' MUHAMMAD IQBAL KHAN, MEMBER.---The appeal is against the impugned order dated 24-1-1989, whereby the services of the appellant were terminated as no longer required.
2. The brief facts of the case are that the appellant, Syed Muhammad Ali Gohar Zaidi was appointed as General Manager (Project and Engg.) vide letter dated 29-6-1983. The appellant was transferred to Lahore in his own grade and pay scale vide order dated 25-4-1985. He worked in Lahore until his termination from service. His services were terminated under notice-cum- termination order dated 24-1-1989 reportedly as per terms and conditions of his appointment. He submitted his departmental appeal to the respondent-Department on 7-3-1989. Failing to get any response from his Department, he sought relief through Courts. Finally, failing to get any relief up to the Lahore High Court, he went to the Supreme Court against the judgment of Lahore High Court.
The Hon'ble Supreme Court disposed of the matter vide order dated 12-8-1999 on the ground that following the insertion of section 2-A in the Service Tribunals Act, 1973, the competent forum to hear the appeal was the Service Tribunal. The Hon'ble Supreme Court on the request of the appellant for condonation of delay observed that it fell within the jurisdiction of the Service Tribunal and further observed that the Court of competent jurisdiction may examine the matter sympathetically. The appellant filed his service appeal in the Tribunal on 16-11-1999.
3. The learned counsel for the appellant pleaded that the General Manager (Admn.) passed the impugned order who was not the lawful authority to terminate the services of the appellant as under the H.B.F.C. Rules, only the Appointing Authority who was Managing Director in his case was only competent to .Terminate his services and that too with the approval of the H.B.F.C. Board of Directors. The counsel also submitted that under the H.B.F.C. Rules, further delegation of powers of appointment, termination of service etc, is not permissible. The counsel further averred that the appellant was the senior most officer/General Manager and was placed at Serial No,1 of the seniority list, whereas his junior was retained in service in violation of the principle of Last in First Go/LIFO. The learned counsel further requested for condonation of delay in the filing of the appeal under section 5 of the Limitation Act, 1908 on the ground that the appellant has been pursuing his case faithfully and diligently in various forums under the genuine belief that the Courts have requisite jurisdiction and also on the ground that orders passed having no sanction of law, no limitation runs against such orders. Finally, the counsel argued that the Hon'ble Supreme Court while disposing of the C.P.L.A. Of the appellant also observed that the Court of competent jurisdiction may examine the matter of condonation of delay sympathetically.
4. The learned counsel for the respondents' main thrust was that the appeal was time-barred as after the insertion of section 2A in Service Tribunals Act, 1973 on 10-6-1997, the appeal should have been filed latest by 9-9-1997 and, therefore, it is grossly time-barred. The counsel further argued that the appellant's civil petition for leave to appeal was dismissed on 12-8-1999 and the appellant filed present appeal on 16-11-1999, without explaining delay of each day as required under section 5 of the Limitation Act and the appellant's.Ignorance of law, the counsel argued cannot be cited as an excuse. The counsel further informed that two posts including the post of the appellant were abolished vide Board of Directors order dated 24th December, 1987 and that the appellant was also given three month's notice before terminating his service vide order dated 24-1-1989 and as such the respondent-Department adopted a very humane course before dispensing with his services.
The counsel also argued that with the insertion of section 2A in the Service Tribunals Act, he was treated as civil servant for limited purposes only for adjudication of his appeal by the Tribunal and for other matters he was to be governed by H.B.F.C. Rules and terms and conditions of his service.
The counsel further averred that the appellant was governed under master and servant relationship and dispensing with his services amounted to termination simplieiter, not involving any disciplinary proceedings. The appellant was terminated from service as the project against which he was employed was wound up. Finally, the learned counsel argued that the Board of Directors had taken the decision to abolish the posts vide order taken on 24-12-1987 and the General Manager only communicated the decision of the Board.
5. Arguments heard record perused.
6. It will be appropriate to first refer to his offer of appointment dated 29-6-1983 which is reproduced below:-- "OFFER OF APPONTMENT ' Dear Sir, ' With reference to your application dated 18-12-1982 and subsequent interview by the Selection Committee, you are offered the post of General Manager (Project and Engineering) in House Building Finance Corporation, Karachi subject to the following conditions:--
(1) That you will be authorized to draw basic pay of Rs,2000 in the pay scale of 2000-100-3100 plus other fringe benefits, as admissible under the rules of the Corporation from time to time.
(2) That you will be on a probation of six months during which your services can be terminated on one month's notice without assigning any reason.
(3) That your appointment will be subject to the H.B.F.C. Service Regulations;
(4) That you will produce Medical Fitness Certificate from the authorized Medical Attendant of the Corporation.
(5) That you will have to serve anywhere in Pakistan.
(6) That you will produce attested copies of certificates and testimonials at the time of joining the post.
(7) That you will produce a photo copy of Domicile Certificate at the time of joining the post. If the above offer is acceptable to you, you may kindly intimate your acceptance within 7 days of the receipt of this letter failing which this offer will be treated as cancelled.".
