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Writ Petition No. 4227 of 1984, heard on 21st March, 1987.
---Art.199--Constitutional petition--Question of jurisdiction going to the very competency of the Courts below, being a question of law, was allowed to be raised for the first time at constitutional petition stage in the interest of justice.
---Ss.3 & 2--"Indu trial and Commercial Establishment"--Definition- Municipal Committee School managed by Municipal Committee, held, would not fall within ambit of expression "Industrial and Commercial Establish ment"--Provisions of Ordinance VI of 1968, therefore, could not have its tentacles extended so as to embrace the activities of school managed by Municipal Committee.
---S.25-A--West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2, Explanation (i)--"Workman"- Grievance petition--Applicant must be a "workman" doing any skilled or unskilled manual or clerical work--School teacher--Nature of duties of a school teacher could neither be classified as skilled or unskilled, manual or clerical, hence he was not a "workman" as contemplated by Ordinance VI of 1968, consequently Labour Appellate Tribunal and Labour Court had no jurisdiction in his matter.
Abdul Malik v. National Education Society 1987 P L C 224; K.G. Old, Principal, Christian Technical Training Centre, Gujranwala v. Presiding Officer, Punjab Labour Court, Northern Zone and 6 others 1976 P L C 675 and Muhammad Aqil v. Sind Labour Appellate Tribunal and another P L D 1978 Kar. 649 ref.
---Ss.25-A & 2 (xxviii)--"Workman"--Definition--Dismissal from service--Entitlement to avail the remedial proceedings catered for in Industrial Relations Ordinance, 1969 stated.
A dismissed person within the meanings of Industrial Relations Ordinance would be workman only if his dismissal was in connection with an "Industrial dispute" and would be entitled to avail of the remedial proceedings catered for in the Industrial Relations Ordinance, inter alia, under S.25-A, only in relation to any right guaranteed or secured to him under the Industrial Relations Ordinance and not under any other law.
Superintending Engineer (H.Q.) Irrigation, Lahore Zone and another v. Punjab Labour Appellate Tribunal and another 1987 P L C 180 ref.
---S.25-A--Punjab Local Government Ordinance (VI of 1979), preamble & S.36--West Pakistan Local Council Servants (Efficiency and Discipline) Rules, 1963, Rr.12 & 36--Rights of a teacher in a Municipal School, if any, under Punjab Local Government Ordinance, 1979 and West Pakistan Local Council Servants (Efficiency and Discipline) Rules, 1967 cannot be enforced by virtue of a petition under S.25-A, Industrial Relations Ordinance, 1969--Such person can avail remedies prescribed in Act, 1979 or Rules, 1963 or can have a recourse to an ordinary civil Court of original jurisdiction if otherwise not specifically excluded or to a constitutional petition.
---Art.199--Punjab Local Government Ordinance (VI of 1979), S.36--West Pakistan Local Council Servants (Efficiency and Discipline) Rules, 1963, Rr.12 & 36--Employees of Municipal Corporation or for that matter Municipal Committees are employees of local authority and their terms and conditions of service were governed by Statutory Rules and any violation of such Rules, held, would be amenable, and subject, to supervisory jurisdiction of High Court.
M.S. Faruki, Chief Officer, Lahore Municipal Corporation, Lahore v. The Province of West Pakistan and another P L D 1970 Lah. 195, and Syed Fayyaz Qadri, Advocate v. The Administrator, Lahore Municipal Corporation, Lahore and 4 others P L D 1972 Lah. 316 ref.
---Art.199--West Pakistan Local Council Servants (Efficiency and Discipline) Rules, 1963, R.36--Termination of service on ground of absence from duty--Absence being because of official errand cannot be treated as absence from duty--Order of dismissal merits to be set aside.
---Art.199--West Pakistan Local Council Servants (Efficiency and Discipline) Rules, 1963, R.36--Termination of service--Show-cause notice--Second show-cause notice before imposition of major penalty of dismissal being imperative and having not been given to the employee, order of dismissal merits to be set aside.
A.W. Butt for Petitioner.
Muhammad Zaman Qureshi for Respondents.
Dates of hearing: 16th, 17th, 18th and 21st March, 1987.
