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Petitioner: BAKHT ALI VS Respondent: DEPUTY COMMISSIONER NAWABSHAH, And Another
Court Name: Sindh Service Tribunal Judge(s): Munawar Ali Khan Title: BAKHT ALI vs DEPUTY COMMISSIONER NAWABSHAH, And Another Case No.: Appeal No, 57 of 1986 Date of Judgment:1987-08-02 Reported As: KLR 1987 Labour and Sen ice Cases 224 Result: Petitions dismissed
JUDGMENT
JUDGMENT Justice (Rtd.) Munawar Ali Khan (Chairman).-The appellant Barkht Ali who was Tapedar in District Nawabshah was dismissed from service by order dated 23rd August, l*a3 passed by Deputy Commissioner, Nawabshah, The departmental appeal preferred by him against the said order failed, as the Commissioner vide bis order dated 4-5-1986 up held the appellant's dismissal from service. The present appeal is directed against the aforesaid two orders. After hearing the arguments addressed at the bar, the appeal was allowed by short order dated 2- 3-1986 which reads as under ; "Mr. Naimatullah Qureshi for the appellant present. Mr. Rasheed Akhtar Qureshi Government's counsel also present. After hearing the arguments of the learned counsel for the parties, the appeal is allowed with no order as to costs an4 the impugned order of the dismissal of the appellant is set aside. However, the case is remanded back to the Authorized Officer concerned with direction to proceed with the case afresh in accordance with the procedure laid down in the Sind Civil Servants Act (B Sk Dj Rules, 1973. Reasons to foil ow", Following are the reasons in support of the above short order. The appellant was served with show cause notice dated 15-2-1979 alleging therein that on his transfer from Tapo Lalia, Taluka Moro, he did net handover the registers specified in the notice, which were in his custody, to his successor. It was further alleged in the notice that as per report of the Mukhtiarkar Moro, the appellant had reported to him on 28-11*1978 that four registers of Patw ri Form XV of Deh Junalo were stolen away from the box by breaking open its lock. On receipt of such report, te Show-cause Notice further shows the appellant was given a letter addressed to the SHO More for lodging complaint about theft of the record, but he did not go to the SHO and instead produced the said letter along- with bis statement before Mukhtiarkar Moro that the record said to be stolen was found to be lying
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behind the box Despite such statement by the appellant, the record in question was not delivered by him to his successor and therefore he was charged with malafide intention of mis. Placing the public record with a view to hide some mischief played with the record. By the said Notice the appellant was also called upon to submit his reply within 14 days. It appears that the appellant submitted his reply in compliance with the Show-cause Notice. The record shows that after the appellant submitted his reply as aforesaid, the Deputy Commissioner, Nawabshah directed the Assistant Commissioner Moro to conduct an enquiry into the allegations made against the appellant. The Assistant Commissioner after holding the necessary enquiry submitted his findings, on the basis of which the Deputy Commissioner found the appellant guilty of the charges proved against him and passed the order of his dismissal from service as mentioned above. As provided in the aforesaid rules, the Authorized Officer had two options : First, to serve the appellant with Show-cause Notice without ordering detailed enquiry and, second to give him charge sheet accompanied bv statement of allegations, if he was of the opinion that detailed enquiry would be necessary and in that case also to name enquiry committee or enquiry officer. In the instant ease the disciplinary action commenced with service of show cause notice on the appellant, showing thereby that detailed enquiry was not contemplated. However after receiving the appellant's reply to the Show cause notice the Deputy Commissioner changed the course and directed the Assistant Commissioner to hold an enquiry. In compliance with such direction the Assistant Commissioner held the necessary enqui y and submitted his finding It is dear from the impugned order passed by the Deputy Commissioner, dismissing the appellant from service that the said order has been based entirely on the findings arrived at by the Assistant Commissioner in the enquiry conducted by him. It is an admitted position that the appellant was not associated with the said enquiry held by the Assistant Commissioner. The same was Conducted in his absence