' SYED DEEDAR HUSSAIN SHAH, J.--- Petitioners seek leave to appeal against the judgment of the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal),dated 12-7-2001, passed in Appeal No,467(K) of 1998.
2. Briefly stated the facts of the case are that the respondent, who applied for a post with the appellant/Corporation, was called for test/interview on 5-11-1995. Subsequently, he was appointed as Scheduling Officer in PG-V vide letter, dated 24-4-1996. Respondent joined the Corporation and after serving for more than six months he was confirmed vide letter dated 22-10-1996, and finally he was terminated from service being no more required w,e,f, 12-12-1996. He approached the High Court by filing Constitutional Petition No,2399, which was allowed on 13-5-1997, an interim order was passed whereby he was allowed to join the appellants on 13-1-1997. Then he was kept in surplus pool vide letter, dated 15-4-1997 which continued on 7-11-1997 when he was given notice for removal from service and personal hearing. The said letter was once again repeated on 12-12-1997, due to the transfer of Director Flight Services, where after the respondent filed written reply. On 15-1- 1998 he was terminated from service by the petitioners/ Corporation. Respondent filed departmental appeal on 21-1-1998, which was turned down on 20-4-1998.
3. Feeling aggrieved, respondent filed appeal and this was allowed by the learned Tribunal reinstating him in the same Pay Group in which he was initially appointed. Hence, this petition.
4. Mr. Javed Altaf, learned Advocate Supreme Court for the petitioners, inter alia, contended that the impugned judgment of the Tribunal is not in accordance with law, which has resulted in miscarriage of justice, therefore, leave to appeal may be granted.
5. We have considered the contentions of learned counsel for the petitioners and minutely perused the material available on the file. In our considered opinion, the contentions raised by the learned counsel are not tenable. It reveals from the record that the respondent was a qualified person and was appointed by a Selection Board which consisted of four persons. Such record was produced before the Tribunal and inasmuch as A he was also confirmed vide letter, dated 22-10-1996. The learned Tribunal has elaborately dealt with each and every aspect of the case, and it would be advantageous to reproduce here the relevant paragraphs of the impugned judgment, which read as under:- "6. There is no denial of the fact that the respondents have repeatedly made a mention that the appellant was the recommendee of the then Prime Minister's Secretariat but no document whatsoever has been produced by them which could show that even the application of the appellant was forwarded by the Prime Minister's Secretariat. In such a situation, both the cases cited by the learned counsel for the respondent, in our view, are distinguishable, as in case of Khalid Hussain Bhutto, he was less qualified and in case of Raja Aamir Abbas Hassan, recommendatory letter was produced, which has been incorporated in the judgment. At the same time, the respondents cannot deny that the very appointment was made by the Special Selection Board, which consisted of 4 members, whose names have been given in Minute-01, dated 122-1996, where relaxation, which was required to be sought to dispense with the condition of advertisement as per recruitment policy, and excepting this relaxation no other objection seems to have been raised by the Selection Board. In case vacancy position was not known, then somebody should have come forward and have been bold enough to have raised the issue that there was no vacancy, but this was not done and knowing this position the present appellant was confirmed vide letter, dated 22-10-1996. With all this, not a single instance has been quoted where a single appointment is said to have been made on the basis of advertisement or in open competition. We have been dealing with PIA's cases and in number of cases similar situation had arisen and the respondents viz. PIA have not been able to give exact picture on the subject.
Similar situation had arisen in the case of Dr. Mazhar Naeem where a Bench of this Tribunal had elaborately discussed the point of unsolicited applications and appointment without advertisement. Subsequently appeal ended in reinstatement of Dr. Mazhar Naeem. The respondent then approached Hon'ble Supreme Court in C.P. No,162/98 where the judgment of this Tribunal was upheld. It will be advantageous to reproduce here paras. 2 to 6 as well as para.7 of the judgment, which read:-
2. The relevant facts are that Dr. Mazhar Naeem joined the Pakistan International Airlines Corporation as a Medical Officer and confirmed in Pay Group-IV on 1-2-1996. Without any Show- cause notice, inquiry or charge-sheet, his services were terminated on 20-3-1997. Challenging his termination order he approached the Federal Service Tribunal. By judgment, dated 25-7-1998 his appeal was accepted and his termination order was set aside being "void ab initio" for having been issued in flagrant violation of the principles of natural justice.
3. Feeling aggrieved, the P.1.A.C. Has filed this petition.
' It is, inter alia, contended that the learned Tribunal had not properly dealt with the case and mechanically passed a generalized order, that the terms of service of the respondent were governed by his letter of appointment and the Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985 that there existed relationship of Master and Servant between the parties, that since it was a case of simple termination, the principles of natural justice were not applicable; furthermore, as the respondent had secured appointment by using extraneous pressure in violation of the Regulations, he had no vested right to remain in service.
