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Petitioner: FIDA HUSSAIN VS Respondent: CHAIRMAN, EMPLOYEES' OLD AGE BENEFITS INSTITUTION, KARACHI
2002 P L C (C
2002 P L C (C.S.) 1408
[Federal Service Tribunal]
Before Akbar M. Memon and Barkat Ali Baloch, Member
FIDA HUSSAIN and others
versus
CHAIRMAN, EMPLOYEES' OLD AGE BENEFITS INSTITUTION, KARACHI and others
Appeals Nos.431‑K of 1997, 118(K)(CE) to 131(K)(CE) of 2000, decided on 4th April, 2000.
Civil service‑‑‑
‑‑‑‑ Termination of services‑‑‑Civil servants though were appointed on temporary/ad hoc basis, but the word "ad hoc" did not find place in Rules of respondent Institution in which civil servants were appointed‑‑‑Civil servants served the institution for a period of more than a year and had earned good reports‑‑‑Civil servants after their appointment had undergone numerous training and refresher courses and it was not the case of the institution that they were found guilty of any misconduct or that they lacked required qualifications‑‑‑Civil servants having been appointed on clear vacancies they could not have been removed without holding proper inquiry‑‑‑Civil servants were not regularized in spite of the recommendation of the committee constituted for that purpose, but those who were working on deputation were regularized and case of the civil servants remained unattended and they were terminated despite they had worked satisfactorily for more than one year‑‑‑Civil servants, in circumstances, had been discriminated and had been removed from service with some ulterior motive‑‑‑Order terminating services of the civil servants was set aside with the direction to take them back on duty from the date they were terminated.
2001 PLC (C.S.) 212; PLD 2001 SC 355; 1999 SCMR 664; 1999 SCMR 1892; 1998 SCMR 1153; 2000. PLC (S.C.) 1; 1997 SCMR 1552; 1996 PLC 90; 2000 PLC (C.S.) 121 and 1993 SCMR 1287 ref.
Nawaz Sheikh for Appellant (in Appeals Nos.431‑K of 1997, 118 to 120 and 122 to 131(K)(CE) of 2000).
Gohar Iqbal for Appellant (in Appeal No. 121(K)(CE) of 2000).
Raja Faizul Hasan Director Law on behalf of EOBI.
Lateef Ansari for Respondent No. 2 (in Appeal No.43 I (K) of 1997.
JUDGMENT
AKBAR M. MEMON, (MEMBER). ‑‑‑Appellants in Appeals Nos. 118 to 131 (K) (CE) of 2000 have challenged their termination order dated 17‑11‑1999, which reads as under:‑‑
"OFFICE ORDER
Consequent upon abatement dismissal of Writ Petition Nos. 612, 625, 626, 627, 628, 629, 630, 631, 632, 633, 636, 812 and 11.30 submitted by the following Executive Officer (ad hoc) by Hon'ble High Court of Sindh, Karachi vide order dated 16‑11‑1999, their services stand terminated as already communicated through order darted 8‑3‑1997.
S.N
Name of Officer
P.No
. Place of Posting
1.
Ali Murad Sipio
918116
Reconciliation Wing HQ Karachi
2.
Muhammad Anwar Baloch
918456
Reconciliation Wing HQ Karachi
3.
S. Anwar H. Shah
919040
Reconciliation Wing HQ Karachi
4.
Ghulam Haider
919357
Reconciliation Wing HQ Karachi
5.
S. Hasan Asim Rizvi
919722
Reconciliation Wing HQ Karachi
6.
Mushtaq Ali Mallah
910361
Zonal Office, Hyderabad
7.
Muhammad Amir
919335
Reconciliation Wing HQ Karachi
8
Gohar Khan
919346
Reconciliation Wing HQ Karachi
9.
Zubair Ahmed Memon
919380
Reconciliation Wing HQ Karachi
10.
Madad Ali Suhrawani
919813
Reconciliation Wing HQ Karachi
11.
Gaji Khan
919816
Reconciliation Wing HQ Karachi
12.
Agha Abdul Waheed
919960
Reconciliation Wing HQ Karachi
13.
Muzaffar H. Morio
919971
Reconciliation Wing HQ Karachi
14.
Muhammad Dero
921302
Reconciliation Wing H.Q. Karachi
15.
M. Ibrahim Sasoli
919697
Regional Office, Quetta
They are advised to deposit return their medical books. Office identity cards etc. and get their accounts settled by the F&A Division. Head Office, Karchi."
Similarly appellant in Appeal No.431(K) of 1997 has challenged the termination order dated 8‑3‑1997, which reads as under:‑‑
Subject: TERMINATION.