and behind his back. Thus not only the procedure contained in the aforesaid Efficiency and Discipline Rules was thrown to wind but also the appellant had been condemned unheard. If detailed enquiry was intended to be held against the appellant, the procedure given in Rule 6 of the aforesaid Rules was to be followed in as much as that as a first step the charge-sheet along with statement of allegations had to be communicated to the appellant. This was obviously act done Further more neither the appointment of Assistant Commissioner Moro as Enquiry Officer was notified to the appellant nor the enquiry was held in his presence affording him opportunity of cross examining the witnesses examined in coarse of the enquiry. Even the statement of the accused official was not recorded in the said enquiry. Despite the above irregularities, the findings arrived at by the Assistant Commissioner in that enquiry have been made the basis of the impugned order by which the appellant was dismissed from service. For above reasons the impugned order was not sustainable and as such the appeal was allowed and the said order was set aside, However the ease was remanded back to the Authorised Officer concerned with direction to proceed afresh in accordance with the aforesaid rules, K.Li.*.. 1987 Labour and Service Cases 226 [Lahore] Pnsent ; Raja A/raitab Khan, J. PUUJAB SMALL INDUSTRIES CORPORATION versa* ABDUL WAHEED W. P. No. 1912 of 1983, decided on 9th May, 1987, (a) Industrial Relations Ordinance (1969) ----- S. 25-A-Workman-Termination of services on plea of closure of
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project of petitioner-Respondents challenging such termination before Punjab Labour Court-Same dismissed However, Punjab Labour Appel- lote Tribunal accepting respondents* appeal with back benefits (Para. 2) (b) Provisional Constitution Order (1981) --Article 9-Counsel for petitioner contending that petitioner Corporation being a statutory body Appellate Tribunal had no jurisdiction to entertain appeals of respondents and decide same-Such contention repelled-Same having not been raised before the Tribunal to the jurisdiction of which petitioner had itself submitted-Held ( Finding given by Tribunal based on evidence-No justification to interfere in such finding of fact in exereise of extra-ordinary writ jurisdiction-Petitions having no force- Held further : Same are accordingly dismissed. (Para. 5) PLD 1974 SC 139 PLD ; 1982 SC (AJ & K) 64 ; PLD 1987 Lah. 263 ; PLD 1978 Tr. C. (Labour) 51 ; PLD 1980 Lah. 337. For the Appelleet: M. N. Beg, Advocate. For the Respondent: M. Nawaz Kasuri, Advocate. Date of hearing : 26th 27th, 28th, 29th April and 2nd, 3rd, 5th and 9th May, 1987. JUDGMENT Raja Afrasiab Khan, J.-The petitioner, Punjab Small Industries Corporation (hereinafter to be known as the Corporation) has moved this Constitutional petition (W.P. No. 1912 of 1983 under Article 9 of the Provincial Constitution Order, 1981, against the respondents whereby the Punjab Labour Appellate Tribunal vide its decision dated 23-4-1983, accepted the appeal of the respondent No. 2 Abdul Waheed, directing his reinstatement to his service with back benefits. Similarly, the Corporation has filed W.P. No. 1913 of 1983 against Muhammad Ashraf respondent, W. P. No. 1914 of 1983 against Nazir Ahmad respondent, W. P. No 1915 of 1983 against Abdul Hamid respondent and W.P. No. 1916 of 1983 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, fency leather Mistri and upper man in a section of the Corporation called the Institute of Leather Technology, Footwear Section Oujranwala. The object to run the aforesaid centre was to provide 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 industry but later on its utility diminished rapidly as a result of whieh 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 sub-let. As a consequence of the decision stated above, the services of respondents No. 2 in each case were terminated with immediate effect being no longer required vide order dated 9-8-1980 (Annexures 'B'). The respondents filed grievance petitions under seetien 25-A of the Industrial Relations Ordinance, 1969, challenging the orders whereby their services were terminated before the Presiding Officer, Punjab Labour Court No. 7, Gujranwala. The learned Presiding officer of the said Court vide his orders daiod 22-2-1982 (Annexure 'C'j dismissed the petitions of the respondents. The respondents went in appeal before the Punjab Labour Appellate Tribunal, Lahore, under section 37 of the Industrial Relations Ordinance 1969, challenging the orders aforesaid. The learned Labour Appellate Tribunal vide his orders 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 record, inasmuch as the statement of Ghulam Hussain (R.W ) clearly shows that the shoe section of the institute is closed. It is stated that if the respondents are