This petition calls in question order of Punjab Labour Appellate Tribunal, dated 26-6-1984, passed in Appeal No. G.A.-517/83 Punjab; whereby order of Punjab Labour Court No.7, Gujranwala, dated 31-8-1983, was upheld, to the extent of re-instatement of respondent No.3, in the service of petitioner with back benefits. However, order of Punjab Labour Court No.7 was set aside in so far as it permitted respondent No.3 to proceed on invalid retirement (in consequence of invaliding certificate dated 14-10-1981, issued by the Standing Invalidating Committee, Jhelum) with a direction to petitioner to decide the point at its earliest opportunity. Hence this petition.
2. Brief facts culminating into the present petition are that respondent No.3 was employed by petitioner and was working as a Primary School Teacher in the M.C. Primary School, Lalamusa, since the year 1962. He was dismissed from service on 15-7-1981, by the Vice-Chairman of petitioner on two counts viz. that he remained absent from duty from 12-10-1980 to 15-10-1980, secondly he absented himself from duty from 11-11-1980 onward during the suspension period (suspension order was passed on 5-11-1980 and was conveyed to respondent No.3 on 9-11-1980). This order of dismissal was impugned by respondent No.3, in appeal, before Deputy Commissioner/ Controlling Authority, vide Appeal No. 19 of 1982, which was dismissed on 30-5-1982. Respondent No.3, feeling aggrieved, served a grievance notice dated 5-7-1982, under section 25-A of the Industrial Relations Ordinance, 1969, upon petitioner, which was not replied. Consequently, respondent No.3, filed a petition under section 25-A of the Industrial Relations Ordinance, 1969 before Punjab Labour Court No.7, Gujranwala at Gujrat on 29-7-1982, inter alia, alleging that he sought retirement on medical. ground, whereupon Chairman of petitioner referred him to and sought' advice of Medical Officer, Civil Hospital Lalamusa on 29-8-1980, who advised that he be referred to Medical Board, District Headquarters Hospital, Jhelum, but against this advice, the Chairman, with mala fide intention, referred respondent No.3 to the Standing Medical Board, for Local Bodies Rawalpindi on 6-10-1980. Persuance thereto, respondent No.3 went to Rawalpindi, wherefrom his case was returned for reference to Medical Board, District Headquarters Hospital, Jhelum. Respondent No.3 appeared before the Board on 15-7-1981 and was advised rest for two months. Subsequently, he was examined by the Standing Invalidating Committee, Jhelum, who vide letter dated 14-10-1981, advised that respondent No.3, has been rendered unfit, for further service and accordingly invaliding certificate of the same date was issued, certifying that he has been completely and permanently incapacitated for further service.
It was stated that the period consumed while respondent No.3 was referred to Rawalpindi and Jhelum for medical examination cannot be treated as absence from duty, as he was obeying the orders of petitioner and, thus, was to be treated on duty; but in the school he was marked on leave, which was subsequently scored out with mala fide intention.
It was further stated that he was illegally suspended on 9-11-1980, without any reason, and that an ex parte inquiry was conducted.
3. The Punjab Labour Court No.7, accepted the petition, vide order dated 31-8-1983, setting aside the dismissal order dated 15-7-1981, and re-instating respondent No.3, in service, with back benefits; and allowed him to proceed on invalid pension with effect from 14-10-1981, in consequence of invalidating certificate dated 14-10-1981.
4. This order of Punjab Labour Court No.7 was appealed against by petitioner before Punjab Labour Appellate Tribunal, Lahore, through Appeal No. GA-517 of 1983, which was decided vide order dated 26-6-1984, impugned in this constitutional petition. The Appellate Tribunal upheld the orders of Labour Court re-instating respondent No.3, in service with back benefits; however, the second limb of the order allowing respondent No.3, to proceed on invalid retirement with effect from 14-10-1981, on the basis of the invalid certificate, of the same date, was set aside with a direction to petitioner to decide the point at its earliest opportunity.
5. Petitioner feeling aggrieved by the impugned order, has preferred this constitutional petition, which was admitted to regular hearing, vide order dated 3-11-1984, and operation of the impugned order was suspended.
6. The learned counsel for petitioner at the Bar confined his arguments, exclusively as to lack of jurisdiction of both the Courts below. To put it succinctly, the argument is that respondent No.3 being a school teacher by profession is not covered by the expression "workman" as envisaged in section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968; therefore, petition under section 25-A of the Industrial Relations Ordinance, 1969, was not maintainable and consequently; Punjab Labour Court No.7, as well as Punjab Labour Appellate Tribunal, Lahore, had no jurisdiction in the matter, thus the impugned order is void ab initio and coram non judice. In this regard, he has placed reliance on a case; Abdul Malik v. National Education Society 1987 P L C 224.
