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Petitioner: MUHAMMAD SIDDIQUB Etc. VS Respondent: PROVINCE OF PUNJAB THROUGH ITS DEPUTY
Court Name: Punjab Service Tribunal Judge(s): Ihsanul Haq Chaudhry Title: MUHAMMAD SIDDIQUB Etc. vs PROVINCE OF PUNJAB THROUGH ITS DEPUTY Case No.: Date of Judgment:1987-05-14 Reported As: K.L.R. 1987 Labour & Service 243 Result: order set aside
JUDGMENT
JUDGMENT Ihsanul Haque Chaudhry, {-hairman), The petitiouers who were appointed as temoorary Patwaries at different places in district Sialkot subject to relaxation in age by the competent authority. They were appointed in May, 1983, and continued working as such without any pay. The petitioners when failed to get their emoluments ultimately filed an appeal under section 4 of the Punjab Serviee Tribunal Act, 1974, and prayed for direction to the respondents to pay their salaries from May, 1983 The appeal was admitted to regular heating. Respondent No 2 vide order dated 29-4-19*7, has now proceeded to dispense with services of the petitioners as the Board of Revenue has declined to grant relaxation in their ages. The Petitioners through the present application want that the operation of the order, dated 29-4-1987, should be suspended. The application is misconcieved and I am afraid that the o> der cannot be suspended in the title appeal. Powers of the Punjab Service Tribunal have been enumerated in section S of the Punjab Service Tribunal Act, 1974 and f jr the purpose of present applieation sub-section 2 is relevant which reads as under ;- "2. The Tribunal shall, for purpose of deciding any appeal, be deemed to be a Civil Court and shall have the same powers as are vested in such court under the Civil Procedure Code, 1908 tAct V of 1908) The Punjab Service Triounal, 1974 by legal fiction assumes Tribunal to be a Civil Court for deciding appeals and enjoying powers vested in such court under the CPC." It is thus clear that the Tribunal while deciding the appeal enjoys the powers provided in order XL1 section 96 and 100 CPC. Their lordship of the Supreme Court of Pakistan has clearly held in PLD- 1986-SCMR 96S, that the Tribunal enjoys only powers relating to the appeals and no other provision. Now iclevant provision dealing with the matter is contained in rule S order 41 of CPC. Which reads as under s-
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"5. Stay by Appellate Court.-(1) An appeal shall not operate as a stay of proceedings under a decree or oi der appealed fiom except so far as the Appellate Court may order, nor snail execution of a decree be stayed by reason only of an appeal having been preieired from the decree ; but the Appellate Court may for sufficient cause order stay of execution of suen decree." 2. It is clear that the order which is subject matter of this application is not an order impugned in the appeal, I eAeicising the powers under the above quoted rule can suspend an impugned order or judgment but has no jurisdiction to suspend an order, wmen is independent ol the impugned order and furnishes a fresn grievance 1 he petitioners have to first impugned the same m the proper form and then make request for suspension of the same in nutshell the legal position is toat an order, which is not subject matter of the appeal, cannot be suspended or dealt with in the appeal already pending. Petitioners have independent remedy against the order dated 19-4-i9o7. As it is neither in cuntinuati n nor part of the earlier order impugned in the titled appeal. The application is misconcieved and henee dismissed. Announced in Chamber on 14-5-1987. S.L.R. 1987 Labour Cases 244 [Lahore] Present; Falok Sher, J. PERSONNEL/FACTORY MANAGER PACKAGES LTD. Versos YOUSAF MASIH Etc. W.P. So. 3752 of 1985. Decided on 1st /one, 1987. (a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 19e8 ---- S.O. lS(3)(e)-Petitioner dismissing respondent on account of his absence for a period of more than 10 days without leave-Punjab Labour Appellate Tribunal re- instating respondent in service with 75% back benefits. (Para. 2) (b) Constitntion of Pakistan (1973) ---- Art. 199-S O. 15 prescribes a whole spectrum of punishment-As a necessary corollary thereof it implies that visitation of quantum of such punishm nt should have the inbuilt correlationsbip with degree of blame- worthinees of the wrong doer-Held: Same not depicted-Further held Petition Accepted-Petitioner re-instated with full back benefits-However subject to deduction of fine of one paisa per rupee out of the wages for the actual period of absence without leave. (Para. 4, 5) For the Petitioner I Ch. Javed Altaf, Advocate with Khurahid Ahmad Khan, Ch. Altaf Hussain Advocate with Javaid, Advocate. For the Respondents : Muhammad Zassan Qureshi. Advocate. JUDGMENT Falak Sher, J.