In terms of clause (2) of your letter of appointment, your services are terminated and you stand relieved with immediate effect i.e. with effect from 8th March, 1997. However, you will be paid one week's wages in lieu of notice.
You are advised to contact F&A Division for settlement of your dues if any.
Since facts of Appeals Nos.118 to 131 (K) (CE) of 2000 are altogether identical, we will take up Appeal No‑124(K) (CE) of 2000 as the leading appeal and we propose to decide all these appeals by this single judgment: However, facts of‑Appeal No.431(K) of 1997 are being given separately as the same are little bit different.
Mr. M. Nawaz Sheikh, learned counsel for the appellants in all ' these appeals excepting Appeal No. 121(K)(CE) of 2000 has argued that the appellants were appointed on 16‑11‑1995 on ad hoc basis but the rules of the respondent‑Institution make no mention of the appointment on ad hoc basis. At the same time, he has‑ contended that the respondent had constituted a Committee consisting of three members, who were required to examine the cases of officials, recruited on 5‑7‑1994 and onwards to regularize their cases and the Committee in its meeting dated 20‑9‑1995 had recommended that the officials, who were appointed on ad hoc basis from 5‑7‑1994 onwards be regularized after completion of one year's probation provided that they had earned a satisfactory report from their superiors. It was also recommended that if the cases are going to be regularized after completion of one year's service, it was recommended that their probation may be terminated, from the date of their regularization. The appellant then served the respondents for a period of more than a year and had earned good reports as is evident from the performance report (Annexure 1 & J) where after some of officers, who were appointed during the period from 1988 and 1990 were recommended for regularization on 26‑10‑1995 and at the same time as many as 22 officers of different categories including one Assistant and a driver, who were working on deputation, were permanently absorbed on 26‑6‑1997 as per decision of the Board in its 45th meeting held at Islamabad on 31‑5‑1996, whereas the regular employees like the appellants were singled out. He has contended that, no doubt, the appellants had worked satisfactorily but all of sudden they were terminated vide order dated 8‑3‑1997 against which the appellants filed Constitutional Petition No.612 of 1997 where stay was granted but on account of insertion of section 2‑A the said Constitutional petition, filed by these appellants, was abated on 16‑11‑1997 whereafter the appellants were terminated under the second termination order. He has contended that the appellants then filed appeal before this Tribunal bearing Appeals Nos. 1305 to 1318(K) of 1999 but the same were dismissed in limine on 8‑3‑2000, against which the appellants approached Hon'ble Supreme Court. He has contended that immediately on the date when they, were terminated by the respondents on 17‑11‑1999, they had filed departmental appeal, which fact was not considered whereafter the Hon'ble Supreme Court passed an order whereafter they filed appeals before this Tribunal on 4‑4‑2000. He has contended that the respondents could not have terminated the present appellants as they were appointed on clear vacancies and since there was no allegation of misconduct, they could not have been removed without holding proper inquiry. At the same time, he has contended that as many as 17 posts, are still lying vacant and since such advertisement had come in the papers for filling the said vacancies, it can be understood that in spite of clear vacancies, the present appellants have been removed with some ulterior motive and when the condition of ad hoc appointment was inserted, in their appointment letters in violation of their rules, the same is contrary to law, therefore, it cannot be sustained and the very termination order passed by the respondents are liable to be set aside.
As regard the case of appellant, Fida Hussain, in Appeal No.431(K) of 1997, he has contended that the case of the present appellant is somewhat on different lines as his very appointment order shows that he was appointed on the remarks of the State Minister on his application, whereafter he was required to undergo training and also participated in orientation training in different sections. Subsequently the appellant apprehending termination had filed Constitutional Petition No.D‑18 of 1997 in the Hon'ble High Court, Larkana Circuit on 10‑3‑1997, which was fixed for 11‑3‑1997 and notices were issued for hearing on 14‑3‑1997, where the appellant came to know, during the pendency of the petition, that his service has been terminated on 8‑3‑1997. The petition was still pending when section 2‑A was inserted in the Service Tribunals Act, as such, Constitutional Petition No.D‑18 of 1997 was abated vide order dated 21‑8‑1997. However, after abatement of the appeal, he came to the respondent to collect the termination order on 6‑8‑1997, whereafter he filed departmental appeal on 4‑9‑1997. At the same time, he tiled service appeal before this Tribunal on 5‑9‑1997, which was dismissed in limine on 2‑3‑1998, whereafter the appellant approached the Hon'ble Supreme Court and vide Constitutional Petition No.388‑K of 1998, the appeal was remanded to this Tribunal for disposal according to law. Mr. Sheikh has further contended that the respondents after the appointment of the present appellant had appointed 51 officials on the basis of advertisement whereafter some officials, who were on deputation were also permanently absorbed but the present appellant was not regularized in spite of recommendation of the Committee, constituted by the respondents, and in case there was any delay in filing the present appeal that was on account of contempt proceedings, which were pending before Hon'ble High Court, as such, the delay be condoned and the appeal be allowed and the order of the termination be set aside as neither there is any allegation of misconduct nor it is said that the appellant was lacking qualification.