7. Whereas, the learned counsel for respondent No.3 contends that he is a "workman" within the meanings of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, as well as, the Industrial Relations Ordinance, 1969; thus is entitled to the remedy, catered for by section 25-A of the Industrial Relations Ordinance, 1969, and the Courts below had the jurisdiction to adjudicate upon the matter. It was further contended that the question of jurisdiction having not been raised before the two forums below cannot be agitated for the first time in these proceedings. On merits of the case, the learned counsel for respondent No.3, apart from the question of jurisdiction, contends that dismissal order, dated 15-7-1981, is illegal, without lawful authority and warrants to be set aside for the reasons that:-(i) the Vice-Chairman was not competent to pass the dismissal order, under the Rules, since it is only the Chairman i.e. the appointing authority who can do so; (ii) it has been passed ex parte, without notice to respondent No.3, (iii) second notice mandatorily required by the Rules before imposing the major penalty of dismissal has admittedly not been issued, (iv) it is mala fide, and finally (v) being the ultimate penalty is far too harsh in the circumstances of the case.
8. I have heard arguments of the learned counsel for the parties and intend to advert to each point hereinbelow.
9. The fundamental question around which arguments of the parties have revolved is as to whether respondent No.3, is a "workman" or not; because if he is held to be a "workman", then there is a concurrent finding of fact holding dismissal order dated 15-7-1981 as illegal and without lawful authority; consequent to which respondent No.3 stands re-instated in service with back benefits. However, if it turns out to be that respondent No. 3 is not a "workman" then as a necessary corollary thereof the two Courts below had no jurisdiction to adjudicate in the matter, thus both the orders suffer from jurisdictional defect and are void ab initio, whereby the dismissal order dated 15-7-1981 stands resurrected and may warrant its vires to be adjudged.
10. Firstly I propose to advert to the objection raised by the learned counsel for respondent No.3, as to whether question of jurisdiction having not been raised before the Courts below can it be agitated for the first time in these proceedings or not. Since the question of jurisdiction goes to the very competency of the Courts below, thus is a question of law; therefore, I allow the same to be taken up in these proceedings in the interest of justice.
11. I have examined import of the expression "workman" as enshrined in West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (VI of 1968) (hereinafter for the sake of convenience referred to as the Standing Orders Ordinance) and Industrial Relations Ordinance, 1969 (XXIII of 1969) (hereinafter referred to as the Industrial Relations Ordinance), and prefer to deal with the Standing Orders Ordinance in the first place.
12. To discover the parameters of the scope of applicability of the Standing Orders Ordinance, it is conducive to refer to the Preamble, and section 3 of the Ordinance which are reproduced hereinbelow:
"Preamble.--Whereas it is expedient to amend and consolidate the law relating to industrial employment in the Province of West Pakistan:"
"3. Enforcement of Standing Orders.--In every industrial or commercial establishment, conditions o the employment of workmen and other incidental matters shall, subject to the other provisions of this Ordinance, be regulated in accordance with the Standing Orders. "
A perusal of the aforegoing provisions reveal that although the preamble ventures to deploy the expression "Industrial employment" but section 3 extends the biting teeth of the Standing Orders Ordinance to both Industrial as well as Commercial establishments. Both these expressions have been statutorily defined. Section 2(b) defines the expression 'commercial establishment' in exclusionary terms by using the prefix "means" and reads as under:--
"2(b) "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 purposes of fulfilling a contract with the owner of any commercial 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 establishment or class thereof, as Government may, by notification in the official Gazette declare to be a commercial establishment for the purposes of this Ordinance."
Whereas the expression "Industrial establishment" has been defined in section 2(f) in equally exclusionary terms, using the same formula, "means" in the following terms:
"2(f) "industrial establishment" means--
(i) an industrial establishment as defined in clause (ii) of section 2 of the Payment of Wages Act, 1936 (IV of 1936); or
(ii) a factory as defined in clause (j) of section 2 of the Factories Act, 1934 (XXV of 1934); or
(iii) A Railway as defined in clause (4) of section 3 of the Railways Act, 1890 (IX of 1890), or
(iv) the establishment of a contractor who, directly or indirectly, employs workmen in connection with the execution of a contract to which he is a party, and includes the premises in which, or the site at which, any process connected with such execution is carried on; or
(v) the establishment of a person who, directly or indirectly employees workmen in connection with any construction industry.
Explanation: "Contractor includes a Sub-contractor, headman or agent."