-This petition is directed against the order of the Punjab Labour Appellate Tribunal passed on 24-8-1985. 2. Brief facts of the ease are that respondent No. 1 joined the employment of tte petitioner in the year 1968 as a Fitter and while working as Machine Operatar in the yeai 198l, for health reasons absented himself from duty fer a period of more than 10 days, without leave ; consequently. The petitioner in the purported exercise of powers as contemplated by the standing order 15(3)^e) of the West Pakistan Industrial and Commercial Employment (Standing Orders), Ordinance, 1968 (hereinafter referred to as the Ordinance), dismissed him from service. Whereupon, respondent No. t, feeling aggrieved, iastituted a petition under section 25-A of the Industrial Relations Ordinance, !fe9 fafter serving the grievance notice) before the Punjab Labour Court No 2, seeking (reinstatement in service which was dismissed on 5-5-1985. Respondent No. 1, feeling dissatisfied, preferred an appeal before the Ppnjab Labour Appellate Tribunal, being Appeal No. LHR 334/85 Punjab which whs accepted vide order dated 24-8-1985, reinstating respondent No 1 in service
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along with 75% back benefits ; against which the petitioner has instituted the present petition. 3. The learned counsel for the petitioner contend* that absence of respondent No. 1 from duty without leave for more than 10 days has'been proved, which constitute misconduct meriting dismissal from service as prescribed by the standing order 15(3)(e) of the Ordinance ; thus the impugned order is without lawful authority. It is further contended that the learned Labour Appellate Tribunal has misraad the evidence as to service of notices etc. Upon respondent No. 1. d. I have examined the contention of the learned counsel fol the petitioner but I am not impressed bp the same, The solitary ironsd on which the respondent Ne. 1 has been dismiss- from service is that he remained absent from duty for more than 0 days without leave. A perusal of the record reveals that respondent No. 1 was suffering from tuberculosis (a disease to which workers in the paper industry easily fall a prey and are susceptible and had sought leave on medical grounds from petitioner which was refused. Taking the petitioner's case at its best that act of respondent No. 1 did constitute misconduct, as contemplated in terms of Standing Order 15(3) e) of the Ordinance rendering him liable to be vigited by a penalty ai p ovided by standing order 15(2) of t e Ordinance then, objectively speak'ng, one is supposed to act rationally within the frame work of law, It would be conducive for proper appreciation of the arguments of the learned counsel for the petition r to lojk at the scheme of standing order 1 (2) of the Ordinance in its appropriate perspective, revealing the true intendment of the legislature. "IS. Punishment. m A workman found guiltv of misconduct shall be liable to any of the following punishments i- (1) fine in the manner prescribed under the Payment of Wages Act 193ft IV of 1936> up to three paisa in the rupee of the wages payable t him in a month | (ij) Withholding of ineremcnt or promotion for a specified period not exceeding one year | (Iff) reduction to a lower post | or (fv) dismissal without payment of any compensation in lieu of notice." An examination of this statutory provision demonstrates that the legislature has prescribed a whole spectrum of punishment starting with a milder version ol fine and gradually escalating to the maximum penalty of dismissal, which is a pregnant evidence of the intention of the framers of this pioce of legislation that the employer has been vested with a discretion to choose the kind of puaisnment whicn would justify to meet the ends of justice in a given case. It needs no reminding that this discretion to be exercised like all other discretionary powers in a reasonable and judieious manner. As a necessary coiollary therefore it implies that visitation of quantum of punishment should have the inbuilt correlation- ship with the degree of blameworthiness of the wrongdoer. 