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Appeal No. LHR‑763 of 1980, decided on 24th November, 1981.

‑‑Ss. 6, 10, 12 & 17 read with West Pakistan Industrial and Com mercial Employment (Standing Orders) Ordinance (VI of 1968), Ss. 1 (4), 2 (i), 2 (f) & 2 (bb) and S. O. 15 (4)‑Lahore Development Authority ‑Not functioning under the authority of Government Covered by "construction industry"‑An industrial establishment Not ousted from ambit of West Pakistan Industrial and Com mercial Employment (Standing Orders) Ordinance, 1968‑Engine Operator employed in WASA, L.D.A.-A workman‑Dismissal of such workman‑Cannot be made without procedure of Ordinance‑Charge sheet served not within one month of alleged misconduct coming to notice of .Management but long after two years‑Time‑barred‑Dismissal order based upon such charge‑sheet, held, vitiated‑Re insatement awarded by Labour Court upheld by Labour Appellate Tribunal‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38‑‑[1980 P L C 515 held not applicable].

1980 P L C 515 held not applicable.

1975 P L C 1 rel.

Salim Baig for Appellant.

Ghulam Qadir Cheema for Respondent,

Date of hearing :17th October, 1981.

This appeal arises from the decision dated 13‑10‑1980 passed by the learned Presiding Officer, Punjab Labour Court No. 1, Lahore, whereby the grievance petition of the respondent was accepted and he was directed to be re‑instated in service with back benefits.

2. The respondent was employed as Sui Gas Engine Operator in Water and Sanitation Agency. He also remained the General Secretary of the C.B.A. Union from 1975 to 1978. In 1979 he was charge‑sheeted for misconduct. There were as many as four charges against him. After considering his reply, enquiry was held against him and after the service of second show‑cause notice he was dismissed from service on 28‑5‑1980.

3. A legal objection was raised before the lower Court and this Tribunal that the Lahore Development Authority is functioning under the authority of the Government and has its own statutory rules of service, therefore, Standing Orders Ordinance, 1968 is not applicable. The learned lower Court has held that the L.D.A. is not working under the authority of the Govern ment therefore, the application of Standing Orders Ordinance, 1969 is not ousted by the first proviso to section 1 (4) of the said Ordinance. No doubt, the Government constituted the L.D.A. and its Chairman is the Chief Minister of Punjab and members are all officers of the Government, but that alone would not show that the L.D.A. is being carried on directly by the Government or under the authority of the Government. The Director General, who is the Executive Head of the Authority and he has to work under the Authority but not directly under the Government. The appoint ment of the Director‑General is, no doubt, to be made by the Government, but he has to function under the Authority In section 6 of the Lahore Development Authority Act,,1975 the powers and functions of the Authority are given, which show that it is the Authority who has to carry out the purposes for which it has been brought' into being and the Government has not to do anything. Under section 10 of the Act, the Authority has to delegate its powers to the Director‑General and not by the Government. The Government has kept powers of appointment and removal of the Direc tor‑General. About loans also the Government has retained certain powers. Since the Authority has been given every power and the Authority can delegate some of its powers to the Director‑General or Committee cons tituted under section 12 of the Act, it is apparent that the L.D A. is func tioning under its own Authority and not under the authority of the A Government. Section 17 of the Act, provides that the Authority shall in discharging its functions act and be guided by such directions as the Government may give to it, from time to time. This further shows that since the L.D.A. is functioning under its own authority, therefore, necessity was felt that there should be made a provision that the Authority shall be guided by the instructions of the Government. If the Authority had been functioning directly under the authority and control of the Government, there would have been no necessity of making a provision that it would be guided by the directions of, the Government. Learned counsel for the appellant has cited 1980 P L C 515, in which it has been observed that the Karachi Development Authority set up under Karachi ; Development Authority Order. 1957 is being carried on by or under the Authority of the Government with its own regulations governing the terms and conditions of service. No elaborate reasons have been given for the finding that the K.D.A. is being carried on under the, authority of the Government. . What has been observed in this respect is :‑

"The appellant corporation bas been set up under the Karachi Deve lopment Authority Order, 1957. A mere reference to the said Order makes it clear that the establishment of the Authority is being carried on by or under the authority of the Government."

