1993 P L C 687

[Karachi High Court]

Before Haziqul Khairi and Abdul Rahim Kazi, JJ

PAKISTAN INTERNATIONAL AIRLINES CORPORATION

Versus

MUHAMMAD SAEED and another

C.P. No. 477 of 1991, decided on 25th April, 1993.

(a) Pakistan International Airlines Corporation Act (XIX of
1956)---

----S. 10(2), (3) & (4) [omitted by Pakistan International Airlines
Corporation (Amendment) Act (VII of 1989)]---Service Tribunals Act
(LXX of 1973), S. 4---West Pakistan Industrial and Commercial
Employment (Standing Orders) Ordinance (VI of 1968),
Preamble---Industrial Relations Ordinance (XXIII of 1969), S.
25-A---Employees of Pakistan International Airlines Corporation,
before the amendment of S. 10, Pakistan International Airlines
Corporation Act, 1956 by Act VII of 1989, were deemed to be civil
servants for purposes of Service Tribunals Act, 1973; there being a clear
bar to the 'applicability of West Pakistan Industrial and Commercial
Employment (Standing Orders) Ordinance, 1968 and Industrial
Relations Ordinance, 1969 to its officers, advisors and
employees---Effect of amendment to S. 10 of the Pakistan International
Airlines Corporation Act by amending Act VII of 1989 was that Service
Tribunals Act, 1973 was no more in the field nor there remained any
embargo on the applicability of Labour Laws viz. Act VI of 1968 and
Act XXIII of 1969 to the officers, advisers and employees of
Corporation if otherwise the same extended to them.

(b) Pakistan International Airlines Corporation Act (VII of 1956)---

----S. 10(2), (3) & (4) [omitted by Pakistan International Airlines
Corporation (Amendment) Act (VII of 1989)]---Industrial Relations
Ordinance (XXIII of 1969), S. 25-A---Compulsory retirement of
employee of Corporation---Labour Laws---Applicability---Labour Laws
viz. Industrial Relations Ordinance, 1969 and other laws applicable to
workmen were made applicable to employees of Pakistan International
Airlines Corporation with effect from 1-11-1989 by omitting cls. (2), (3)
& (4) of S. 10 of Act XIX of 1956 by the amending Act VII of
1989---Order of compulsory retirement of employee was passed on
15-10-1989 but such order was neither pronounced in the presence of
employee (respondent) nor notice thereof, was given to him prior to its
pronouncement---Such order was, however, signed by the competent
Authority on 15-10-1989 and thereafter, on the same date sent to
respondent by post who received the same on 4-11-1989---Merely
signing of order by competent Authority would be of no legal effect
unless such order was first prnounced in the presence of party/parties
and in case same was not pronounced in his or their presence, such
order would be deemed to be effective on the date of receipt of the same
by him/them---Order passed by Labour Appellate Court was thus valid
and had been passed within its jurisdiction.


A.G. Siddiqui for Petitioner.

Habibur Rehman and Sajjad Ali Shah for Respondents.

Date of hearing: 18th January 1993.

JUDGMENT

HAZIQUL KHAIRI, J: --On 3-12-1988 respondent No. 1 namely
Muhammad Saeed, Store Supervisor in Pakistan International Airlines,
the petitioner herein, was suspended on the charge of accepting the short
supply of 191 reams of white offset papers from Suppliers M/s. Shaukat
Paper Mart, Karachi and was charge-sheeted vide show-cause notice,
dated 8-12-1988, which reads as follows:

PIA ACQUISITION AND MATERIAL SUPPORT
DEPARTMENT

CO
NFIDENTI
AL

GM:
MS:
P-1108:88

8th
December,
1988.

Mr. Muhammad Saeed,

P-11408,

Store Supervisor,

Stockroom-41/64.

Through Mangier Material Support Commercial

Subject: Show-Cause Notice

You Mr. Muhammad Saeed, P-11408, Store Supervisor, Stockroom
41/64 are hereby charged for committing act National Airlines
Corporation Employees (Service and Discipline) Regulations, 1985.

(2) The following charges have been levelled against you regarding
"Short Supply of Offset Paper White size 11-1/2x8-1/2" 90 grams
against Acquisition (Commercial) Order Number D-732/89, vide
delivery Challan No. 000074, dated 23rd October, 1988 by M/s.
Shaukat Paper Mart, Karachi:--

(a) It is established that you manoeuvred to stock an unrecorded surplus
quantity of 191 reams of Offset Paper white size 11-1/2 x 8-1/2" 90
grams.

(b) It is also established that you with the connivance of the Supplier
planned and accepted short supply of 191 reams against the above order.