5. I am afraid this correlationship is not depicted in the instant case when visualized through the binoeulosis ef nationalism. In para 7 of the judgment of the learned trial Court, it is mentioned that there is ample evidence on the record to demonstrate that respondent No. 1 is a suspected patient of TB, and the management had thought him to be a problem, since he was not keeping good health, petitioner deemed it appropriate to shed off the load. This factual aspect has gone unrebutted by the petitioner ; thus stands proved The record peaks of the fact, that absence was for health reasons which is not a case of wilful insubordination or indiscipline warranting major penalty ; conversely speaking I would imagine that petitioner should have acted in g more humane manner, No mcnsrea is attributable to respondent No. 1 in the discharge of his employment and rendering services to the petitioner. 1 am of the opinion that the learned Appellate Tribunal has rightly reinstated lespondent No 1 in service ; however, I feel that the part of the impugned order granting 75 % >f back benefits, in the peculiar facts of the case needs re-appreciation Since no mensrea is
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attracted towards the conduet of respondent N a. 1 coupled with the faet that he did submit application for grant and execution of leave on medical grounds (which reason stands substantiated, thoefore, I hold the view that the maximum penalty that could have been imposed in t^e instant case is the one contemplated by the Standing Order 15(0(0 f the Ordinance, which says fine upto three paisa in the rupee of the wages payable to him in a month It is worth noticing that the statutory draftsman has mentioned even this three paisa at the maximum by using the expression ' upto" meani' g thereby that fine may be even lesser than that in a given ease. I accordingly modify the order in relation to the 75% back benefits The petitioner is entitled to reinstatement with full back benefits suoject to deduction of fine of one paisa per rupee out of the wages as contemplated under the Payment of Wages Act, 1936, for the actual period of absence without leave. 6 With the above modification in the impugned order, this writ petition is disposed of ; however; there shall be no orders as to costs. S.L.R. 1987 Labour & Service Cases 247 [Peshawar] Present: Allah Bakhsh, and Muhammad Ishaq, JJ. ABBAS KHAN KHATTAK versus PAKISTAN FOREVT INSTITUTE and two others W.P. No. 139 of 1985, on decidsd 8th February, 1987. (a) PASSCO (Staff) Service Regulations (1979) ---- Regulation No. 14-Petitioner's services on conclusion of disciplinary proceedings terminated-Petitioner assailing >ueh order of termination before the Labour Court- Grievance notice-Held : Not competent before Labour Court-Petitioner advised to m >we Correct forum. (Para. 2) (b) Provisional Constitution Order (1981) read with Laws (Continuance in force) Order (1977) --Art. 9-Petitioner invoking writ jurisdiction of Peshawar High Court- Petitioner serving at Lahore when inpugaed order passed against him- Petition-Held : Without j irisdietion-iame dismissed, (Para, i) 1979 SCMR 555 relied. For the Petitioner 3 S. Iftikhar Gilani, Advocate. For the Respondentt: Kh. Muhammad Akram, Advocate. Date of hearing ; 20th January, 1987. JUDGMENT Allah Bakhsh, J -Abbas Khan Khattak has by this constitutional petition called in question an order dated 31-10-1981 passed by respondent 2 and has sought a declaration that it was ultra vires and malafide. 2. The facts forming the background of this petition briefly are that the petitioner was working as a Tenhnical Assistant (NPS-16) in the Pakisran Force! Institute, Peshawar, respondent 1, and his services were placed at tbs disposal of respondents 2 and 3. He was subsequently absorbed by them permanently on 21-8-1982 and his r ame was struck off the roll ef respondent 1 per notifeation dated 4th September, 1982. He was communicated an audit report and later on respondent 2 s- rved him with a show-cause notice An enquiry was conducted during November, 1983 and he was served with a second notice on 10-4-198*. The disciplinary proceedings came to an end and the impugned order was passed against him whereby his services were terminated under Regulation 14 of PASSCO (Staff) Service Regulations, 1979. He served the respondents with a grievance notice and moved the Labour Court. Peshawar but the petition was returned to him for presentation at the proper forum.