I have gone through the K.D.A. Order, 1957. There is some difference between the said Order and the Lahore Development Authority Act, 1975, but there appears to be no marked difference. However, there is no such action making such provisions which have been made by section 17 of the Lahore Development Authority, Act, 1975.. Since the authority cited by the learned counsel is based upon a different Ordinance, the same cannot be followed, while deciding the question whether the Lahore Development Authority set up under the Lahore Development Authority Act, 1975, is or is not functioning , under the authority of the Government. The case National Shipping Corporation v. Sind Labour Appellate Tribunal (1975 P L C 1) is on the point whether National Shipping Corporation is running under the authority or the Government or not. The finding is that it is not running under the authority of the Government. The provisions‑of law under which National Shipping Corporation was set up are like the Lahore Development Authority Act, 1975. The authority cited above supports me to hold the view that the Lahore Development Authority is not functioning under the authority of the Government.

4. The next point raised by the learned counsel is that the Lahore Development Authority does not come within the definition of Industrial Establishment or Commercial Establishment as defined in section 2 of the W.P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The line of his arguments appears to be correct that if the respon dent does not come within the definition of workman as given in section 2 (i) of the Ordinance, there will be no right guaranteed to him for the in fringement of which he could come to the Labour Court under section 25‑A of the Industrial Relations Ordinance, 1969. The definition of workman given in section 2 (i) reads as under :‑

"Workman' means any person employed in any industrial or commercial establishment to do any............................. "

Since only that person is a workman who is employed in any industrial or commercial establishment, therefore, it is necessary to see whether the L.D.A. comes within the definition of industrial or commercial establishment. The definition of industrial establishment is given in section 2 (f) of the Standing Order Ordinance, 1968. Its other clauses do not need any discussion, but sub‑clause (v) is to be examined, which reads as under :‑

"Establishment of a person who directly or indirectly employs work men in connection with any construction industry."

Construction industry is defined in section 2 (bb), which includes the cons truction of Roads. Since L.D.A. constructs roads also, therefore, it is covered by the definition of construction industry, but according to sub‑clause V of clause (f) of section 2, it is necessary that the establishment doing the work o construction industry must be owned by a person. The word person' I used in sub‑clause v. Now it is to be seen whether the Lahore Development Authority, being a body corporate, can be said to be a person. It is a body corporate, since in section 4 (2) of the Lahore Development Authority Act, 1975 it is mentioned as such. Sub‑section (2) reads as under :--

"The Authority shall be a body corporate, with perpetual succession and a common seal, with powers, subject to the provisions of this Act to acquire and hold property, both movable and immovable and may by the said name sue and be sued."

According to the meaning of person' given in Stroud's Judicial Dictionary (Third Edition) a person in a public statute includes a Corporation as well as a natural person So a Corporation can be said to be a person. Thus, Lahore Development Authority is covered by the definition of indus trial establishment. The result is that the persons working in the Lahore Development Authority can be said to be workmen, if they were covered by the definition of workman given in Standing Order 2 (i) of the W.P. Industrial and Commercial Employment (Standing Order) Ordinance, 1968. It was not contended in the written statement on behalf of the appellant that the respondent who was a Sui Gas Engine Operator in the Water and Sanitation Agency was not covered by the definition of workman. He, therefore, can take benefit of the Standing Orders Ordinance, 1968 and the said Ordinance guarantees a right that before dismissing him he was to be charge‑sheeted within one month of the alleged misconduct or from the date on which the alleged misconduct came to the notice of the employer and if his reply was unsatisfactory, an enquiry should have been held and after service of second show‑cause notice, he could be dismissed. In the present case, the charge‑sheet was time‑barred. The various misconduct alleged to have been committed by the respondent occurred during the period from 1975 to 1976, but he was charge‑sheeted in 1979. No plea was raised before the lower Court that the misconduct had come to the knowledge of the employer one month before service of charge‑sheet upon the respondent.

