' KHALID ALI Z. QAZI, J.--- Vide short order, dated 6-11-2008 this petition was allowed. This judgment records the detailed reasons.
2. The brief facts giving rise to the present petition are that the petitioner who is an Assistant Registrar in BPS-18 in the Pakistan. Engineering Council (PEC) received a notice, dated 12-9-2007 from the Secretary/Registrar of the PEC to the effect that he was not punctual and had absented from office on 13-8-2007 and 31-8-2007, in view whereof the said petitioner was alleged to be a bad influence on the subordinates. This notice was issued upon the report of one Syed Muhammad Rizvi, a Deputy Registrar on ad hoc basis on 1-6-2007. Vide reply dated 24-9-2007 the petitioner disputed the report of the Deputy Registrar and the allegations contained in the notice, dated 12-9- 2007 as baseless and incorrect. In the said reply the petitioner also hurled accusations against the Deputy Registrar (appointed on ad hoc basis) to the effect that he was absent-minded, unprofessional and unreliable towards his job, inter alia, in view of the fact that three professional engineering cases for registration were signed by the said Deputy Registrar under the stamp of "Assistant Registrar". It was also suggested in the said reply of the petitioner that the Deputy Registrar (appointed on ad hoc basis) was disqualified and had secured appointment on account of nepotism.
3. Though letter, dated 5-10-2007 the Secretary/Registrar of the PEC intimated to the petitioner that in view of his explanation/letter, dated 24-9-2007 the competent authority had decided to terminate his services with immediate effect. The petitioner has called into question his latter termination through the instant petition.
4. Mr. Muhammad Nawaz Sheikh, the learned counsel for the petitioner, has assailed the impugned letter of termination mainly on the following grounds:---
(a) the impugned order is in breach of natural justice;
(b) the petitioner was never absent on 13-8-2007 and 31-8-2007;
(c) the petitioner was never unpunctual;
(d) the Deputy Registrar (appointed on ad hoc basis) i.e, Syed Muhammad Rizvi is patently biased against the petitioner and has generated false reports against the petitioner;
(e) it was further alleged that the petitioner has been assigned the officiating charge of Deputy Registrar vide order, dated 29-5-2005 and had worked satisfactorily on the said post for three years without any complaint. Despite the fact that it was the petitioner's turn to be promoted as Deputy Registrar, Syed Muhammad Rizvi otherwise a disqualified person, was promoted out of sheer nepotism harboured by the superiors; (0 after the decision of the apex Court in the Mubeenus Salam's case PLD 2006 SC 602 the petitioner could not approach the Service Tribunal as section 2-A of the Service Tribunals Act, 1973 had been partially declared ultra vires in the latter judgment of the apex Court;
(g) therefore, having been left without any other alternate or efficacious remedy the petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution in terms of the parameters prescribed by a Full Bench of this Court in Muhammad Dawood v. FOP 2007 PLC (C.S.) 1046.
5. To substantiate the above contentions, Mr. Nawaz Shaikh, the learned counsel for the petitioner, has placed reliance upon the following:---
(a) Muhammad Ismail Shahid v. Executive District Officer (Revenue) 2008 SCMR 609, (b) Mian Tariq Javed v. Province of Punjab 2008 SCMR 598, (c) Naseeb Khan v. Divisional Superintendent, Pakistan Railways 2008 SCMR 1369, (d) Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602, (e) Muhammad Dawood and others v. Federation of Pakistan 2007 PLC (C.S.) 1046, (0 Muhammad Hanif Khan v. Pakistan and 2 others 1982 CLC 1396, (g) Government of the Punjab through Collector Faisalabad v. Hudabia Textile Mills, Faisalabad through Chairman 2001 SCMR 209,
(h) Messrs Haroon Brothers v. Drugs. Registration Board 1992 CLC 1017, (i) PIAC v. Manzoor Ahmed Khan PLD 1989 SC 158, (j) The Murree Bravery v. Pakistan through Secretary Government of Pakistan PLD 1972 SC 279, (k) Messrs Abdullah & Company v. The Province of Sindh 1992 MLD 293, (1) Messrs Rice Export Corporation of Pakistan Ltd. v. Karachi Metropolitan Corporation PLD 1990 Kar. 186, (m)
Habib Bank Ltd. v. Ghulam Mustafa Khairati 2008 SCMR 1516, (n) Abdul Salim v. Government of N.- W.F.P. 2008 SCMR 871.