Mr. Gohar Iqbal, learned counsel for the appellant in Appeal No.121(K)(CE) of 2000, has adopted the same arguments as that of Mr. Sheikh.
Mr. Raja Faizul Hasan, Director Law has raised legal objections. He has contended that the appeals are time‑barred as termination orders were issued on 8‑3‑1997 and stay was granted on 25‑4‑1997. He has contended that in spite of insertion of section 2‑A, the appellant continued to peruse the remedy before Hon'ble High Court and when the objection was raised by the respondents, the appellants filed another Constitutional Petition bearing No.1493 of 1998 but both the Constitutional petitions were dismissed on 16‑11‑1999, whereafter the termination order originally passed on 8‑3‑1997 was restored and it was not a second termination. He has contended that departmental appeal was filed and without having waited for the expiry of mandatory waiting period of 90 days, they filed appeals before this Tribunal, which were dismissed in limine. However, the appellant approached Hon'ble Supreme Court where their appeals were disposed of vide order dated 23‑11‑2000 and that appellants were required to pursue their subsequent appeals pending before this Tribunal. Coming to the merit of the appeals, he has contended that the appointments were made on temporary basis, as such, the recommendation of the Committee was not considered. He has further contended that the termination, is without any stigma, as such, the appellants have no case for reinstatement and the order of termination is liable to be 'sustained, because the appellants got the very order of appointment on the basis of recommendations of political personnel. In support of his contentions, he has placed reliance on 2001 PLC (C.S.) 212, PLD 2001 SC 355, 1999 SCMR 664, 1999 SCMR 1892, 1998 SCMR 1153, 2000 PLC (C.S.) 1. 1997 SCMR 1552, 1996 PLC 90, 2000 PLC (C.S.) 121 and 1993 SCMR 1287, and has also filed copy of judgment, passed by this Tribunal, in Appeal Nos. 1305 to 1318(K) of 1999 announced on 8‑3‑2000.
Mr. Lateef Ansari, Advocate, appearing for respondent No.2, in Appeal No.431‑K of 1997, has argued that the appeal from the face of it appears to be premature if it is said that the appellant came to know about his termination in the Court and if it is not so then this appeal is time‑barred. He has contended that no‑application for condonation of delay has been filed. While arguing further, he has referred to paras. 9,10 and 12 of the Memo. of Appeal, and has contended that if on the date of hearing viz. 14‑3‑1997, the appellant came to know about the alleged termination order then his appeal is time‑barred and if the assertion of the appellant is taken into consideration that he had himself gone to the respondents' office where he collected the order on 6‑8‑1997 then the appeal is premature. He has contended that the very 'appointment order shows that he was a political recortrmended and that he was appointed on purely ad hoc basis and in case he was eager to get himself regularized then he should have followed the legal course by removing appropriate application but this was not done and since the very appeal is not maintainable, the same is liable to be dismissed. In support of his contentions, he has placed reliance on 1998 SCMR 7.
After hearing the arguments of learned counsel appearing for the parties, we have gone through the entire appeal files and so also the authorities cited before us.
Perusal of the appeals files reveal that the appellant's cases has a chequered history. The appellants were appointed on temporary/ad hoc basis but the word "ad hoc" doesn't find place in the rules of the respondent? Institution. However, appointments could have been made on temporary basis, but in that case of appointment, the persons so appointed were to be placed on probation for a period of six months and appointing authority had the discretion to extend the period of probation for three months but in the case of the appellants they went on working for more than one year and four months which is even beyond the probation period. Papers further show that on their appointment, some of them had undergone certain training and orientation courses whereafter their performance report was obtained but they were regularized in spite of the recommendations of the committee, constituted for the purpose. In the meantime, those who were working on deputation were also regularized but the case of the present appellants remained unattended. Subsequently they were terminated on 8‑3‑1997 against which C.P. was tiled and stay was granted and finally when the Constitutional petition was dismissed the original termination order was? restored on 17-11-1999.