7. It is clear from the above letter that the appellant was appointed as per prescribed procedure.
He was also placed on probation for a period of six months. It can be safely inferred from this that on completion of the probationary period, he was eligible for confirmation. Let us now peruse the appellant's termination order dated 24-1-1989 which is reproduced below:- "MEMORANDUM ' As the services of Messrs S.M.A. Zaidi and Hafiz Mashkoorul Hasan, General Manager (Engg.) Z.O., Lahore and H.O. Karachi respectively, are not required by the Corporation, they may complete the jobs assigned to them, within three months of the date of issue of this Memorandum, and arrange to hand over all the record and other articles of stationery and office equipments in their possession to the General Manager, ZO, Lahore and Manager (Engg.), H.0., Karachi, respectively.
Besides, the above, they may also treat this Memorandum as three months' notice, before terminating, their services, as required under the rules and as per condition of their terms and conditions of appointment."
' The above letter inter alia, envisages as under:--
(i) Although it does not specifically mention Regulation 11 of the H.B.F.C. Service Regulations, 1959, but there is hardly any doubt that in dispensing with the appellant's services, the provisions of the rule referred to above have been followed which read as under:-- "11. (i) The Corporation may dispense with the services of a permanent employee by giving three months previous notice in writing without assigning any reason or, in lieu thereof, a sum equivalent of his substantive pay for three months."
(ii) The respondent-Department has also mentioned in the termination order that termination is in accordance with its terms and conditions of the appointment.
' The terms and conditions of the appellant as contained in the offer of appointment dated 29-6- 1983 do not envisage any possibility of the termination of his service except during the probationary period. Thus reference to his terms and conditions of appointment is irrelevant. Under Regulation 11 simplicities, the respondents could terminate the service of the appellant provided it acted in good faith without any discrimination in the interest of the Corporation and net on extraneous consideration. In the present case the termination was ordered not in the interest of the Corporation as it involved .Discrimination and violated the principle of natural justice as succeeding paras would show.
8. The appellant has placed on record the Provisional Seniority List of officers as on 1-1-1989. It shows the appellant at Serial No,1 of the cadre of General Manager. We have been informed by the learned counsel for the appellant that officer at Serial No,3 of the Seniority List Mr. Bashir Mehmood who is only Martic has been retained whereas the appellant who is B.E. (Civil) has been terminated.
This list has not been controverted by the respondent-Department. Their only plea being that the post of the appellant, which was in the Engineering Division alongwith the other two posts i,e, G.Ms. Project Divisions and Training have been abolished. If this was so, what was the logic of issuing a combined seniority list, which normally envisages that further promotions would be made in accordance with the seniority list. This inverse logic as advanced by the respondents is beyond comprehension. The pick and choose policy is in violation of the principle of LIFO as laid down in section 11(2) of Civil Servants Act, 1973 which has established the principle of LIFO.
9. The respondent-Department has placed on record extracts of the minutes of the Board of Directors Meeting held on 24th December, 1987. Item No,3 (Minutes 1047) of the Agenda of the BOD Meeting is reproduced below:-- "6. Item No,3. Report of the sub-Committee on manpower and transport requirements of the H.B.F.C.
During 1987-88.
' The Board considered the report of the "Sub-Committee on manpower and transport requirement of the H.B.F.C. During 1987-88", headed by Mr. Fayyaz Ahmad, Director, Banking Control Department, State Bank of Pakistan, Karachi. The Board appreciated the strenuous work undertaken by the Committee and its Conveners. Mr. Fayyaz Ahmed was required to give, wherever necessary, the reasons for the creation/abolition of the posts for the purpose of record, and this should form part of the report as an annexure. The Board took following decisions:--
(a) xxxxxxxxxxxxxxxx.x
(b) X X X X X 7r )(XXX X X X XX X X
(c) General Managers.
' The Board accepted the recommendations of the sub-Committee on manpower and transport requirements of the H.B.F.C. During 1987-89" on the creation and the abolition of the posts of General Managers so that there is no net increase in the posts of General Managers. It was resolved that the following three posts of General Managers would be abolished:--
(1) General Manager, Project Division 1 Post.
(2) General Manager, Engineering Division 1 Post.
(3) General Manager, Training 1 Post.
' The services of the incumbents of these posts will accordingly be dispensed with according to rules. It was resolved to create following three posts of General Managers:-
(1) General Manager, Client Service Division. At Head Office Kyc.
(2) General Manager, Operations Division, At Head Office Kyc.
(3) General Manager, Audit and Inspection Division, At Head Office Kyc.