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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 Germany. Learned counsel for respondents No. 2 in each case has taken the stand that their posts were never abolished and as suh, their services could not be terminated. It is submitted that the shoe section of the insti- (9th has been given on contract basis. It is submitted that the learned Labour Appellate Tribunal after considering the entire evidence produced by both the parties and the law appplicable and the subject, had given a finding of fact that the shoe section has not een closed ont that the posts of the respandents have not been abolished. It is next nehemently submitted that the petitioner has not come with clean hands in the High Coui t and does not deserve any discretionary relief. It is submitted that the petitioner now wants to build altogether a new ease from the one which was available to it before the learned Labour Appellate Tribunal The learned counsel forcefully argued 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. Zafar Saleem Advocate, Gujranwala, to disclose that R W. 1 Ghulam Hussain 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 written copy of the statement of R W. 1 which he noted while inspecting the file. It is next contended that no counter affidavit has been hied by the Corporation challenging the contents ef the affidavit of Mr, Zafar Saleem Advocate, Gujranwala. The affidavit of Mr. Zafar Saleem Advocate was that he was a counsel in the ease and appeared before the Punjab Labour Court No. 7 as such. He stated that he inspected the file and noted the statement of Ghulam Hussain Accounts Officer (R.W. 1) in its entirety and there was no mention by the said witness that the shoe section of the institute has been dosed. 4. I have heard learned counsel for the parties at great length and perused the record very minutely and I have come to the conclusion 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 oas placed reliance on the written statement as well as the statement of Ghulam Husain (R.W. 1) to say that the shoe section has not been closed. The learned Tribunal has also come to the eonelusiou that steps had been taken for leasing out the shoe section and tenders for that purpose have been invited. The learned Tribunal has concluded by saying that services of the workmen could not be terminated by 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 elo sed at the relevant time. The statement of R.W. 1 Ghulam Hussain Aosounts Officer 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 Hussain R.W. 1, inasmuch as the sentence namely, "shoe section is lying closed" has been added in a different ink by a different band. I have myself seen the said disputed sentence with magnifying glass and I find the same is in different hand and different ink from the other statement of R.W. 1. The learned counsel for the corporation, when confronted with this specific situation, could not explain the same in so many clear words. However, he stated that the learned Punjab Labour Court
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No. 7 has categorically stated in his judgment that the witness R.W, 1 Ghulam Husain has stated that 'shoe section is lying closed*. Additionally it is clear from the orders dated 9-8-1980, whereby the services of the respondents were terminated on the ground of abolition of posts. In these orders there is no mention toat the shoe section has been closed. On the request of the learned counsel for the Corporation, one Mr. Muhammad Nauman llsmani. Supervisor, was summoned in Court and he deposed that shoe section is closed since 1980 and the machinery worth 19 (nineteen) lacs it lying idle and that his services have been retained in order to look after the said machinery. I am also of the view that this officer is the employee of the Corporation and he cannot go against his instructions. The mere fact that the machinery worth laet of rupees is still installed at the spot and that he was there as supervisor will show that the sestien n question has not been closed. Is therefore, think that the finding of the learned Labour Appellate Tribunal that this device has been adopted to terminate the services of the respondents appears to be correct. 