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3. The learned counsel for the respondents 2 and 3 raised a preliminary objection with regard to the competency of the writ petition in this Court. He strenuosly contended that Pakistan Agricultural Storage and Services corporation Limited (PASSCO), a public limited Company incorporated under the Companies Act, had its registered office at Lahore where respondents 2 and 3 functioned, that the impugned order had been passed at Lahore and that the petitioner was serving as an employee of PASSCO at Lahore when the said order was passed against him. Since the impugned order had been passed at Lahore beyond the territorial jurisdiction of this Court where the petitioner served those days this Court would have no jurisdiction at all. He for this view of she matter relied on Sabir Din v Government of Pakistan .1979 SCMR 555), In this cases the respondent whose order was brought under challenge resided at R within the jurisdiction of High Court at Lahore. The petitioner at the time of passing the said order was posted at Muza^arabad, Azad Jumma & Kashmir. He brought a writ petition in the Peshawar High Court but it was held that this Court h d no jurisdiction, The matter was taken to the Supreme Court which affirmed the view of the High C >urt. In the instant case the petitio ler as aa employee of PASSCO was serving at Lahore when the impugned orde was passed at Lahore and was served on him at Lahore It would, therefore be the Lahore High Court which shall have jurisdiction in the matter and the territorial jurisdiction of this Court stood ousted. It may be pointed out that the learned counsel for the petitioner could not die any authority for a contrary view. It is significant to note that the petitioner had movod Labour Court at Peshawar but the latter held that it had no jurisdiction and ordered that the petition he returned to him for presentation at the proper forum. This order of the Labour Court was not questioned before the Appellate Tribunal and it attained finality. Moreover, the mere fact that Pakistan Forest Institute with whom the petitioner previously served has been arrayed as respondent 1 would matter little inasmuch as no relief has been claimed against it. Furthermore, the cause of action did not arise nor the petitioner resided within the territorial jurisdiction of this Court when the impugaed order was passed. We are of the view that this Court lacks jurisdiction tmd the writ petition has been brought at a wrong forum, 4, The next contention of the learned counsel for the respondents was that PASSCO was a public limited company incorporated under the Companies Act, had its own Memorandum and Articles of Association as well as service Regulations f amed thereunder, the petitioner was not goverred bv statutory rules and, as such, he could not invoke the constitutional Jurisdiction of this Court. Since his preliminary objection with regard to the jurisdiction of this Court prevails we would not like to give a finding on this contention. The writ petition fails on the ground of lack of territorial jurisdiction and is ditmissed with costs. K.L.E. 1987 labour Cases 249 [Lahore] Present: Rnja Afrasiab Khan, J. PUNJAB SMALL INDUSTRIES CORPORATION versus ABDDUL WAHE8D W.P. No. 1912 of 1983, decided on 9th May, 1987. (a) Industrial Relations Ordinance (1969) ---- S. 25-A & 37-Services of respondents terminated on the plea of closing down of Footwear section of the petitioner Corporation-Grievance notices before Labour Court failing-Respondent's appeals accepted with back benefits---- (Para. 2) (b) Provisional Constitution Order (198l) ---- Art. v-Petitioner corporation challenging reinstatement orders passed by Labour Appellate Court-High Court finding no justification to interfere in the finding of fact in writ jurisdiction-Contention that Labour Court had no jurisdiction in the matter-Repelled-There being
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no force in the petition-Held I Same stand dismissed- (.Para. 5) PLJ 1978. Rr. c 51 PLD 198) Lah, 337. PLD 1974 S 139, PLD 1982, SC (AJ & K) 64 PLD 1987, Lah. 263. Relied. Per the Appellant: M'S. Beg, Advocate. For the Respondent; M. Nawaz Kasuri, Advocate. Date of hearing I 9th May, 1986. JUDGMENT Maja Afrasiab Khan J.-The petitioner, Punjab Small Industries Corporation (.Hereinafter to be known as the Corporation) has moved this Constitutional petition WP No. i9l2 of 1983 under Article 9 of the Provisional Constitution Order, 198', against respondents whereby the Punjab Labour Appellate Tribunal vide its decision dated 20-4-1983, accepted f>e appeal of the respondent No. 2 Abdul Waheed, directing his reinstatement to his service with back benefits. Similarly, the Corporation has filed WP No. 1913 of 1983 against Muhammad Ashraf respondeat, WP Ho. 1914 of 1983 against Nazir Ahmad respondent, WP No 1915 of 1983 against Abdul Hamid respondent and WP No I 916 of *83 against Muhammad Sarfraz respondent. Since common questions of facts and law are involved in all these connected matters, I, therefore, propose to dispose of these petitions by my consolidated order. 