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Petitioner: Dr. ANWAR ALI SAHTO VS Respondent: FEDERATION OF PAKISTAN
2002 P L C (C
2002 P L C (C.S.) 526
[Supreme Court of Pakistan]
Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif, Qazi Muhammad Farooq, and Mian Muhammad Ajmal, JJ.
Dr. ANWAR ALI SAHTO and others
versus
FEDERATION OF PAKISTAN and others
Civil Appeals Nos. 366 to 378, 613 to 637, 648 to 655, 985, 986, 1113 to 1124 and Civil Petitions Nos.745 to 760, 1263 to 1341, 1877 to 1921, 1926, 1934 to 2067 of 2001, Civil Appeal No. 120 of 1999 and Civil Petitions Nos. 1381, 1459, 2112 and 1515 of 2001.
(On appeal from judgment dated 17‑2‑1999, 27‑5‑2000, 6‑6‑2000, 16‑11‑2000, 17‑4‑2000, 19‑4‑2000, 29‑5‑2000, 3‑6‑2000, 24‑5‑2000, 27‑4‑2000 and 13‑4‑2001 passed by the Federal Service Tribunal, Islamabad and Camp at Karachi in Appeals Nos.161(R)/1998, 573(k)/99 to 575(k)/99, 578(k)/99, 618(k)/99, 765(k)/99, 1266(k)/99, 577(k)/99, 526(k)/99, 1160(k)/99, 1159(k)/99, 1168(k)/99, 1169(k)/99, 1171(k)/99, 1166(k)/99, 1239(k)/99, 1238(k)/99, 1162(k)/99, 550(k)/99, 641(k)/99, 1161(k)/99, 1174(K)/99, 1176(k)/99, 1172(k)99, 711(k)/99, 69(k)/98, 2464(k), 2465(k) to 2474(k)/97 and judgment dated 25‑5‑2000, 1‑6‑2000, in Appeals Nos.1067(K) to 1073(k)/99 and 1209(k)/99 and judgment dated 23‑9‑2000 in Appeals Nos.2178(R)/99, 2166(R)/99 and judgment dated 29‑1‑2001 in Appeals Nos.2325(R). to 2336(R)/99, 70(R)/2000, 71(R)/2000, and judgment dated 23‑1‑2001 in Appeals Nos.229(K)/99, 231(k) to 234(k)/99, 236(k), 237(k). 241(k), 246(k). 247(k), 251(k), 254(k), 255(k), 257(k) 245(k)/99 and judgment dated 21‑3‑2001 in Appeals Nos. 553(R) (CE) to 631(R) (CF)/2000 and judgment dated 12‑5‑2000 in Appeals Nos.855(R)/99, 2267(R) to 2286(R)/99, 2390(R)/99, 2291 to 2298(R)/99, 2301(R) to 231R(R)/99, 2377(R)/99, 771(R)/99, 791, 766, 827, 794, 861, 818, 765, 2388, 2300, 1214, 1255, 634, 1193, 1211, 1203, 1213, 1201, 1241, 1209, 835, 770, 811, 793, 798, 831, 819, 796, 809, 862, 856, 768, 821, 824, 2331, 1207, 814, 2290, 789, 763, 2287, 806, 1256, 820, 815, 2278, 817, 1115, 1118, 1111, 1218, 1210, 1248, 1198, 1217, 1240, 1244, 1202, 834, 2333, 1250,.1212, 2097, 2313, 1252, 1267, 1190, 1216, 1205, 1194, 1249, 633, 1116, 773, 2305, 859, 2332, 1208, 1243, 637, 1200, 1196, 1195, 1239, 783, 790, 822, 839, 1215, 636, 1191, 1114, 1117, 1120, 1112, 1119, 1192, 1189, 1113, 635, 632, 1242, 1246, 1204, 1259, 1260, 1258, 1247, 1251, 2334, 1257, 1262, 842, 803, 875, 833, 854. 2299, 828, 1245, 1188, 1266, 1199, 1197, 1206, 2289, 804, 808, 790, 826, 853, 816, 777(R)/99 and judgment dated 28‑7‑1998 in Appeals Nos. 190(K)/98 and judgment dated 23‑9‑2000 in Appeals Nos.2308(R)/99, 2240(R)/99, 2237(k)/99 and 798(k)/99).