(3) Now, therefore, in view of the above facts and accusation levelled
against you, you are required to show cause within three days of receipt
of this show-cause notice as to why disciplinary action should not be
taken against you under the provisions of Regulation 75(f) of the PIAC
Employees (Service and Discipline) Rugulations,1985.

(4) In case you fail to submit your explanation in writing within the
stipulated period, it will be presumed that you have admitted the charge
and further action as per applicable under Rules and Regulations of the
Corporation will be taken against you.

(
Sd.)

(JA
VED
YOUSUF)

GENERAL MANAGER,
MATERIAL SUPPORT

cc: Director A&MS.

cc: General Manager Vigilance

cc: Manager Material Support Comml.

cc: Administrative Manager A&MS:'

The respondent No. 1 submitted his reply to the show-cause notice but
was not found satisfactory by the competent Authority of the petitioner
Corporation. The competent Authority constituted the Enquiry
Committee in accordance with the Services and Disciplines Rules of the
petitioner Corporation which found respondent No. 1 guilty of charge.
Subsequently respondent No. 1 was given further opportunity of
personal hearing but he could not explain and satisfy the competent
Authority about his misconduct. Keeping in view his length of services,
the petitioner instead of dismissing the respondent No. 1, compulsorily
retired him from service vide order dated 15-10-1989. The respondent
No. 1 thereafter on 22-11-1989 sent a grievance notice under section
25-A of the Industrial Relations Ordinance, 1969 (hereinafter called
I.R.O.) to the petitioner which was duly replied by them stating that the
I.R.O. was not applicable to his case for the reason that when the order
for his compulsory retirement was passed on 15-10-1989, I.R.O. was
not made applicable to the petitioner. However, the respondent No. 1
filed an application being 182 of 1989 under section 25-A of I.R.O.,
1969 in the Court of IV Sindh Labour Court calling in question his
compulsory retirement. The said application was dismissed on merits as
well as on the point of jurisdiction by the Labour Court vide order dated
16-10-1990. Respondent No. 1 being aggrieved preferred an appeal
before the Sindh Labour Appellate Tribunal at Karachi, respondent No.
2, who by its order dated 28-2-1991 set aside the order passed' by the
learned IV Sindh Labour Court at Karachi with direction to the
petitioner to reinstate the respondent No. 1 with all back benefits.

There is no controversy that subsections (2), (3) and (4) of the
Ordinance No. LIII of 1984 of section 10, Pakistan International
Airlines Corporation Act, 1956 were omitted by P.IA.C. Amendment
Act, 1989 dated 1-11-1989. Earlier to the amendment, except a person
on deputation, every one' in service of the Corporation was deemed to
be civil servant for the purposes of the Service Tribunals Act, 1973 and
there was a clear bar to applicability of the West Pakistan Industrial and
Commercial Employment-(Standing Orders) Ordinance, 1968 and the
Industrial Relations Ordinance, 1969, to its officers, advisors and
employees. The effect of the amendment was that the Service Tribunals
Act, 1973 was no more in the field nor there remained any embargo on
the applicability of the said Labour Laws to the officers, advisors and
employees of the petitioner if otherwise the same extend to them. We
are thus left with the short point to consider as to whether the date on
which the impugned order was signed though not communicated to the
respondent or the date on which it was actually communicated to him
was the date of the passing of order. This question will also determine
the status of the respondent and the maintainability of the respondent's
application under section 25-A of I.R.O. of 1969.

In 1986 SCMR it was held that the judgment is to be dated and signed at
the time of pronouncing it. In PLD 1962 SC 97 and PLD 1982 Kar. 250
it was held that merely writing and signing a judgment is not enough, it
must be pronounced before it can become effective. Under Order XX,
Rule 1, C.P.C. the Court, after the case has been heard, shall pronounce
judgment in open Court, either at once or on some future day, of which
due notice shall be given to the parties or their pleaders. In PLD 1976
Lah. 1162, it was held that a judgment shall be pronounced only after
due notice is given in accordance with section 142, C.P.C. The order
dated 15-10-1989 passed by the "the competent Enquiry Committee"
which is stated to have decided the fate of the respondent was neither
pronounced in the presence of the respondent nor notice thereof was
given to him prior to its pronouncement but it was first signed by the
competent Authority of the petitioner on 15-10-1989 and thereafter on
some date it was sent to the respondent No. 1 by post who received it on
4-11-1989. We are, therefore, of the view that merely signing of the
order by the "Competent Enquiry Committee" shall be of no legal effect
unless it is first pronounced in the presence of the party/parties and in
case it is not pronounced in his -or their presence it shall be deemed to
be effective on the date of receipt of the same by Item/them. In the
result the petition is dismissed with no order as to cost and we find no
reason to interfere with the judgment of the learned Sindh Labour
Appellate Court ordering reinstatement of the respondent in service with
back benefits.


A.A./P-278/K
Petition dismissed.