4. It was argued before the Federal Service Tribunal on behalf of Dr. Mazhar Naeem respondent that a Special Board was constituted for his appointment and he was not to be blamed for the non- publication of advertisement by the department/P.I.A.C., as it was not his duty to see to it. He was duly confirmed after initial appointment and became a regular employee, who could not be thrown out service without any show-cause notice, inquiry or charge-sheet.
5. The petitioner/P.I.A.C. Is estopped by its conduct to urge that the appointment of the respondent was against the rules and due to extraneous considerations, and by maneuvering the said appointment he blocked the career advancement of more experienced employees already working in the P.I.A.C. If they had any grievance in this behalf they would have challenged the appointment of the respondent soon after his appointment, but admittedly no one did so, nor did the P.I.A.C. Have any complaint against the work and conduct of the respondent. According to the petitioner, this exercise had been taken on the directive dated 4-3-1997 of the Federal Government, requiring review of all cases of irregular and out of turn appointments in the P.I.A.C. The respondent's appointment was made by the Special Selection Board and he possessed the requisite educational qualifications. The P.I.A.C. Had no cause of grievance against him and his services were terminated on the basis of the circular issued by the Prime Minister Secretariat dated 4-3-1997 directing that all irregular appointments during the P.P.P. Government be terminated.
6. It is a well-settled proposition of law that maxim audi alteram partem is applicable to all judicial and non-judicial proceedings and has to be read into every statute, even if the right of hearing is not expressly provided therein.....
7. The petitioner/P.I.A.C. After considering the respondent suitable offering him a job and later confirming him in service is not legally permitted to terminate his service at a subsequent stage in the absence of any misconduct on his part and that too without providing an opportunity of hearing to him in relation to the show-cause notice/charge-sheet containing allegations of misconduct during his service period. Similarly we would like to reproduce a portion of the latest case of Nasir Jamal Malik, where the Hon'ble Supreme Court in Civil Petition Nos.330 to 337 and 436 of 1999 has held: "We have considered the arguments so advanced by both the sides in this behalf. It may be noted that in the judicial history of our country as well as in those countries where identical/ corresponding system of administration of justice is in-vogue the principle enshrined in the maxim audi alteram partem has been made applicable expressly or impliedly in every instrument governing the proceedings which may be statutory or otherwise and if its absence is conspicuous by not making it a part of the instrument governing the proceedings. Though the principle of audi alteram partem is not universally accepted principle but emphasis on its application has always been made on those proceedings where adverse action is being contemplated to be taken against the person/persons who have at least a right to defend such action or during course of time they have acquired a right to negate allegations on basis of which an action adversely affecting their interest is being taken. To strengthen the arguments reference may be made to Chief Commissioner Karachi v. Mrs. Dina Soharb Katrak PLD 1959 SC (Pak.) 45, (ii) Messrs Faridsons Limited Karachi and another v. Government of Pakistan and another PLD 1961 SC 537, (iii) Abdur Rehman v. Collector and Deputy Commissioner Bahawalnagar and others PLD 1964 SC 461, (iv)
Saiyyid Abul Ala Maudoodi and others v. Government of West Pakistan, etc. PLD 1964 SC 673, (v)
University of Dacca v. Zakir Ahmed PLD 1965 SC 90, (vi) Muhammad Hayat v. Province of West Pakistan PLD 1964 SC 321, (vii) Messrs East-end Exports, Karachi v. The Chief Controller of Imports and Exports, Rawalpindi and another PLD 1965 SC 605, (viii) Pakistan and others v. Public At Large and others PLD 1987 SC 304, (ix) Khalikuz Zaman v. Supreme Appellate Court, Lahore and 4 others PLD 1994 SC 885, (x) Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158, Naushero Feroze and others 1994 SCM R 1299 (xi) Faqir Ullah v. Khalil-uzZaman and others 1999 SCM R 2203.
' It, may be noted that in the case of University of Dacca (ibid) question of consideration before this Court was as to whether the principle of Natural Justice (audi alteram partem) in the cases of expulsion of student, by University Authorities, for alleged indiscipline, misconduct and rowdyism is applicable. In this context it was held that in all proceedings by whomsoever held, whether judicial or administrative, the principle of natural justice have to be observed if the proceedings might result in consequences affecting "the person or property or other right of the parties concerned".
This rule applies even though there may be no positive words in the statute or legal document whereby the powers is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness.
' As far as services of respondents are concerned though the principle of Master and Servant is applicable but in the case of Mrs. Anisa Rehman v. P.I.A.C. And others 1994 SCM R 2232 it was held that the action of the Corporation violating the principles of natural justice will be without lawful authority and of no legal effect. It was further held that violation of the maxim could be equated with the violation of the principle of law warranting pressing into service Constitutional jurisdiction.