(a) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 2‑A‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Contract employees of. a Corporation‑‑‑Termination of services of such employees‑‑‑Neither the' contract was terminated nor the same was renewed on expiry of stipulated period of six months‑‑‑Services ‑of employees were however, terminated when all of them .had, more or less, served the employer‑Company for 1‑1/2 to 2‑1/2 years on the ground that their services were on contract basis‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider as to whether services of the employees had been rightly terminated by the employer‑Company in view of the fact that they had accepted their appointments on contract basis for a period of six months; that whether the employees had attained status of confirmed employees after completion of initial period of six months because after this period the contract of their service was not terminated and no letter of fresh contract was issued by the employer, if so, to what effect; that whether for non‑termination of services of the employees exactly after the expiry of initial period of six months their services were to be governed by the Company's Service Rules; that what would be the effect of judgments of Supreme Court in cases of Managing Director, Sui Southern Gas Co. Ltd. v. Saleern Mustafa Shaikh PLD 2001 SC 176, Engineer Narain Das and others v. Sui Southern Gas Co. 2002 SCMR 82, Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71 and Sui Southern Gas Company v. Narain Das and others PLD 2001 SC 555.
Managing Director; Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176; Engineer Narain Das and others v. Sui Southern Gas Co. 2002 SCMR 82; Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71 and Sui Southern Gas Company v. Narain Das and others PLD 2001 SC 555 ref.
(b) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 2‑A‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Civil service‑‑ Contract employees of a Corporation‑‑‑Termination of services of such employees‑‑‑Neither the contract was terminated nor the same' was renewed on expiry of stipulated period of six months‑‑‑Services of employees were however, terminated when all of them had, more or less, served the employer‑Company for 1‑1/2 to 2‑1/2 years on the ground that their services were on contract basis‑‑‑Validity‑‑‑Contractual appointments of employees were not transformed into regular appointments through any formal order/s‑‑‑Contract assignment could not become permanent by efflux of time‑‑‑Continuation of the contract of employment was the result of the continuation of the project beyond the period of six months for which the employees were initially inducted into service‑‑‑Period of six months being the mainstay of the contracts in question, could not be equated with "probationary period" by any stretch of imagination‑‑‑"Contract period" and "probationary period" have distinct connotation altogether‑‑‑Employees having been :appointed on contract basis for a specific project and their services having been terminated on the completion of the projects in question, they could be dealt with by terminating their contracts of service within the contemplation of their respective appointment letters‑‑‑Contract period of the employees having not been extended, Service Rules of the, employer- Company would not take over the matter and the contract appointments continued to hold the field throughout.
Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176; Engineer Narain Das and others v. Sui Southern Gas Co. 2002 SCMR. 82; Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71 and Sui Southern Gas Company v. Narain Das and others PLD 2001 SC 555 distinguished.
(c) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 2‑A‑‑‑Contract employees of a Corporation/Company‑‑ Termination of services of such employees‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Principles‑‑‑Where the grievance of such employees flows from ‑a contract of service not governed by any statutory rules or departmental rules having the force of law, the jurisdiction of Service Tribunal is confined' to examination of the grievance of the dismissed/terminated employee on the touchstone of the terms and conditions of the contract of service/letter of appointment‑‑‑If the letter of appointment envisages termination of employee on one month's notice, Service Tribunal has no jurisdiction to alter the terms and conditions mutually agreed upon between the employer and the ‑employee while exercising its jurisdiction in terms of S.2‑A of Service Tribunals Act, 1973 which has been intended to provide a forum even to those employees of a Corporation/Statutory Body etc. who are recruited on contract basis and in appropriate case such employees could be reinstated in service in accordance with the terms of their contract of service or the rules applicable to them, as the case may be.
Prior to incorporation of section 2‑A, in the Service Tribunals Act, 1973, it was settled law that an employee of a Corporation, in the absence of violation of law or any statutory rule, could not press into service Constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement in service. His remedy against wrongful dismissal/termination or reduction in rank, etc., was to claim damages.