S. There were as many as four charges against the respondent. The first charge was that the respondent while posted as Sui Gase Engine Opera tor and being an office‑bearer (General Secretary) of the Union (ex‑C.B.A.) he in 1976 received uniforms from the Procurement and Store Directorate for distributing them among the WASA employees. The details of uniforms were Khaki Drill Uniforms (Pant and Shirt) 270, Malasia Uniforms (Shirt and Pajama) 980. Out of the above 1254 uniforms he distributed only 638 among the employees, but not the rest and had misappropriated the price of 616 uniforms amounting to Rs. 35,000. The second charge was that while working as Sui Gas Engine Operator he had purchased two plots Nos. 319 and 320 in Block No. 12/B, Allama Iqbal Town Scheme, measuring three marlas and 25 square feet each and constructed buildings thereon costing about Rs. 1,50,000. It was alleged that such an expenditure indicated that he was living beyond his ostensible means and thus was a corrupt person within the meaning of Punjab Civil Servants (E & D) Rules, 1975. Third charge was that in the year 1973 an enquiry was held for the theft of equipments of tube‑well in Block No. D, Gulberg:I1I, Lahore and he was fined Rs. 2,500 and stoppage of two annual increments with accumulative effect, but due to his influence of being office‑bearer of C.B.A. he had managed to avert the infliction of the said punishment and that the use of influence and pressure amounted to misconduct. The last charge was that in the capacity of operator he had been receiving , overtime wages on the assessment performing extra duties at the cattle Palk Tube‑well while in reality had not performed any overtime duty and thus committed, misconduct. He was found guilty of all the charges. In cross‑examination the respondent said that on the same allegations he was charge‑sheeted in 1975 and an enquiry held, in which he was found innocent and again enquiry was held. The charge‑sheet given in 1975 is not on the record. But if what the respondent said in this respect is correct then charge No. 1 could not be included in those charges, because the uniforms are alleged to have been received by the respondent in 1976, whereas the previous charge‑sheet was given in 1975. If no charge‑sheet was given in 1975 then charge No. 1 is time‑barred. The third charge pertains to a previous conviction in which he is alleged to have been fined Rs. 2,500. The Enquiry Officer has found in respect of this charge that, thereafter, he got the penalty withdrawn. The Enquiry Officer has in respect of this charge made the following observations :‑

"He was fully responsible for the loss. He with the active connivance of ,his friend and white using undue pressure and blackmailing he got removed penalty imposed.

It is apparent that the Enquiry Officer has not found him guilty in respect of this charge. If it is to be taken that he found him guilty then the charge is time‑barred, inasmuch as the respondent is alleged to have committed the theft somewhere in 1973. No date is given with regard to charges Nos. 2 and 4. So far as charge No. 2 is . concerned, the ‑ evidence which came before the Enquiry Officer was that the respondent sold the said plots to Mirza Sodagar, who constructed a house thereon. Thus, the charge of cons truction of building by the respondent beyond his duties was not proved. The Enquiry Officer, however, has found him guilty for misusing his office as being the General Secretary of the C.B.A. Union, but since this was not the charge, the conviction in this respect is not legal. So far as charge No. 5 is concerned, the allegation is that the respondent charged overtime wages while working on tube‑wells but actually did not give any overtime. In this respect Ahad, Muhammad Rafiq, Muhammad Hussain, Shaukat Ali and Salah‑ud‑Din were examined. The other witnesses have not given the period, but, however; Muhammad Rafiq Alam said that he was working at the tube‑well from 1st January, 1968 and that upto 1978 he never saw the respondent working at the tube‑well. It means that the charge of charging over time wages pertains to the period from 1978 backward. The period for which the respondent remained the General Secretary cf the C.B.A. Union is between 1975 and 1978. The allegation is that on account of being the General Secretary he threatened the employees and thus without any right had been charging overtime wages ‑ illegally: Although the period is not given during which he charged overtime wages, but since he remained Gene ral Secretary between 1975 and 1978 the over time wages can be for the said period. Since the charge‑sheet was given on 15‑2‑1979, it is obvious that it was beyond one month. Even otherwise since the dates are not given during which the respondent is alleged to have charged overtime wages without actually giving overtime, the charge is vague. No receipts. were produced to show that actually he had received the amount of overtime wages. Although there were four charges, but the Enquiry Officer found him guilty on five counts. The fift4count reads as under :‑

"He got constructed the wall with the WASA funds although the same was required to be constructed from his own pocket as the other owners of the buildings near the drain have already constructed the wall with their own funds."

From the letter of charges it is apparent that no such charge was included in it. Besides this that the charges were time‑barred and they were not proved, since the dismissing authority dismissed the respondent on an allegation which was not included in the charge‑sheet, for this reason also, the order of dismissal stands vitiated. The learned lower Court, therefore, rightly) directed the re‑instatement of the respondent.

6. As a result of the observations made above, I do not find any force in this appeal and dismiss it.

Appeal dismissed.

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