5. I am of the view that the finding given by the learned Labour Appellate Tribunal is based on evidence and I |do not find any justification to interfere in that finding of fact in the exereiee of extra-ordnary writ jurisdiction. If any authority is needed, reference may be made to Muhammad Husain Munir v, Sikandar etc. PLD 1974 SC 139, Muahmmad Suleman etc. v. Javed Iqbal etc. PLD 1983 SC AJ & K. 64 and Ama v. District . Udge, Staikoi etc. PLD 1987 Lahore 263. There is no force in the contention of the learned counsel for the Corporation that for learned Labour Appellate Tribunal had no jurisdiction to entertain the appeal. The Corporation submitted to the jurisdiction of the learned Labour Appellate Tribunal and they did not raise this plea before the siad^ Court and, therefore, now at this stage they cannot be permitted to raise the plea of jurisdiction. Furthermore, the plea of jurisdiction was raised by the Corporation before the Presiding Officer Punjab Labour Court No. 7, that the instant case does not fall in bis jurisdiction for determination. However, the learned Presiding Offieer overruled the objection and held that the Labour Court was competent to entertain and decide the matter and in that behalf reliance was placed on Saeed Ahmad Chand v. Regional Manager, PAS & DC Lahore PLJ 1987 Tr. C. Labour 51. This view is further supported by the case of Habibullah v. Government of the Punjab etc. PLD 19c>0 Lahore 337 wherein it was held that the respondent is one of such Corporations and the functions it is entitled to perform under sections 18 and 27 of Act XV of 1973, to constitute it as a person performing functions in connection with the affairs of a Province. I respectfully follow the dictum laid down in this case for its service in the case in hand. It may be pointed out that the Corporation \ did not file any cross-objections before the Punjab Labour Appellate Tribunal so far as this part of the finding by the Presiding Officer Punjab Labour Court No. 7 was concerned. Thus the objection of the Corporation is repelled. The learned counsel wanted to produce seme additional evidence in the shape of a letter saying that the machinery installed in the institute shall not be leased out, cannot be permitted to do so at this stage. If the aforesaid letter was so much important from the point of view of Corporation, they should have produced that letter at the earliest possible opportunity. They did not do so, neither before the Punjab Labour Court No. 7, nor before the Punjab Labour Appellate Tribunal. They, therefore, cannot be allowed to produce fresh evidence at this stage in the exercise of Constitutional jurisdiction of the High Court. It is next argued by the learned counsel that the actions and orders of the Corporation stand validated by the Validating Ordinance, 19,2, and, therefore, if any irregularity has been committed by the Corporation, that stands validated. I am not persuaded to go into the validity or otherwise of the contention raised by the learned counsel for the Corporation because the same point is under consideration before the Full Bench of the Lahore High Court Therefore, I do not enter into the discussion on the plea of the learned counsel. 6. Now I take up Writ Petition No. -332/S-83 titled Muhammad Ashraf v. Punjab Small Industriea corporation etc. In this case there is slight difference from the other five connected writ petitions,
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inasmuch as the petitioner, Muhammad Ashraf, directly came in the High Court by moving the aforesaid writ petition against the orders of the respondent whereby his services were terminated on the ground that the post of Shoe Technologist in the institute of Leather Technology, Gujranwala, had been abolished. In this case, the learned counsel states that the petitioner does not come within the definition of a workman, and, therefore, he could not go before the Labour Court for the redress of his grievance. However, he stated that if the High Court comes to the conclusion that the orders passed by the Punjab Labour Appellate Tribunal were justified in law and upheld, then in that case, the petitioner shall also be benefited by that order. The writ petition of the petitioner was also admitted on the basis that the impugned orders terminating the services of the respondents in the connected cases were under scrutiny before the High Court, The petitioner maintained that he sent the representation to the respondent Corporation but the same was not considered at all and instead the petitioner was given the assurance by the Corporation that the cases of Abdul Waheed, Muhammad Ashraf, Narir Ahmad, Abdul Hamid and Muhammad Sarfras were pending adjudication before the Court of law and whatever would be the result in those cases, it shall be applicable in the ease of the petitioner as well and in ease the Court decides that the respondents in the other connected matters are restored in their service, the writ petitioner shall also be reinstated in his service. On the decision by the Punjab Labour Appellate Tribunal vide its order dated 20-4-1983, the petitioner moved the respondent Corporation for his reinstatement but the Corporation refused to accept the request of the petitioner. In view of this, the petitioner has come in the writ jurisdiction of the High Court. 