However, after insertion of section 2‑A an employee of Corporation/Company covered thereunder can approach the appropriate Service Tribunal for redress of his grievance against wrongful dismissal/termination etc. even in the absence of violation of law or any statutory or non‑statutory rule in that regard. The Tribunal, seized of the matter, can go into all questions of facts and law for determining whether the order passed by Department/Corporation is justified on facts as well as on law. In case of violation of a statutory/non‑statutory rule or instruction having the force of law, appropriate orders can be passed by the Tribunal rectifying the wrong done to the employee. However, where the grievance flows from a contract of service not governed by any statutory rules or departmental rules having the force of law, the jurisdiction of the Tribunal is confined to examination of the grievance of the dismissed/terminated employee on the touchstone of the terms and conditions of the contract of service/letter of appointment. If in a given case the letter of appointment envisages termination of an employee on one month's notice the Tribunal has no jurisdiction to alter the terms and conditions mutually agreed upon between the employer and the employee while exercising its jurisdiction in terms of section 2‑A which has been intended to provide a forum even to those employees of a Corporation/Statutory Body, etc. who are recruited on contract basis and in appropriate cases they could be reinstated in service in accordance with the terms of their contract of service or the rules applicable to them, as the case may be.
The intention of the Legislature appears to be to provide a forum to the employees of Corporations etc. against their arbitrary removal, discharge from service or other final orders that may be passed by such Corporations adversely affecting their terms ‑and conditions of service. Where the employees were not civil servants within the meaning of the Civil Servants Act, 1973 and where no statutory or service rules were framed by the employer/Corporation, the terms and conditions of service of such employees were wholly regulated by their contracts of employment and after insertion of section 2‑A, such employees had a right to approach the appropriate Service Tribunal for protection of their rights of employment flowing from such contracts of service.
Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176; Engineer Narain Das and others v. Sui Southern Gas Co. 2002 SCMR 82; Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71 and Sui Southern Gas Company v. Narain Das and others PLD 2001 SC 555 distinguished.
(d) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 2‑A‑‑‑Constitution .of Pakistan (1973), Art.212(3)‑‑‑Temporary employees of a Corporation/Company‑‑‑Termination of services of such employees who had served the Company for more than an aggregate period of three/four years‑‑‑Service Tribunal dismissed appeals of the employees holding that they were appointed on temporary basis for a temporary assignment in the Company's project on fixed emoluments, therefore, their services could be terminated on completion of the particular project‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider as to whether services of the employees had been rightly terminated by the Company in .view of the fact that they had accepted appointments as temporary employees of the Company's particular project; that whether employees had attained status of permanent employees after serving the Company for more than a period of 3/4 years because during such period their services were not terminated nor fresh letters of appointment as temporary employees were issued by the Company, if so, to what effect; that whether in view of the fact that employees had served for a continuous period of more than 3/4 years, their services will be governed by the Service Rules of the employer‑Company and that what would be the effect of the judgments delivered by Supreme Court in the cases of Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176; Engineer Narain Das and others v. Sui Southern Gas Co. 2002 SCMR 82, Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71, decided on 28th March, 2001 and Sui Southern Gas Company v. Narain Das and others PLD 2001 SC 555.
Managing Director. Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176; Engineer Narain Das and others v. Sui Southern Gas Co. 2002 SCMR 82: Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71 and Sui Southern Gas Company v. Narain Das and others PLD 2001 SC 555 ref.
(e) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 2‑A‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Temporary employees of a Corporation/Company‑‑‑Termination of services of such employees‑‑‑Leave to appeal was granted to see whether the cases being identical with the cases of Engineer Narain Das v. Sui Southern Gas Co. Ltd. 2002 SCMR 82 and The Managing Director, SNGC Ltd. v. Saleem Mustafa Sheikh PLD 2001 SC 176, the Executive Service Rules would apply to them as well.
(f) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 2‑A‑‑‑Temporary employees of a Corporation/Company‑‑ Termination of services of such employees who had served the Company for more than an aggregate period of three/four years‑‑‑Service Tribunal dismissed appeals of the employees holding that they were appointed on temporary basis for a temporary assignment in the company's project on fixed emoluments, therefore, their services could be terminated on completion of the particular project‑‑‑Validity‑‑‑Mere fact that the Corporation/Company's employees could competently invoke the jurisdiction of the appropriate. Tribunal under S.2‑A, Service Tribunals Act, 1973 would not ipso facto, have the effect of applicability of all laws relating to Government servants to such employees‑‑‑Employee aggrieved by any order passed by the Corporation/Company adversely affecting his terms and conditions of service had to show, as to which of his service rights had been violated and what was its nature i.e. whether such right flawed from statutory or non‑statutory rules and departmental instructions or a 'contract of service simpliciter‑‑‑If the terms and conditions of such employees of a Corporation/Company were governed by statutory rules, the Service Tribunal had jurisdiction to enforce the right through appropriate order‑‑‑Even a right accruing to an employee of a Corporation/Company under non‑statutory rules, which had attained the status of rules, if violated, could be enforced depending upon the facts and circumstances of each case‑‑‑Where, however, an employee was neither governed by statutory rules nor by non‑statutory rules, but by his letter of appointment/contract of service, Service Tribunal was bound to determine the rights and obligations of the parties strictly in accordance with the terms thereof‑‑‑First question, in such cases would be as to whether there was any binding contract between the parties and if so, the same had to be given effect to accordingly.