13. Clauses (i), (ii) and (iii) supra, are specie of legislation by reference; therefore, for the sake of comprehensive comprehension, the text of these clauses is also set out hereinbelow:-
(i) "Industrial establishment" under the Payment of Wages Act, 1936 means:
Section 2(ii):
(a) tramway or motor omnibus service;
(b) dock, wharf or jetty;
(c) inland steam-vessel;
(d) mine, quarry or oilfield;
(e) plantation;
(f) workshop or other establishment in which articles are produced, adapted or manufactured, with a view to their use, transport or sale;
(g) establishment of a contractor who, directly or indirectly, employs persons in any industrial establishment to do any skilled or unskilled, manual or clerical labour for hire or reward in connection with the execution of a contract to which he is a party, and includes the premises in which, or the site at which, any process connected with such execution is carried on.
Explanation: "Contractor" includes a Sub-contractor, headman or agent."
(ii) "Factory" under the Factory Act, means:
Section 2(j):
"Factory" means any premises, including precincts thereof, whereon twenty or more workers are working, or were working on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on or is ordinarily carried on whether with or without the aid of power but does not include a mine, subject to the operation of the Mines Act, 1923 (IV of 1923).
(iii) "Railway" under the Railways Act, 1890, means:
Section 3(4):
'railway' means a railway, or any portion of a railway for the public carriage of passengers, animals or goods and includes-
(a) all land within the fences or other boundary-marks indicating the limits of the land appurtenant to a railway;
(b) all lines of rails, sidings, or branches worked over for the purposes of, or in connection with a railway;
(c) all stations, offices, warehouses, wharves, workshops, manufactories, fixed plant and machinery and other works constructed for the purposes of, or in connection with, a railway; and
(d) all ferries, ships, boats and rafts which are used on inland waters for the purposes of the traffic of a railway and belong to or are hired or worked by the authority administering the railway."
14. A conjunctive reading of the aforestated statutory provisions demonstrates beyond any ambiguity that the Standing Orders Ordinance is designed to regulate only employment in relation to Industrial and Commercial Establishments as circumscribed by the statutory definitions in exclusionary terms set out above and beyond these orbits it would be an alien notion.
In this view of the matter, I am impelled to hold that M. C. School Lalamusa, managed by petitioner does not fall within the ambit of the expression "Industrial and Commercial Establishment" as enshrined above; therefore, the Standing Order Ordinance cannot have its tentacles extended so as to embrace the activities of the school in question.
15. The second requisite condition precedent for invocation of jurisdiction of the two Courts below for recourse under section 25-A of the Industrial Relations Ordinance, is that applicant should be a 'workman' within the meanings of section 2(i) of the Standing Orders C Ordinance, which reads as under:
"2(i) "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."
The inbuilt salient characteristic prescribed by the above statutory provision is that applicant must be doing any skilled or unskilled, manual or clerical work.
Respondent No.3 is admittedly a school teacher, and by the known nature of his duties, objectively speaking on the basis of universally acknowledged standards, of which, judicial notice can safely be taken, by no stretch of imagination undertakes a venture which falls within the mischief of section 2(i) of the Standing Orders Ordinance. The nature of duties of respondent No.3 can neither be classified as skilled or unskilled, manual or clerical work in the context of Industrial or Commercial establishments as defined supra; hence he is not a "workman" as contemplated by the Standing Orders Ordinance. Reliance, in this regard, is placed on Abdul Malik v. National Education Society 1987 P L C 224; K.G. Old, Principal, Christian Technical Training Centre, Gujranwala v. Presiding Officer, Punjab Labour Court, Northern Zone and 6 others 1976 P L C 675 and Muhammad Aqil v. Sind Labour Appellate -Tribunal and another P L D 1978 Kar. 649.
Accordingly, I hold the view that respondent No.3 is not a "workman" as contemplated by the Standing Orders Ordinance.
16. Now I advert to the Industrial Relations Ordinance. The expression 'workman' has been defined in Section 2(xxviii) which is reproduced hereinbelow:
"(xxviii) "Worker" and "Workman" means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be expressed or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off or removal has led to that dispute but does not include any person-
(a) who is employed mainly in a managerial or administrative capacity, or
(b) who is being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature."
The words of predominant significance for the present purposes are:
"and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute ...."
The expression "industrial dispute" has been defined in section 2(xiii) which reads as under:
"2(xiii) "Industrial dispute" means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is concerned with the employment or non-employment or the terms of employment or the conditions of work of any person and is not in respect of the enforcement of any right guaranteed or secured to him by or under any law, other than this Ordinance, or any award or settlement for the time being in force."