7. Learned counsel for the petitioner prays that he may be linked with whatever might be the decision in all the other connected matters. Since this petition too is connected with the other similar matters, therefore, the delay in challenging the impugned order passed by respondent Corporation is condoned in view of the special circumstanses of the instant case. The npshot of the above discussion is that there is no force ia WP No. 912 of 1983, WP No. 1913 of 1983. WP No. 1914 of 1983. WP 1915 of 1983 aud WP 1916 of 1983 filed by the Corporation, which are accordingly dismissed leaving the parties to bear their own costs. However, WP No. 2332/S of 1983 titled Muhammad Ashraf v. Punjab Small Industries Corporation is accepted declaring the impugned orders dated 1- 10-1980 and 10-11-1980 as without lawful authority and of no legal effect, leaving the parties to bear their own costs. K.L.K. 1987 Labour & Service Caaee 231 [Karachi] Present; Ahmed Alt U Qureshi, J. M/s PRINCE GLASS WORKS Ltd. Versus COMMISSIONER. SIND EMPLOYEES SOCIAL SECURITY INSTITUTION, and others M. A. No. 27/85 16 of 1986, decided on 21st April, 1987. Provincial Employees Social Security Ordinance (1963) ----- S. 65-Respondents making demand from appellant towards arrears of contribution for their secured employees with respect to house rent allowance, conveyance allowance and attendance allowance-Applications of appellants there against failing before both the Social Security Commissioner and the Soeial Security Court-Question in'olving in both the appeals requiring determination was whether house rent, attendance allowance and conveyance allowance could be considered as "wages" as defined under section 2(30) of the Social Security Ordinance No. X of 1965- Held: Attendance allowance did constitute wages whereas house rent would not constitute part of wages-Held further : That as a result the appeals are partly allowed to the extent that appellants are not liable to pay the contribution under section 20 of the Ordinance
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with respect to house rent allowance-Same not earing direct nexus to service rendered by employees. (Para, 12) PLD 1978 Lah. 955, PLD 1978 Kar. 890, 1980 PLC 752, PLD 1977 S.C. 177.1982 PLC 325 and PLD 1977 S.C. 177 ref. For the Petitioner j Khurshid Anwar Shaikh, Advocate. For the Respondent; S. A. Sarwana, Advocate. Date of hearing s 7th April, 1987. JUDGMENT j Ahmad All U, Qureshi, J.-These twe Miscellaneous Appeals arc directed against the judgement of learned Presiding Officer Social Security Court No. I Karachi dated 30-5-1985 whereby he dismissed the two appeals of the appellant against the orders of the Commissioner Social Security dated 7- 3-1985 and 19-3-1985. 2. The facts leading to these appeals are that the respondent made a demand cf Is, 31,470. 24 from the appellant towards arrears of contribution for their secured employees with respect to house rent allowance, conveyance allowance and attendance allowance for the period for September, 1981, to December, 1982. The respondent further made demand from the appellant for payment of Rs. 1,05^03.57 as arrears of contribution towards the above said allowances of the secured employees from January to December, 1983. The appellant filed applications against the above said demands before the Social Security Commissioner which were dismissed and the disputes raised by them before the Social Security Court Were also dismissed vide the impugned judgement. As the parties and the questions of law and fact in both the appeals are same, I propose to dispose both appeals by one order. 3. I have heard the learned counsel for the parties. The question involved in these appeals is whether house rent, attendance allowance and conveyance allowance can be considered as wages as defined under lection 2(30) of the Social Security…
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