Sui Southern Gas Company v. Narain Das and others PLD 2001 SC 55.5 distinguished.
(g) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 2‑A‑‑‑Temporary assignments given to employees by a Corporation/Company‑‑‑Termination/recalling of assignments of such employees on completion of particular projects for which such employees were engaged‑‑‑Validity‑‑‑Nature of the assignment given to the employees being what it was, the company was within the domain of its authority/and jurisdiction under the very charter of its incorporation to take an action with regard to the termination/recalling of their assignments whenever the Company thought feasible/appropriate on account of closure/completion of the project/s against which they were employed temporarily‑‑‑Mere fact that the project/s for which the employees were engaged for a specific period could not be completed within the specified time and the employees continued in service till completion of such projects, would not entitle the employees to be permanently absorbed in service of the Company‑‑‑Continuing in service due to delayed completion of the project/s for a longer period than the initial period of temporary assignments, would not be a determining factor of the nature of the employment; as soon as the particular project/s, for which the employees were engaged, came to a close, their services also came to an end.
WAPDA v. Khanimullah 2000 SCMR 879 fol.
Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Sheikh PLD. 2001 SC 176; Engineer Narain Das and others v. Sui Southern Gas Company 2002 SCMR 82 and Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71 distinguished.
(h) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 2‑A‑‑‑Contract employees or employees engaged for temporary assignments by a Corporation/Company for a project for a specified period‑‑‑Termination of services of such employees or dismissal from; service‑‑‑Rule of master and servant ‑‑‑Applicability‑‑‑Principles‑‑ Services of temporary employees/contract employees could be dispensed with at any time in terms of their respective contract/s of temporary assignment‑‑‑Each case was to be decided in the light of its own peculiar circumstances with reference to the applicable law‑‑‑Precedent law was also to be kept in view in order to avoid contradictory decisions.
An employer/Corporation may have the power to terminate the services of its employees in the exigencies of, service without issuing a show‑cause notice. Clearly, an employer has two distinct rights one to take action against its employee simply by terminating his service and other to dismiss him from service for misconduct. In the latter case, before passing the order of dismissal from service against an employee, the prescribed procedure is to be adopted by the employer/Corporation under the relevant law/rules by issuing him a show‑cause notice and if such procedure is not followed by the employer/Corporation, an order of reinstatement may be passed. .But if the employer/Corporation is obliged to issue show‑cause notice with reasons for taking adverse action in a case of termination simpliciter, which might not sustain before a Court of law if such reasons are found to have stigmatized the employee, the result would be that the power of the employer/Corporation to terminate the services of its employees would be taken away. No doubt such a course is not advisable vis‑a‑vis the rule of master and servant, which is still applicable in certain cases of employment. The above findings would bring to the definite conclusion that the master and servant rule .is applicable in these cases. The services of the temporary employees could be. dispensed with at any time in terms of their respective contract/s of temporary assignment. Each case is to be decided in the light of its own peculiar circumstances with reference , to the applicable law. However, precedent law is also to be kept in view in order to avoid contradictory decisions.
United Bank Ltd. v. Ahsan Akhtar 1998 SCMR 68 and Ms Zeba Mumtaz v. First Women Bank Ltd. PLD 1999 SC 1106 ref.
(i) Civil service‑‑
Appeal to Service Tribunal ‑‑‑Limitation‑‑‑Condonation of delay‑‑ Service Tribunal has to press into service question of limitation strictly ‑‑ Delay in filing of proceedings cannot be condoned lightly because limitation creates a right in favour of one of the parties‑‑‑Sufficient reasons are to be shown or that the impugned order is coram non judice or void for any strong reasons, then the delay can be condoned.