6. Conversely, Mr. Siddique Mirza, the learned counsel for the respondents has argued as follows:-- -
(i) the petition is not maintainable as the service Rules of the PEC are not statutory in nature. Hence the relationship of the petitioner is governed by the principle of master and servant;
(ii) even otherwise the petitioner having failed to invoke an alternate remedy by way of a departmental appeal in terms of Rule 13 (Chapter VI) of the PEC Employees Service Rules, 1999, the said petitioner cannot maintain this petition;
(iii) the petitioner was. a late comer and has been relieved from service after having been given a show-cause notice and considering his reply thereto. Hence the principles of, natural justice have been fully adhered to;
(iv) the dismissal is only a "termination simplicity" and hence the petitioner is at liberty to receive all the benefits and experience certificates from the PEC and can try his luck elsewhere for a better future.
7. In support of his above contentions, Mr. Siddiq Mirza, the learned counsel for the respondents, has placed reliance upon the following judgments:---
(a) Ms. Zeba Mumtaz v. First Women Bank Ltd. And others PLD 1999 SC 1106, (b) Divisional Engineer Phones, Phones Division Sukkur v. Muhammad Shahid and others 1999 SCMR 1526, (c) Messrs Pakistan State Oil Co. Ltd. v. Muhammad Tahir Khan and others PLD 2001 SC 980, (d) Muhammad Dawood and others v. Federation of Pakistan 2007 PLC (C.S.) 1046.
8. We have considered the rival contentions of the parties, perused the record and the law on the subject.
9. The preliminary objection of the respondents touching upon the maintainability of the petition is required to be addressed first. In the case of Tanweer-ur-Rehman v. PIAC (C.Ps. Nos.D-2042, 2043 and 2044 of 2007 dated 25-6-2008 unreported) a Division Bench of this Court comprising one of us i.e, Khalid Ali Z. Qazi, J. Was pleased to observe as follows:--- "(16) In light of the above, the preliminary objection raised by the respondent is hereby rejected and the petition is found to be maintainable. In order to clarify the legal position it may be stated that a petition under Article 199 of the Constitution or a civil suit under section 9 of the C.P.C. Would lie for declaration, injunction or directions even if service rules are not statutory provided that:-
(a) the employer is an entity which is controlled or the majority of which is owned by the Government;
(b) the action complained of is in violation of law or other standards found in public/administrative law which have been dilated in Shahid Mahmood v. KESC 1997 CLC 1936 and Muhammad Dawood v. FOP 2007 PLC (C.S.) 1046. It may also be stated that the categories found iff- public/administrative law cannot be treated as static since "as an ideation judicial review has always been a dynamic concept and, to quote F.W. Maitland, 'each generation has enormous power to shape its own laws', its progressive growth with passage of time would bring into its fold newer subjects and enrich its armoury with bolder concepts."
' See Messrs Presson Manufacturing Ltd. v. Secretary Ministry of Petroleum 1995 MLD 15 and Qalandro v. The State 1997 MLD 1632;
(c) where an employee only complains of breach of contract and cannot establish violation of law or the standards found in public or administrative law, the remedy available for the employee is an action for damages;
(d) apart from maintaining an action for declaration/ injunction/ directions in the category mentioned in the sub-para.(b) above, the employer (sic. To be read as "employee") in addition or in the alternative will also have the right to persue the claim for damages, in the context of the particular case.
10. Admittedly, the PEC is an entity/statutory body created under the Pakistan Engineering Council Act, 1976 and is fully controlled by the Federal Government. This can be seen from the fact that through section 5 of the Pakistan Engineering Council (Second Amendment) Ordinance, 2005 section 4 of the Pakistan Engineering Council Act, 1976 has been amended, which provides that the Chairman and Vice-Chairman of the PEC are to be appointed by the Federal Government. Also the Chairman and Vice-Chairman could tender resignation in writing to the Federal Government, which also has the power to remove the Chairman and Vice-Chairman or the Registrar of, the PEC.
