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Appeal No. SHKR/516 of 1973, decided on 16th October 1973.

‑‑-Read with Pakistan Essential Services (Maintenance) Act (LIII of 1952), Ss. 3 & 7‑A‑Employees of Electric Supply Company ---Do not become employees of Defence Service of Pakistan on issuance of Notification under S. 3, Act LIII of 1951 and still governed by provisions of Ordinance XXIII of 1969‑Jurisdiction of Labour Court‑Ousted only if Notification under S. 7‑A alive up-to-date or when matter still pending before such Court.

(b) West Pakistan Industrial and Commercial Employment (Standing Orders Ordinance (VI of 1968)----‑

---‑S. 2(i) Workman"‑Electricity Meter Readers, held, covered by definition of 'workman'.

------S. 34 (as amended by Labour Laws (amendment) Ordinance (XII of 1972)‑Deletion of word workman' in S. 34 try Ordinance XII of 1972‑Does not take away right o individual workmen under S. 34 before such amendment and their right to seek redress against employers not affected.

Lal Mohammad for Appellant.

Wasiullah Qureshi for Respondent.

This is an appeal against an award .of the learned Presiding Officer of Sind Labour Court No. VI, Hyderabad, dated June 20, 1973, whereby the learned Labour Court ordered the respondent to be re‑instated with full back benefits. The facts giving rise to the present appeal briefly put are these.

2. The respondent was working as a Meter Reader with Shikarpur Electric Supply Company Limited (hereinafter called the appellant --Company). He was charge‑sheeted on 6^thAugust, 1970 for insubordination and dereliction of duty. The respondent submitted his explanation on 15^thAugust, 1970, but no order was passed till 8^thSeptember, 1971, when he was dismissed for misconduct. The case of the respondent was that the provision of Standing Order 15 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Standing Orders Ordinance) were not complied with. The respondent made an application under section 34 of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance), on 25th October, 1971 challenging the order of his dismissal from service.

3. The learned Labour Court, on the pleas raised by the appellant, came to the conclusion that the jurisdiction of the Labour Court was not ousted by the provi1ons of the Pakistan Essential Services (Maintenance) Act, 1952 (hereinafter called the Act of 1952) ; that the application under section 34 of the Ordinance was maintainable as the respondent had fulfilled the conditions laid down under Standing Order 18 of the Standing Orders Ordinance ; and that the dismissal of the respondent was illegal, inasmuch as, the conditions of Standing Order 15(4) of the Standing Orders Ordinance were not complied with. Lastly, the Court came to the conclusion that the respondent was entitled to full back benefits, as in the case before him no enquiry at all was held.

4. Mr. Lai Mohammad, the learned Advocate for the appellant has raised several points before me, which I propose to dispose separately. He contended, in the first place, that the Company, being an "Electricity Supply Company" is concerned With the generation and distribution of energy and, therefore, under section 7‑A of the Act of 1952 the learned Labour Court had no jurisdiction to deal with the matter. There is no doubt that under the Notification of the Central Government, which was published in 1965 and again extended in 1966, if it had been alive up to date or at the time 'then the matter was pending before the learned Labour Court, the jurisdic tion of the Court would have been ousted under section 7‑A of the Act on 1952. Mr. Wasiullah Qureshi, the learned Representative for the respondent, contended that the learned Advocate has failed to produce any evidence to establish that the Notification issued by the Central Government under section 3 of the Act of 1952 had been extended from time to time so as to keep it alive up to the date when the application under section 34 or the Ordinance was made. Mr. Lai Mohammad, the learned Advocate for the appellant, has not produced any Notification of the Central Government whereby I could come to the conclusion that the Notification issued in 1966 was still operative in October, 1971 when the application under section 34 of the Ordinance was made.

5. The next point urged by Mr. Lal Mohammad is that the provision of the Ordinance did not apply to the case of the respondent, as he can be said to be in the Defence Services of Pakistan. There is not much force in this contention. An employee of Electric Supply Company cannot be said to be in the Defence Service of Pakistan by virtue of any Notification that may have been issued at some time under section 3 of the Act of 1952.