Perusal of the termination letter, dated 8‑3‑1997 makes no mention that on what ground the present appellants were terminated though they had worked for more than a year and nowhere it is alleged that they were guilty of misconduct or that they were lacking qualifications. Perusal of the record further reveals that some of the appellants were appointed on the basis of written tests, interview and some of them had come from different departments and some of the appellants had come from the Ministry but the comments filed by the respondents in Appeal No. 122‑K(CE) of 2000, show that the respondents while denying the assertions of the appellant raised in paras.3 and 6 of Memo. of Appeal have taken a stand in the case of the appellant, (Ali Murad Sipio) that he was recommended at the behest of M.N.A. on political grounds, but they have lost the sight of the fact that the case of the said appellant was recommended by the Cabinet Secretariat on 31‑1‑1994 as on account of abolition of National Education and Training Commission, the said appellant had become surplus due to which his case was referred to the respondent Institution. The said letter is reproduced hereunder.
"OFFICER MEMORANDUM
Subject: ABSORPTION OF SURPLUS STAFF
The services of Mr. Ali Murad Sipio, Field Officer (BPS‑17) National Education and Training Commission, Ministry of Education, Government of Pakistan were terminated w.e.f 29‑11‑1990. The National Education and Training Commission has been abolished and as such Mr. Ali Murad Sipio has become surplus.
The biodata of Mr. Ali Murad Sipio is forwarded herewith. He may be considered against BPS‑17/BPS‑16 any vacant post in his own pay and scale for absorption in the Employees Old Age Benefits for favourable consideration."
Similarly about the appellant, Fida Hussain, it is said that his very appointment letter shows that the application of the said incumbent was having the remarks of Minister of State for Labour and Manpower Department but the respondent have not been able to produce such recommendation, which could show that the Minister had, in fact, directed the respondent‑Institution to appoint the said incumbent or that the application was simply carrying an endorsement.
As far as the question that in case the appellant had come to know about the termination order on 14‑3‑1997, then his appeal is time barred and if he had tiled his appeal after the passing of the abatement order then his appeal is premature, merits no consideration, as the appellant apprehending his termination had approached Hon'ble High Court where his petition was pending and it was for the first time that he was informed by the counsel for the respondents that his service was terminated by the respondent on 8‑3‑1997. The appellant continued to pursue his remedy and had also filed contempt application but when the matter was finally abated on 21‑8‑1997 he on coming to know about the insertion of section 2‑A, in the Service Tribunals Act, 1973, immediately rushed to the respondents‑Institution and obtained the copy of the termination order on 6‑8‑1997 and when the matter was bated on 21‑8‑1997, he filed departmental appeal on 4‑9‑1997. At the same time, he filed service appeal on 5‑9‑1997 but unfortunately the same was dismissed in limine on 2‑3‑1998, whereafter he approached the Hon'ble. Supreme Court by filing C.P. N0.388‑K of 1998, wherefrom he got the appeal remanded to this Tribunal. In such a way, neither the appeal is barred by limitation nor the same has prematurely been filed. In case no application for condonation of delay has been filed, then too, we condone the delay, if at all comes within the purview of limitation keeping in view the chequered history of the appeal.'
Now coming to the merits of the appeals, there is no denial of the facts that those who were on deputation have been permanently absorbed by the respondents‑Institution but in the case of the present appellant, it is being k said that they were appointed on temporary/ad hoc basis, as such, they are not within their rights to have raised objection on their termination. Paper reveal that they had undergone numerous trainings and refresher courses and it is not the case of the respondents that they were guilty of any misconduct or that they were lacking required qualifications In case those who were on deputation were permanently absorbed then in our view of the present appellants have been discriminated as they had successfully completed the period of their probation and most of them were either selected after written test and interviews and some of them had come through proper channel as well as through Ministry, as such, they could not have been removed without any just cause. If it is said that the removal was not carrying any stigma, the respondents have lost the sight of the fact that the appellants were appointed in the year 1995 and had worked for over one year and four months whereafter they have been pursuing their legal remedy till today which shows that they have spent nearly four years without any fault on their part and in case they are rendered jobless and if they approach some other department it will not be possible for them to get any job as most of them have become over age by now
In such a situation, we set aside the impugned orders, dated 8‑3‑1997 and also 17‑11‑1999 arid direct that the appellants be taken back on duty from the date from which they were terminated. However, in the circumstances of the case there will be no order as to back benefits for the period, which they remained out of job which be treated as leave extraordinary.
In view of the above discussion, all appeals are accepted with no order as to costs. Parties concerned be informed accordingly through registered host.
H.B.T./124/FST?????????????????????????????????????????????????????????????????????? Appeal accepted.