Fazal Elahi Siddiqi v. Pakistan through Secretary, Establishment Division PLD 1990 SC 692; Chairman, PIAC v. Nasim Malik PLD 1990 SC 951 and Ali Muhammad v. Chief Settlement Commissioner 2001 SCMR 1822 ref.
(j) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 2‑A‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Trainee Engineers engaged by a Corporation/Company initially for a period of six months and later terminated from service when they had served the Company for more than two years‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider whether the case of employees was identical with other cases, decided by the Supreme Court, and if so, there was no particular justification to hold otherwise.
Engineer Narain Das and others v. Sui Southern Gas Company 2002 SCMR 82 and Managing Director, Sui Southern Gas Co.‑Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176 ref.
(k) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑S. 2‑A‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Trainee Engineers engaged by a Corporation/Company initially for a period of six months and later terminated from service when they had served the company for more than two years‑‑‑Validity‑‑‑Question raised in the matter had been considered and adjudicated upon in identical cases by the Supreme Court in the case of Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176 and Engineer Narain Das and others v. Sui Southern Gas Company 2002 SCMR 82:‑ Striking feature of the said decided cases was to the effect that after the absorption of the employees the Company may make them to take IBA Test and in the light of the result thereof, proceed with the retention or otherwise of the employees in accordance with law‑‑‑Supreme Court, in view of the decisions in the said cases converted the petitions into appeals and by allowing the same set aside the impugned judgments of the Service Tribunal therein with the direction to the employer‑Company to reinstate 'the employees in their respective disciplines and thereafter put them to IBA Test and consider their further retention in the light of the results thereof‑‑‑ "Reinstatement" and "absorption" for all intents and purposes, are synonymous expressions‑‑‑Expression "absorbed" as used in Abdul Samad v. Federation of Pakistan 2002 SCMR 71 by Supreme Court has to be construed accordingly and to that extent the Supreme Court's judgment in Abdul Samad's case also stands revisited.
(l) Civil service‑‑
‑‑‑‑‑‑ Reinstatement" and "absorption" ‑‑‑Synonymous expressions.
"Reinstatement" and "absorption" for all intents and purposes, are synonymous expressions,' in that, "reinstatement" in service involves an element of "absorption", therefore, the expression "absorbed" used in Abdul Samad .v. Federation of Pakistan 2002 SCMR 71 by Supreme Court is to be construed accordingly and to that extent the case of Abdul Samad v. Federation of Pakistan 2002 SCMR 71 also stands revisited. The findings in this case shall not, however, affect the transactions past and closed.
(m) Words and phrases‑‑
‑‑‑‑Terms "reinstatement" are "absorption" are synonymous expressions.
(n) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 2‑A‑‑‑Tetuporary employee of a Corporation/Company engaged till the completion of a particular project‑‑‑Service Tribunal, on appeal, reinstated such employee into service on the ground that his services were terminated without issuing show‑cause notice and affording him opportunity of hearing‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider whether in view of the decision of Supreme Court dated 9‑7‑1998‑passed in Civil Petitions Nos.391‑K to 456‑K of 1998, etc., the Service Tribunal could not set aside the termination order of the employee and reinstate him into service.
(o) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 2‑A‑‑‑Employee was appointed against a 'temporary assignment' for a particular project‑‑‑Termination of services of such employee‑‑ Contention of the employee was that since the projects commenced by the Company were of on‑going nature, therefore, services of the employee could be utilized for some other project‑‑‑Validity‑‑Held, in the absence of violation of any provision of law or statutory rules, no exception could be taken to the termination of service of the employee on one month's salary in lieu of notice plus other dues, if any, payable under the terms of the appointment or internal rules of the company‑‑‑If, however, the employee had been reinstated into service pursuant to the impugned judgment of the Service Tribunal, his services may be dispensed with by the Company but no recovery of the emoluments/ salaries paid to him from the date of his reinstatement into service till disposal of appeal by the Supreme Court shall be made from him in any manner whatsoever.
(p) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 2‑A‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Appeal to Service Tribunal barred by limitation ‑‑‑Condonation‑‑‑Appointment of management trainee by a Company/Corporation initially for a period of six months‑‑‑Such employee served the Company for three/four years and his services…
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