6. In the third place, Mr. Lal Mohd the learned Advocate for the appellant, contended that the respondent having taken steps before the Assistant Commissioner under the Arbitration of Labour disputes Order, 1972, the application made by the respondent before the Labour Court should by deemed to have abated under sub‑clause (3) of section 11 of the said Order. On the other hand, Mr. Wasiullah Qureshi submitted that there is no evidence on the record of this case to substantiate the contention of Mr. Lai Moham mad, inasmuch as, there is no evidence to prove that the respondent bad made any application to the Assistant Commissioner under the said Order. It is true, there is no such application on the record of the case or anything in the evidence of Mr. Sham Lai, the General Manager, who appeared for the appellant‑Company.

7. Mr. Lal Mohammad in the fourth place contended that the respon dent being a Meter Reader, his duty was to supervise Electricity Meters Readers, so that no fraud was committed by Electricity consumers. As to whether the respondent is a workman or not, is a question of fact. I have gone through the affidavit of Mr. Sham Lai the General Manager. He has not said anything as regards the duties to be performed by the respondent. In the absence of any evidence as to what duties the respondent was perform ing, he cannot be held to be not a workman, simply because he was a Meter Reader. I would hold that the respondent was a workman within the meaning of the definition of that, said term under the Standing Orders Ordinance.

8. Mr. Lal Mohammad, in the fifth place, submitted that the applica tion under section 34 of the Ordinance became infructuous after the amend ment of section 34 of the Ordinance on 13^thApril, 1972. By the said amend ment in April, 1972, the word "workman" was deleted from section 34 of the Ordinance. His submission was that in individual workman from April, 1972, could not continue an application under section 34 of the Ordinance. There is not much force in this contention. Section 34 of the Ordinance conferred a vested right on an individual workman which cannot be said to be a procedural right to get certain redress against his employer. This vested right cannot be taken away unless there be something in the amendment itself. I would hold that the respondent had a right to continue his application under section 34 of tile Ordinance.

9. Lastly, it was contended by Mr. Lal Mohammad, that the learned Labour Court should have not awarded back benefits. Mr. Lal Mohammad submitted that even on the evidence of Mr. Sham Lal, the General Manager, of the appellant‑Company, it cannot be said that no enquiry was purported to be held. Mr. Lal Mohammad submitted that the conclusion of the learned Labour Court, which reads as under, is not well‑founded:

"If an enquiry is set aside due to some defect or lacuna, in spite of the order of re‑instatement, the back benefits are not awarded, till the decision following the second enquiry is not finalised. But in the present matter there was absolutely no enquiry against the applicant I, therefore, after allowing the application, direct the re‑instatement of the applicant with full back benefits."

10. The learned Labour Court came to the above conclusion on the statement of the General Manager, Mr. Sham Lal, which reads as under:‑

"I had given a letter for enquiry to the Enquiry Officer and not to the applicant. There are no statements with the Enquiry Report received by me. It consisted of the Enquiry Officer's statement only. No show‑cause notice or copy of Enquiry Officer's Report was given to the applicant: I bad not conducted any personal enquiry."

11. On a perusal of the above statement, it appears to me that an Enquiry Officer was appointed. It is true, the Company should have produced the Enquiry Officer to disclose as to what steps he had taken in order to conduct the enquiry against the respondent. The failure on the part of the Enquiry Officer, if at all, not to give an opportunity to adduce his evidence or to cross‑examine the witnesses would amount to a defective enquiry, which would vitiate the order terminating his services. The enquiry of the same would remain defective. The right of the Company to hold an enquiry on re‑instatement is not taken away. In these circumstances, I do not think that the order of the learned Labour Court to award back benefits to the respon dent was Justified. The question, however, remains as to whether the respon dent should not be compensated for the inconvenience and the amount that be must have spent up to date for the award by the learned Labour Court on litigation. Mr. Wasiullah Qureshi, the learned Representative for the respon dent, admitted that the respondent had been drawing his salary from 6^thAugust, 1970 to 5^thSeptember, 1971. I think the ends of justice would be met if I order the Company to pay Rs. 500 as costs to the respondent and Rs. 150 as costs to Mr. Wasiullah Qureshi, the learned Representative for the respondent.

12. As a result of my order, the award of the learned Labour Court stands so far as re‑instatement of the respondent is concerned. If the appellants desire to hold an enquiry against the respondent, they should do so within one month from today. In case, the appellants do not hold an enquiry against the respondent for alleged misconduct, the respondent would be entitled to back benefits, minus Rs. 500, that I have awarded as costs. The amount of compensation to the respondent and the costs to Mr. Wasiullah Qureshi to be paid within a week from today.

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