17. The cumulative effect of combined reading of the above-referred provisions, convincingly demonstrates that a dismissed person within the meanings of Industrial Relations Ordinance would be workman only if his dismissal was in connection with an "Industrial dispute" and would be entitled to avail of the remedial proceedings catered for in the Industrial Relations Ordinance, inter alia, under section 25-A, only in relation to any right guaranteed or secured to him under the Industrial Relations Ordinance and not under any other law. Reliance in this regard is placed on the case of Superintending Engineer (H.Q.) Irrigation, Lahore Zone and another v. Punjab Labour Appellate Tribunal and another 1987 P L C 180.
18. The learned counsel for respondent No.3 argued that respondent No.3 is workman within the connotation of section 2(xxviii) of the Industrial Relations Ordinance since he had certain rights guaranteed or secured under the Punjab Local Government Ordinance, 1979 and West Pakistan Local Council Servants (Efficiency and Discipline) Rules, 1963; thus is entitled to avail of the remedy envisaged in section 25-A of the Industrial Relations Ordinance; and the two Courts below had the jurisdiction to adjudicate upon the matter.
I am afraid the law as stated above is otherwise. The dismissal of respondent No:3 was not in connection with an industrial dispute, since he had no right under the Industrial Relations Ordinance. Rights, if any, under the Punjab Local Government Ordinance, 1979 and West Pakistan Local Council Servants (Efficiency and Discipline) Rules, 1963, cannot be enforced by virtue of a petition under section 25-A of the Industrial Relations Ordinance.
19. In view of the above discussion, I am of the opinion that respondent No.3 is not a workman either within the meanings of the Standing Orders Ordinance or the Industrial Relations Ordinance, therefore, was not entitled under the law to avail of the remedy ash provided under section 25-A of the Industrial Relations Ordinance and, consequently, the two Courts below had no jurisdiction in the matter, therefore, the orders of Punjab Labour Appellate Tribunal dated 26-6-1984 and that of Punjab Labour Court No.7 dated 31-8-1983 suffer from inherent jurisdictional infirmity, are coram non judice, void ab initio and accordingly are set aside being of no legal consequence.
20. Before parting with this issue, I may add that respondent No.3 being an employee of petitioner, his terms and conditions of service, apart from contract were governed by the Punjab Local Government Ordinance, 1979 and the West Pakistan Local Council Servants (Efficiency and Discipline) Rules, 1963, consequently he could have availed of the remedies prescribed therein or to have a recourse to the ordinary civil Courts of original jurisdiction (if otherwise not specifically excluded) or a constitutional petition before this Court.
21. After orders of the two labour Courts have been set aside, the order of dismissal, dated 15-7-1981 re-emerges to the surface, vires of which have been questioned by the learned counsel for respondent No. 3.
I hold the view that employees of Municipal Corporation or for that matter Municipal Committees are employees of local authority anti their terms and conditions of service are governed by statutory rules and any violation of these rules would be amenable, and subject, to the supervisory jurisdiction of the High Court. I am fortified in this regard by the following case-law:
(1) M.S. Faruki, Chief Officer, Lahore Municipal Corporation, Lahore v. The Province of West Pakistan and another P L D 1970 Lah. 195, and
(2) Syed Fayyaz Qadri, Advocate v. The Administrator, Lahore Municipal Corporation, Lahore and 4 others P L D 1972 Lah, 316.
22. In the instant case it is contended that respondent No.3 has been dismissed from service in violation of the statutory rules; vide order of dismissal dated 15-7-1981; therefore, obviously would be hit by the principle of laches. But, since respondent No.3 has been vigorously persuing his remedies, throughout, though before a wrong forum, may be under an erroneous advice of his counsel, but with a bona fide impression and has not slept over it, therefore, there is sufficient explanation available on the file for the same. Further more, it would be an appropriate case for pressing into service provisions of section 14 of the Limitation Act, with a view to supplementing the rational explanation against delay, in the light of the humane aspect of the matter. Respondent No.3 had put in 18 best years of his life in imparting knowledge to the upcoming generation of petitioner municipal committee a sacred duty which he was forced to abandon due to complete and permanent incapacitation and has been rendered unfit for any further service. Invalid certificate has been issued by the Standing Invaliding Committee of the Local Bodies. This certainly should not have been the time for petitioner to shed off respondent No.3, allegedly in violation of the statutory rules.