Thus we are inclined to hold that in the instant cases appellants terminated the services of the respondents in violation of the principles of natural justice because before passing impugned order no opportunity was given to them to defend themselves against an unilateral adverse action intended to be taken against them.
' It may be observed that as per details of the service of each of the respondents noted in the above paras they were in the employment of the appellants for more than a period of 6 months, therefore, at least a right to defend had accrued to them against the proposed action of termination of their services which in some of the cases had taken place without assigning any reason whereas in some of the cases it was alleged that they managed their induction in the employment of P.I.A.C. Under the directions of Prime Minster's Secretariat but before the. Federal Service Tribunal a consistent stand was taken by the appellants which has also been reproduced hereinabove. According to which the respondents were being removed because their appointments were not in accordance with law or it had taken place due to their influence etc. Thus apparent contradictions in the reasons disclosed in the termination orders as well as the stand taken by the appellants before the Federal Service Tribunal reflects mala fides of the appellants in removing the respondents from their services.
7. In such a situation, when the respondents have not been able to quote a single instance that any appointment was made by way of advertisement and when this practice was not being followed by the 'respondents, such a plea of getting appointment on unsolicited application cannot be raised or that it cannot be said that the very appointment order was void ab initio or that the same is against the rules, because when the respondents were not following their own rules themselves, how they could have raised such a plea against the appellant. The question of order being void ab initio has also elaborately been discussed by a Bench of this Tribunal in Appeal No,285-K/97 and the said judgment has been maintained by the Hon'ble Supreme Court in C.P.No,162/98. If at all it is presumed for the sake of arguments that the appellant was the recommendee of the Prime Minister's Secretariat and when there was no vacant situation, somebody amongst the high-ups should have taken the stand that there was no vacant post or that recommendation was being made without following the Regulations, i,e, applications should have been called by way of advertisement but this was not done. Once order is, rightly or wrongly, passed the same cannot be recalled by the department as has been held in a reported case appearing in 1996 SCM R 413, where their Lordships of the Honourable Supreme Court had held:-- "R.10(2) Constitution of Pakistan (1973).Art.212(3) Termination of service on ground that appointment of civil servant was irregular Service Tribunal ordered reinstatement of civil servant-- -Validity---Department's plea was not that civil servant lacked qualification for the post in question---Violation of rules could not be allowed to take benefit of its lapses in order to terminate services of civil servant merely because it had itself committed irregularity in violating procedure governing such appointment---Service Tribunal having reinstated civil servant could not be deemed to have committed any illegality or irregularity---Leave to appeal was refused in circumstances."
'The only document which the respondents have placed on record is Minute-I of 24-12-1997, which carries the Heading, "Note of Personal hearing removal from services of Corporation". In this Minute-I the entire case history was given and much stress has been laid on the case of Abdul Jabbar Memon but the respondents have lost the sight of the fact that in Abdul Jabbar Memon's case, only a procedure was laid down and nowhere it was mentioned that the persons who were previously appointed be ousted out. Excepting this Minute, nothing has been reproduced by the respondents to prove that it was a case of misconduct or that the appellant lacked qualification.
Even the assessm ent made by the Selection Board has not been placed before us, which could show as to whether the appellant was a fit person to be retained or otherwise. The very minute of 24-12-1997 from the headline shows that it was a pre-determined note which was specially prepared for the removal of the appellant.
8. Under these circumstances, we are of the view that the respondents have terminated the appellant without any justification and have violated the principles of natural justice. We, while, allowing the appeal, set aside the termination order dated 15-1-1998 and direct that the appellant be reinstated forthwith in the same Pay Group in which he was appointed. The period for which he remained out of job be treated as leave without pay."
6. We are of the firm view that the contentions of learned counsel for the petitioners are not borne out from the record, which is clear from the narration of the above paragraphs of the impugned judgment. The impugned judgment is the result of proper appreciation of material available and is entirely in consonance with law, which does not call for any interference by this Court.
7. For the foregoing facts, circumstances and reasons, this petition has no merit and substance, which is hereby dismissed and leave to appeal declined.
8. Before parting with the judgment, it would be necessary to point out that the judgment was announced by the Tribunal on 12-7-2001, and neither operation of the judgment of the Tribunal was suspended, nor any stay order was granted by this Court in favor of the petitioners. It was the duty of the petitioners to have complied with the well-reasoned judgment of the Tribunal constituted under the Constitution, but they have deliberately denied the lawful right of the respondent.
Petitioners are directed to comply with the judgment of the learned Tribunal and send a compliance report to the Registrar of this Court within a period of two weeks from today positively.
In case of their failure, the petitioners in person will be liable to be summoned in this Court.