It is further provided that the age of superannuation for the Chairman, Vice-Chairman, Registrar and Secretary shall be 65 years. Also the Governing Body of the PEC, as provided through section 8 of the 2005 Ordinance, comprises, inter alia, the Chairman, Vice-Chairman and Registrar. Also there is nothing in the parawise comments of the respondents to the effect that the PEC is not controlled by the Federal Government. The PEC, thus, being a statutory entity controlled by the Federal Government, is amenable to the writ jurisdiction of this Court. The present petition under Article 199 of the Constitution is hence found to be maintainable.
11. It is true that under Article 199 of the Constitution, as also in the Muhammad Dawood's case (cited supra), a mere breach of contract was not found to be actionable. However, where the aggrieved person seeks enforcement of rights based upon violation of law or standards found in public/administrative law, the Court would be empowered under Article 199 to extend relief. In the present case the petitioner has complained of breach of the principles of natural justice. In contradistinction, the version of the respondents is that the petitioner was afforded an opportunity by way of a show-cause notice and hence there is no violation of the principles of natural justice. It may be stated without any reservation that the requirements of natural justice are not only restricted to the issuance of a show-cause notice. In fact the term "natural justice" has to be equated with "acting fairly". In this regard we are fortified by an excerpt from the celebrated book "Administrative law" by Sir William Wade, 6th Edition at page 524 wherein it has been observed as follows:--- "But it is now clearly settled, as is indeed self-evident, that there is no difference between natural justice and 'acting fairly', but that they are alternate in names for a single but flexible doctrine whose content may vary according to the nature of the power and the circumstances of the case."
12.It seems that the above excerpt was tacitly resounded by Sabihuddin, J., as he then was in Shahid Mehmood v. KESC 1997 CLC 1936. In that case also a show-cause notice was given and it was argued by the respondents that the requirements of natural justice had been complied with.
The contention was repelled by the Court and it was observed that despite having issued a show- cause notice the respondent had not acted fairly and hence the Court was pleased to equate the unfair action of the respondent with violation of law. We have further placed our hand on a judgment of the Honourable Supreme Court of Pakistan in Basharat Ali v. The Director, Excise and Taxation. 1997 SCMR 1543 wherein Ajmal Mian, Acting C.J., as he then was, was pleased to hold that the concept that "no person should be condemned unheard" has acquired a new dimension with the passage of time. It was further observed that the right of personal hearing did not mean "simipliciter hearing" but it was construed to mean "fair hearing". While further dilating upon this principle, it was found that the initial burden was on the department to prove a charge, which could not be done without the production of evidence. It was only when the department had produced initial evidence that the employee had the right to produce evidence in rebuttal. The Court also observed that where the allegations against the employee were serious in nature, which were denied by him a regular inquiry could not be dispensed with.
13. Applying the above principles to the facts of present case one may see that the allegations contained in the show-cause notice dated 12-9-2007 are that the petitioner unauthorisedly absented himself on 13-8-2007 and 31-8-2007 and also that he was unpunctual in attending office, in view whereof he constituted a bad influence upon his subordinates. The allegations have been squarely denied by the petitioner in his reply dated 24-9-2007. In view of such a denial it was mandatory upon the respondents to have constituted a proper inquiry. Also there is nothing in the parawise comments filed by the respondents before this Court to substantiate the allegations that the petitioner had unauthorizedly absented himself from duty on 13-8-2007 and 31-8-2007 and that he was unpunctual in attending office. Interestingly, in the said D parawise comments it is not even alleged by the respondent that the petitioner was absent on the two alleged dates i.e, 13-8- 2007 and 31-8-2007. It has only been conveniently mentioned that the petitioner was a late-comer, Thus, this is a case where the initial burden to substantiate the petitioner's absence on the two alleged dates and the fact that he was a habitual late-comer has not been discharged by the respondents. To our mind this is not even a case where one could have ordered a full-fledged inquiry, as held in the Basharat Ali's case (cited supra), the department has not even discharged the initial burden. The department not having discharged the initial burden, to us, this is a classic case where the respondents have acted unfairly. If an allegation is E levelled against the employee, a duty is cast upon the employer to substantiate it through concrete material or evidence. The type of evidence to substantiate the charge of absence or impunctuality is always available with the employer but in this case the respondents have not placed any material on record to substantiate their charge. Thus, the unfairness in this case, touching upon the failure of the respondents to discharge the initial burden, amounts to violation of the principles of natural justice, which is to be equated with violation of law, warranting cognizance by this Court under Article 199 of the Constitution.