25. Therefore, in the interest of justice, I chose to examine the validity of the dismissal order. I have gone through the entire record with the help of the learned counsel for the parties.
On examination of the record it transpires that basically they first count on which the major penalty of dismissal from service has been imposed is that respondent No.3 remained absent from duty from 12-10-1980 to 15-10-1980 and subsequently from 11-11-1980 to 17-1-1981. A perusal of the record reveals that the first period of absence is concerning the time which respondent No.3 had consumed in obedience to the orders issued by petitioner vide letter dated 6-10-1980. This finds support from evidence of P.W.3 (respondent No.3) who was not cross-examined on this point in the proceedings before the trial Court, his statement remains unrebutted, and thus stands proved.
Furthermore, it has been stated that respondent No.3 was not served with any notice after service of the charge-sheet. P.W.1, the Inquiry Officer, in his statement has categorically stated that he upon appointment as Inquiry Officer on 2-5-1981, sent a notice to respondent No.3 at his school address but no other notice was sent nor a cutting of citation in the press was sent to respondent No.3. He has further stated that he only examined the file in the absence of respondent No.3, and did not examine any body nor any body's statement in this behalf, during the inquiry proceedings were recorded even ex parte. It is in the statement of R.W.2, Sajjad Hussain, Head Clerk of petitioner committee that respondent No.3 filed an application for retirement on medical grounds. Medical Officer, Lala Musa referred him to District Headquarters Hospital, Jhelum. He has also categorically stated that when an employee of the office is sent on some official errand, his non-presence is not treated as absence from duty, but is deemed to be on duty. There is no evidence on the record that service of notice was effected on respondent No.3 during inquiry proceedings. Actually the Inquiry Officer (R.W.1) has frankly stated that the solitary notice was despatched to his school address, obviously he could not receive it. This aspect cast doubt on the bona fide of notice issuing authority, it should have been addressed to him at his home address, which petitioner is expected to have, if it was genuinely minded to have him served.
26. There is yet another aspect of the matter i.e. the impugned order was passed by Vice-Chairman, in exercise of powers under West Pakistan Local Councils Servants (Efficiency and Discipline) Rules, 1963. In rule 12 it is stated that "no authority subordinate to the authority by which a local council servant is appointed shall be competent to impose on him a major penalty under the rules."
In the instant case the appointing authority in relation to respondent No.3 was the Chairman, whereas the termination order has been issued under the signatures of Vice-Chairman. The learned counsel for petitioner has tried to argue that under section 36 of the Punjab Local Government Ordinance, 1979, executive powers of the Chairman may be exercised directly by himself or through any other functionary or official. This argument is unmindful of the fact that this provision preconceives the notion of delegation of power. This argument merits no consideration since no delegation was made in the present case. On this account alone, the impugned order warrants to be set aside.
27. Furthermore, rule 36 of the West Pakistan Local Council Servants (Efficiency and Discipline) Rules, 1963, contemplate in imperative terms, before imposition of major penalty, second show-cause notice; which is admitted at the Bar by the learned counsel for petitioner, having not been issued nor such notice find any mention in the record available before this Court. Therefore, on this ground as well, order of dismissal merits to be set aside.
28. As noticed earlier, respondent No.3 has sufficiently explained his being away on the relevant dates in obedience to the express directions of Chairman of petitioner for medical examination; therefore, it cannot be termed as absence from duty. So the first charge stands rebutted and disproved.
In relation to the second charge, i.e. absence during suspension period, it is stated that in the suspension order, nowhere, it is mentioned that respondent No.3 should attend to his duty. Therefore, he was not required to do so. Thus, even on factual plain, respondent No.3 cannot be termed as absent from duty warranting major penalty.
29. It is highly significant to note that upon reference by petitioner to Medical Superintendent, District Headquarter Hospital, Jhelum, the Medical Superintendent vide letter dated 15-7-1981, recommended to petitioner that respondent No.3 on medical ground is advised rest for two months, and on the same date petitioner had chosen to dismiss respondent No.3 from service, by imposing major penalty. This speak of nothing short of mala fide.
In view of the above discussion, the dismissal order dated 15-7-1981, is set aside. Respondent No.3 is re-instated in service with full benefits. However, the question of invalid retirement will be determined by the competent authority in view of the certificate issued by the Standing Medical Board for Local Bodies dated 14-10-1981. There shall be no orders as to costs.
M.B.A./M-160/L
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