2. Respondents No. 2 in all these connected matters were appointed as expert bottomar, upper man, bottomar, fcoey leather Mistri and upper man in a section of the Corporation called the Institute of Leather Technology, Footware Section Gujranwala. The object to run the aforesaid centre was to p,ovide trained personnel for shoe-making industry with latest technology According to the Corporation, at the initial stage the project was run with useful service to the inoustry but later on its utility diminished rapidly as a result of which the Board of Directors took the decision to close the project This is the version of the Corporation although it is wholly refuted and denied by the contesting respondents. The Board aforesaid, directed on 14-4-1980 that the services of the staff should be terminated and the project should be sublet As a consequence of the decision stated above, the services of respondents No 2 in each case were terminated with iromedia e effect bring no longer required yids order dated 9-8-1980 (Annexures 'B') The respondents filed grievance petitions under section 25-A of the Industrial Relations Ordinance, 1969, challenging the orders whereby their services were terminated before the Presiding Officer, Panjab Labour Court No. 7, Gujranwala. The learned Presiding officer of the said Court vide his orders date 22-2-1982 (Annexure *C') dismissed the petitions of the respondents The respondents went in appeal before the Punjab Lab ur Appellate Tribunal, Lahere, under section 37 of the Industrial Relations Ordinance 1969, challenging the orders aforesaid. The learned Labour Appellate Tribunal vide his ordes dated 20-4-1983 accepted the appeals of the respondents with back benefits, 3. The learned counsel appearing on behalf of the Corporation has submitted that the learned Tribunal has misread the evidence on records inasmuch as the statement of Ghulam Husain (RW1) clearly shows that the shoe section of the institute is closed. It is stated that if the respondents are taken into service back, this shall be a great financial burden on the Corporation. It is vehemently contended by learned counsel for the petitioner that the provisions contained in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, are not applicable to the Corporation as the Corporation is a statutory body being run by the Government and has got its statutory rules. On these premises the learned counsel stated that the learned Labour Appellate Tribunal had no jurisdiction to entertain the appeals of the respondents and to decide the same. Learned counsel wanted to produce some additional evidence at this stage to prove that shoe section of the institute could not be leased out as per an agreement between Pakistan and West Gernmany, Learned counsel for respondents Ns*. 2 in each case has taken the stand that their posts were never abolished and us such, their services could not be terminated. It i3 submitted that the shoe section of the institute has been given on contract basis, it is submitted that the learned
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Labour Appellate Tribunal after considering the entire evidence produced by both the parties and the law applicable on subject, had given a finding of fact that the shoe section has not bean closed and that the posts of the respondents have not been abolished. K is next venemeitly submitted that the petitioner has not corns with clean hands in tis e High Court and not deserve any discretionary relief. It is submitted that the petitioner now wants to build altogether a new case from the one which w*s available to it before the learned Labour Appellate Tribunal. The learned counsel forcefully argu: d that this was not the case of the Corporation that the shoe section of the institute had been closed. Neither this plea was taken in the written statement nor in the relieving order. The learned counsel has produced before me affidavit of Mr. Zsfar Saleem Advo.Ate, Gujranwala, to disclose tha* RW 1 Ghulam Husain did not depose in his statement that shoe section of the institute is lying closed since long. Besides this, the learned counsel has also placed before the Court the hand writte t copy of the statement of RW 1 which he no*ed while inspecting the file. It is next contended that no counter affidavit has been filed by the Corporation challenging the contents of the affidavit of Mr. Zfar Saleem Advocate, Gujranwala. The affidavit of Mr. Zafar Salseaa Advocate was that he was a counsel in the case and appeared before th Punjab Labour Court No. t as such. He slated that he in pected the file and noteu the statement of Ghulam Hussain Accounts Officer (RW 1) in its entirety and there was no mention by the said witness that the shoj section of the institute has been elosed. 4 I have heard learned counsel for the parties at great length and perused the record very minutely and l have come to the coclusion that the shoe section of the institute has not at all been closed. To begin with, the learned Punjab Labour Appellate Tribunal after considering the entire evidence on record gave a clear finding of fact that shoe section has not been closed. The learned Tribunal has placed reliance on the written statement as well as the statement of Ghulam Husain (RW 1) to say that the shoe section has not been closed. T e learned Tsibunal had also come to (he conclusion that steps had been taken for leasing out the shoe section and tenders for that purpose have been invited. The learned Tribunal has eoneluded by saying that services of the workmen could not be terminated b adopting such a device. The finding of fact arrived at by the Punjab Labour Appellate Tribunal coupled with the affidavit of Mr. Zafar Saleem Advocate, Gujranwala, I have come to the conclusion that the shoe section was not closed at the relevant time The statement of RW 1 Ghulam Husain Accounts Office; did not contain the sentence namely, "shoe section is lying closed". It was pointed out by the learned counsel appearing on behalf of the respondents that interpolations had been made in the statement of Ghulam Husain (RW 1), in smueh as that sentence namely, "shoe section is lying closed" has been added in different ink by a different hand. I have myself seen the said disputed, sentence with! Magnifying glass and I find the same in different hand and different ink from the other statement of RW 1. The learned counsel for the Corporation, when confronted with this specific situation, could no explain the same in so many clear words. However, he stated that the learned Punjab Labour Court No. 7 has categorically stated in his judgment that the witness RW 1…
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