' It will be observed that the Board no doubt recommended abolition of three posts of General Managers during the financial year 1987-88, including the post of the appellant but the decision was to be implemented during the financial year 1987-88. The appellant was removed from service on 24-1-1989 effective from 24-3-1989 (By inclusion of 3 month's notice period under Regulation 11 of H.B.F.C. Service Regulations, 1957). The date of termination of the appellant falls in the financial year 1988-89 and not in 1987-88 as stipulated in the minutes of the Board Meeting. The respondents did not take any decision for one year and one month's up to 24-1-1989. The appellant was not informed about the decision so that he could make alternative arrangements. Even if presuming that the appellant knew about the decision, the dawn of the new financial year abated all his fear of the possible retrenchment. The Department, as is clear from the minutes, that they created three additional posts of General Managers in the Head Office, Karachi. The appellant who was recruited in Karachi could also be retained against one of the these posts. This was not done for reasons best known to the department. We, therefore, feel that the termination or the appointment on the basis of BOD decision taken on 24th December, 1987 for manpower requirements for the year 1987-88 was not legally justified in 1988-89: To top it all the respondents failed to get the decision revalidated by the BOD during the year 1988-89 and the General Manager
(A) who was not competent to issue orders of termination of the General Mangers went ahead and terminated the appellant vide orders dated 24-1-1989. The apex Court in an identical case in its concluding para 13 of the judgment reported in 1999 SCM R 311 observed as under:- "Before us also the appellant failed to produce any order of the Managing Director whereby the services of the respondent were ordered to be terminated. The learned counsel for the appellants has solely relied upon para 6 of the comments wherein it was asserted that the order was passed by the Managing Director. However, factually no such order has been produced before us inspite of the above finding of the High Court. The respondent had also been taken in service after the judgment of the High Court in 1994 and some other employees have also been re-inducted into service on the basis of the above judgment of the High Court. We are, therefore, not inclined to interfere with the judgment under appeal on the above ground found favor with the High Court."
' We do not share the view of the learned counsel for the respondents that the General Manager only communicated the decision of the BOD as the decision had lost its validity being taken in the financial year 1987-88 and without revalidation of the decision by the BOD, the General Manager exceeded his powers. The respondents failed to produce a fresh decision ordering the termination of the appellant in the year 1988-89. In our view, therefore, the appellant's case falls in the same category as discussed and decided by the Hon'ble apex Court in the judgment referred to above.
Regarding the arguments of the respondents that the project against which the appellant was employed was terminated, the offer of appointment makes it very clear that he was not employed against any specific project. The designation of his post was G.M (Project and Engineering). Hence the claim of the learned counsel for the respondent that the project against which the appellant was employed was terminated is not substantiated by the offer of appointment. He was appointed as per Regulations of the H.B.F.C. Regulations, 1957.
10. Finally regarding the appeal being barred by time as vehemently emphasized by the learned counsel for the respondent-Department, we feel that with the insertion of section 2A in the Service Tribunals Act, 1973 with effect from 10-6-1997, the competent forum to adjudicate such cases was the Service Tribunal. It is true that the appellant knocked at the doors of the wrong forums but even those forums failed to abate his case and dismissed it Without taking into the account the fact that they no longer were competent to hear his case ultimately the apex Court observed that the appellant's case fell within the competence of the Service Tribunal. The order passed by Hon'ble Supreme Court in C.P.L.A. Dated 12-8-1999 is reproduced below:-- "ORDER ' During the course of arguments which were being addressed by learned counsel for petitioner, as required from Rana Muhammad Arif, learned Additional Advocate-General present in the Court, about present status of employees of Corporation. He has drawn our attention to amendment introduced in Service Tribunals Act. 1973 whereby section 2-A has been added. Learned counsel for petitioner when confronted with the legal aspect, he frankly conceded that this point was not agitated prior to this by either side, therefore, according to him, remedy would lie after the above amendment before Service Tribunal.
2. In view of above, petition is not pressed. However, learned counsel stressed for condonation of period which has been spent in pursuing present petition. Needless to observe that it is always the competence and jurisdiction of forum seized of the matter to examine question with regard to condonation of period whenever such request is made. Therefore, it will not be possible for us to make any specific observation in that behalf. However, the Court of competent forum may examine the matter sympathetically keeping in view the requirements of law.
3. Petition is dismissed as not pressed."
11. The appellant received the copy of the order on 13-9-1999 and filed the service appeal on 16-11- 1999. It is has been consistently held by the apex Court in a number of judgments that after the insertion of section 2A in the Service Tribunals Act, 1973, the situation remained fluid and uncertain for quite some time and that even competent lawyers could not properly guide their clients as to the proper forum. Same was also the position in the present case. Moreover, the appellant should not suffer on account of act of omission on the part of the Courts as held in 2002 SCM R 134 and 1998 SCM R 2296. In our view, therefore section 14 of the Limitation Act, 1908 is attracted in this case.
12. After having taken into consideration all the facts of the case, we feel that the termination of the appellant from service was unjustified legally and also based on distortion of facts. The decision to terminate him was not taken in a transparent, fair and equitable manner and smacked of partiality and mala fide on the part of the respondents.
' Accordingly, we accept the appeal, set aside the appellant's termination order dated 24-1-1989 and reinstate the appellant with effect from the date of his termination from service. The intervening period between his termination and reinstatement into service shall be treated as leave of kind due.