the Government. As a result, we feel that the learned Deputy Attorney-General was justified in not pressing that the respondent-Corporations are not performing functions in connection with the affairs of the Federation, a Province or Local authority." At page 883 it was observed :---- "The present Corporation squarely fulfils the aforesaid require--ments and, looked at from whatever angle, it is manifestly a public utility Corporation or to be exact a person performing functions in connection with the affairs of the Federation within the meaning of this concept and amenable to writ jurisdiction as contemplated in Article 199 of the Constitution." Respectfully following this Full Bench Judgment of this Court I hold that Pakistan Television Corporation was performing functions in connection with the affairs of the Federation and was amenable to the jurisdiction of this Court under Article 199 of the Constitution of Pakistan. The objection, therefore, has no force and is overruled. 15. The contention of the learned counsel for the respondents that the ordinary law of "Master and Servant" is applicable to the petitioner has no relevance. The mere fact that a person is not a civil servant of the State and is not entitled to Constitutional guarantees would not always lead to the result that he is governed by the ordinary and general law of "Master and Servant". Wherever there are statutes or statutory rules governing the relationship between an employer and employee and there are restrictions placed in such provisions which are contrary to the e concept of the ordinary law "Master and Servant", it is those statutory provisions and rules which would apply and not the so-called general law of "Master and Servant". In such a case the employer would have the power to terminate the employment and initiate other proceedings only in the manner and in the circumstances in which the statute or the rules clothe it with authority to do so. Admittedly parties
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in the case are governed by the statutory rules. Therefore the ordinary law of Master and Servant would not be applicable in the case. Reliance in this regard is placed upon Abdur Razzaq v. WAPDA (PLD 1973 Lah. 188) and Muhammad Ashraf Parvaiz v. Agricultural Development Bank of Pakistan (PLD 1973 Lah. 425). 16. Employees of Pakistan Television Corporation were declared to be members of Essential Services for the first time by means of Ministry of Interior's Notification No. S. R. O. 659(1)/75, dated 23rd June, 1975. This notification had been issued in the exercise of powers conferred on the Federal Government by section 3, subsection (4) of the Pakistan Essential Services (Maintenance) Act, 1952. The Notification was to remain in force for a period of six months. However, by subsequent Notifications which are being issued after every six months the employees of Television Corporation continue to be governed by section 3, subsection (3) of the Pakistan Essential Services (Maintenance) Act, 1952. The last Notification was issued on 19th December, 1978 and commenced. With effect from 23rd January, 1976 for a further period of six months. Pakistan Television Corporation had framed its own rules and regulations which covers the terms and conditions of its employees. These were merely rules for domestic use of the Corporation. They had no statutory force. In the year 1968, however, West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was issued which provided a number of rights and privileges/ protections to a workman. It is applicable to every industrial or commercial establishment wherein 20 or more workmen were employed. Commercial establishment has been defined in the following manner :--- "Commercial establishment" means an establishment in which the business of advertising, commission or forwarding is conducted, or which is a commercial agency, and includes a clerical department of a factory or of any industrial or commercial undertaking, the office establishment of a person who for the purpose of fulfilling a contract with the owner of any com--mercial establishment or industrial establishment, employs workmen, a unit of a joint stock company, an insurance company, a banking company or a bank, a broker's office or stock-exchange, a club, a hotel, a restaurant or an eating house, a cinema or theatre, and such other establishments or class thereof, as Government may by notification in the Official Gazette, declare to be a commercial establishment for the purposes of this Ordinance; "Workman" has also been defined and it means person em--ployed in any commercial or industrial establishment to do any skilled or unskilled manual or clerical work for hire or reward. Petitioner has averred that he is a "workman" within the meaning of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and that the Pakistan Television Corporation is a commercial establishment as defined in the said Ordinance. The respondents have not contested this factual and legal position in so far as the Pakistan Television Corporation is a "commercial establishment". It is, however, contested that (apart from Ghulam Mustafa) the petitioners are "workmen". 17. Learned counsel for the respondent has argued that apart from Ghulam Mustafa, petitioner, others namely Messrs Muhammad Babar Zaman, Muhammad Naseem Siddiqui, Zahoor Nazim and Ismail Taj are not "workmen" within the meaning of section 2, subsection (i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968,The workmen has been defined as; " `Workman' means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward." Muhammad Babar Zaman (petitioner in Writ Petition No. 3333/S/78 is a News-Producer. He works under the direct control and instructions of News Editor who is head of the Department. It is his duty to collect the news items from teleprinters with his own hands and then draft and translate them into other languages (either in Urdu and Punjabi) as per directions of the News Editor. 1t is the case
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of the petitioner that this work is done by him manually and with the exercise of his technical and mental skill which was acquired by him when he underwent--a technical course under the auspices of his employer. He has no mana--gerial or supervisory duties. The managerial powers vest with the General Manager of Lahore Television Centre. He is also subject to supervisory control of the Director of News. According to the General Manager, Pakistan Television, Lahore, the News Producer obtains the news from the teleprinters and then composes the news. A teleprinter -- operator and a translator and typists works under the authority of the News-Producer. It is stated that his main…
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