14. Apart from the above, we are also of the considered view that the kind of charges which have been levelled against the petitioner (i.e, absence of two days and the vague allegation of impunctuality) could not have warranted the extreme action of termination. In other words, the extreme action of termination by the employer in this case is not commensurate with the alleged absence, if any, of only two days, on the part of the employee. In this context we may cite Guizar Hussain v. WAPDA 1989 PLC (C.S.) 292 in which the Federal Service Tribunal was pleased to observe that the unauthorized absence of only five days did not justify the action of termination.
15. The objection of the respondents that an alternate remedy in the shape of representation/departmental appeal under the Service Rules of the PEC not having been availed, the petition would not be maintainable, is also without any substance. The objection is rather self- destructive. On the one hand the respondents have themselves admitted that the Service Rules are not statutory in nature, whereas on the other hand they contend that without exhaustion of a non- statutory departmental appeal the petition could not have been entertained. The argument is meritless. In J order to constitute a bar towards maintainability of a petition on account of availability of an alternate remedy, a statutory right of appeal is required to exist. In fact the law on the point is rather stringent. Even a revisional remedy cannot, in particular circumstances of the case, be construed as an alternate remedy see Hussain Bibi v. Muhammad Din 1976 SCMR 395. In C.P. D-1807 of 2006 (unreported) a Division Bench of this Court comprising Anwar Zaheer Jamali, C.J. And Khalid Ali Z. Qazi, J. (the judgment was authored by me) was pleased to observe that the requirement to move a representation under section 9 of the RSO, 2000 although could be a pre- condition to the filing of an appeal before H the Tribunal under section 10, the same could not be construed to be a pre-condition to the filing of a constitutional petition under Article 199 of the Constitution.
16. Lastly, the contention of the respondents that the impugned termination cannot be interfered by this Court as it constitutes a termination simpliciter, is also devoid of any merit. A particular set of allegations, contained in a show-cause/explanation notice, were leveled against the petitioner, and an explanation thereto was offered by theiK petitioner, which was not accepted. Even the order of termination states that the petitioner was being terminated in view of the explanation tendered by him. In other words, the explanation offered by the L petitioners to the allegations of the PEC was not found to be satisfactory. Thus, by no connotation the termination can be termed as a termination simpliciter. We may cite here for convenience the case of Riaz Ali Khan v. Pakistan PLD 1967 Lah. 491 wherein it has been held that where the dismissal or removal is initiated on account of misconduct or unsatisfactory work then the employee is eligible to be given a show-cause notice. In Mushtaq Ahmed v. Islamabad Omni bus Service 1976 PLC 254 it was held that a termination due to misconduct under the garb of termination cannot be effected without a proper show-cause notice and enquiry. The very fact that the respondents have chosen to invite an explanation from the petitioner establishes that the termination was anything but a termination simpliciter.
17. In any event the concept "termination simipliciter", in respect of the employees of statutory corporations or entities controlled by the Government, has undergone a complete metamorphosis.
In Nadeem Ahmed v. PIAC 1998 PLC 19 (Labour) a Division Bench of this Court was pleased to observe that the termination of employment could not be called a "termination simpliciter" when no reasons were assigned. It was further observed that in default of reasons it could justifiably be assumed that the employment was terminated for extraneous reasons. In Dr. Mazhar Naeem v.
PIAC 2001 PLC (C.S.) 824 the Federal Service Tribunal was pleased to hold that even where the termination of a civil servant/employee of a statutory corporation was a "termination simpliciter" he could not be terminated without adopting a proper procedure and complying with the principles of natural justice. This order of the Federal Service Tribunal was upheld by the apex Court in PIAC v. Dr. Mazhar Naeem (C.P.L.A No,1062-K of 1998, dated 7-9-1998 (unreported). Earlier, the Labour Appellate Tribunal of Sindh in J&S Enterprises (Pvt.) Limited v. Muhammad Jahangir 1996 PLC 188 (Laboutl has been pleased to observe that regular employees were entitled to show-cause notices and their service could not be terminated simpliciter.
18. The upshot of the above discussion is that the petition is allowed with costs and the impugned order of termination dated 5-10-2007 is M hereby set aside. The petitioner is reinstated into service with all back-benefits.